Novikov’s Ghost: How the NACP together with the government proposes to “improve” anti-corruption legislation

Members of Parliament must improve the mechanisms of anti-corruption expertise that draft laws undergo in the Verkhovna Rada. The National Agency on Corruption Prevention (NACP) requests this, supporting the government’s initiative to amend the “Law on Prevention of Corruption” (draft law on amendments No. 9457). A letter to the legislators was sent by the head of the NACP, Oleksandr Novikov, a few days before he left his post.

Both Ukrainians and Western partners realized the importance of quality anti-corruption expertise when discussing the controversial urban development “reform” (No. 5655) and the initiative regarding the construction of seaports on the riverbanks (No. 9664) led by the head of the “Servant of the People” party, Olena Shuliak.

Unfortunately, the proposals laid out in the draft law do not eliminate but add new corruption risks during the NACP’s anti-corruption expertise.

Why is it not possible to fight corruption?

It’s possible to create an ideal National Anti-Corruption Bureau, a Special Anti-Corruption Prosecutor’s Office, and a High Anti-Corruption Court, but this won’t help if corrupt norms exist at the level of the law.

Specifically, anti-corruption expertise (hereinafter – expertise) must ensure the impossibility of new risks appearing in laws, as well as identify and eliminate existing risks. Without this, it’s futile to hope for the transparency of state processes, especially future reconstruction.

The “Law on Prevention of Corruption” has been changed about 70 times over ten years. However, Article 55 remains unchanged.

For example, “mandatory anti-corruption expertise is conducted by the Ministry of Justice of Ukraine, except for the anti-corruption expertise of draft regulatory acts submitted for consideration to the Verkhovna Rada of Ukraine by the people’s deputies of Ukraine, which is conducted by the committee of the Verkhovna Rada of Ukraine whose jurisdiction includes the issue of combating corruption.”

According to this article, does the Verkhovna Rada Committee on Anti-Corruption Policy necessarily conduct expertise of legislative initiatives by MPs or not? According to the rules of the Ukrainian language, with such wording – necessarily. But in reality, it’s all at the committee’s discretion. This is the first legal uncertainty, and that’s a corruption risk.

What does the profile committee check? Projects “submitted for consideration” by MPs. Are these initial drafts? Or are these bills at any stage, including those changed beyond recognition before the second reading, since the bill remains “submitted for consideration” by MPs? Again, legal uncertainty.

According to the Regulations of the Verkhovna Rada, the profile committee does not have the authority to check projects after amendments for the second reading. But the parliament has not changed the Regulations in this part since the times of the traitor Yanukovych. And although a new law appeared, keeping this corruption risk at the level of the Regulations is very important for someone.

The norm regarding that the National Agency for Prevention of Corruption (NAPC) has the right to conduct anti-corruption expertise of “projects of normative-legal acts that are being submitted for consideration” (part 5 of Article 55) allows for three interpretations.

Thus, the anti-corruption committee should conduct expertise of projects “submitted for consideration,” and the NAPC of those “being submitted.” For literature, this might not be so crucial, but in law, it’s a fundamental difference in legal concepts. Can the NAPC check projects that are only being submitted for consideration and haven’t yet been categorized as already submitted? Or should “submitted” and “being submitted” be interpreted more broadly as synonyms?

And the same uncertainty as with the anti-corruption committee — only the initial drafts being submitted, or at any stage of consideration and revision? By the way, the NAPC interprets this directly opposite to the Verkhovna Rada. It has outlined in its methodology (Section II, paragraph 2) that it can check everything in any edition.

How does the NAPC determine that expertise is needed? The law says: “may conduct at its own initiative in the order it establishes.” And no clarification when the NAPC is obliged to conduct the expertise. This is called “excessive and unjustified discretionary powers” — a typical corruption-generating factor.

How many times can the NAPC conduct expertise of a project during its consideration in the Verkhovna Rada, considering that the legislative initiative can change radically, and corruption risks can be introduced by amendments to amendments? The law does not answer this question.

The National Agency refused the National Union of Architects of Ukraine in conducting expertise of the urban development “reform” (No. 5655) before the second reading. Their arguments: they had already checked the first edition, and the law does not provide for conducting a repeated expertise. But this contradicted the already mentioned Methodology of the NAPC, which provides for the possibility of repeated expertise. However, Methodology is not a law, and there is no liability for its violation.

All this leads to the emergence of corruption: the authority can freely change its position in the interests of individual persons without any risk of liability. Formally, it does not violate the law.

The results of the expertise, including public expertise, are subject to mandatory consideration by the issuer of the relevant act (part 8 of Article 55 of the Law on Prevention of Corruption).

What are the chances of changing this?

To rectify the situation, according to the Anti-Corruption Strategy for 2021-2025, one would have to achieve strategic results such as: “eliminating conflicts, gaps, and other corruption-generating factors that lead to ambiguous interpretations, violations of the principle of legal certainty, and systemic corruption risks in the areas of corruption prevention and priority areas identified in Section 3 of this Anti-Corruption Strategy” (subparagraph 2.1.3).

The same goal is outlined in the National Agency for Corruption Prevention (NACP)’s State Anti-Corruption Program approved by the government (subparagraph 1.1.3.3).

However, practical achievement of this goal through the implementation of the State Anti-Corruption Program is impossible. All identified measures are exclusively aimed at eliminating corruption risks in the “priority areas identified in Section 3 of the Anti-Corruption Strategy”, and the State Anti-Corruption Strategy does not provide for measures to address corruption risks in anti-corruption legislation.

What originally proposed to change the NACP?

The project prepared by the National Agency for Corruption Prevention (NACP) (No. 9457), introduced by the government, does not provide for addressing the aforementioned existing risks. The main proposed change is a simple transfer of authority to conduct mandatory expertise from the Ministry of Justice to the NACP, as envisaged by the State Anti-Corruption Program.

At the same time, the NACP proposes to reduce its current powers by depriving itself of the right to conduct expertise during the consideration and revision in parliament of government or presidential initiatives, leaving only the right to review projects by MPs (changes to part 5 of Article 55 of the Law “On Prevention of Corruption”).

Such an interesting “anti-corruption” initiative: during the preparation of bills for the second reading, any corruption risks can be introduced through amendments, and the specialized anti-corruption body itself proposes to prohibit its intervention in the situation.

Also, there is a big question about the NACP’s ability to perform the work, the scope of which is expected to increase many times over.

However, the acting head of the NACP, Artem Sytnyk, is convinced: additional budget funding will not be needed. But then the question of selectivity and quality of checks will arise.

What does the NACP propose now?

The chairman of the NACP, Oleksandr Novikov, sent his proposals to the committee in January 2024, five days before leaving his position.

He suggests completely rewriting Article 55 of the Law “On Prevention of Corruption”, which has remained unchanged for so many years.

The NACP proposes to leave corruption risks during the consideration of the findings of public expertise and during the conduct of expertise by the National Agency on projects under consideration by the parliament.

The Anti-Corruption Committee of the Verkhovna Rada may be fortunate. If currently it can be compelled to conduct expertise on all projects by MPs, then now the NACP proposes… to make this non-mandatory.

According to the State Anti-Corruption Program, the NACP is supposed to take over the Ministry of Justice’s responsibilities for conducting mandatory anti-corruption expertise regarding government and presidential legislative initiatives.

However, according to the NACP’s proposals, mandatory expertise now ceases to be mandatory. It will only be mandatory “if, as a result of monitoring of such a draft act, the presence of a corruption factor is established.” This directly contradicts the State Anti-Corruption Program (Appendix 2, subsection 1.1.3.2.1), which envisages assigning to the NACP the duty to conduct expertise on all acts submitted for consideration by the Cabinet of Ministers.

The law does not propose establishing the meaning and content of “monitoring” by the NACP. Thus, we have an expansion of discretionary powers (corruption factor, according to the classification of the National Agency) — the NACP will be able to decide manually whether to conduct expertise on acts. The risks here are enormous.

If currently the relevant body conducts mandatory expertise, but “does not notice” corruption risks in the interests of certain individuals, then the direct executors and the leadership approving the results of the expertise can be held accountable. Among other things, the Public Council under it is involved in conducting the expertise in the NACP, which provides additional control over the activities of officials.

The proposed monitoring by the NACP is not an expertise where the project should be thoroughly analyzed to identify all existing risks. It will be impossible to prove violations by officials who “did not notice” corrupt norms during the monitoring. Thus, a convenient corruption scheme can easily be built from the leakage of expertise: they may simply not conduct it, citing the results of monitoring. Moreover, the Public Council cannot control the process anymore because its involvement in monitoring is not provided for.

According to the NACP’s proposals, the conclusion of expertise on drafts of legislative acts under consideration by the government must undergo mandatory review by the main developer, who is obligated to eliminate identified corruption factors. It sounds great, but here’s the catch: if the corruption factors are not eliminated, this body must inform the NACP of the reasons, and what to do next is decided by the Cabinet of Ministers. It’s a sort of non-mandatory mandatory requirement.

It is proposed by an imperative norm to prohibit the government from considering and adopting projects that have not been sent for verification to the National Agency. This is a good innovation, but at the same time, the NACP gets the right to decide whether to conduct expertise based on the results of monitoring. In terms of combating corruption, what difference does it make why the expertise was not conducted – because the government did not send the documents to the NACP or because they agreed with the Agency not to “see” corruption risks?

The expertise of current laws, Cabinet resolutions, and presidential acts, which should be carried out by the Ministry of Justice, is provided for by the law on corruption prevention (Article 55). These powers are planned to be transferred to the NACP and expanded to cover all current legislative acts.

However, how will the National Agency be able to adequately handle such volumes of work if the number of legislative acts issued by ministries, other government bodies, and local authorities is tens, if not hundreds, of times more than laws and Cabinet resolutions?

There won’t be effective work with the available resources. Perhaps that’s why the NACP proposes to expand discretionary powers by removing the current legal requirements to conduct such expertise according to an annual plan.

The proposal that the subject responsible for adopting legislative acts must take measures within a three-month period to eliminate identified corruptive factors looks positive. However, does this grant too much unbalanced power to the NACP?

The National Agency will be able, at its own discretion and without a court decision, to issue mandatory instructions to the President of Ukraine, Parliament, the Government, and other government bodies. In democratic countries, this is the role of the courts. Interestingly, the obligation for the NACP to appeal to court with an administrative claim has not been provided for.

Finally, the planned mandatory publication of expertise conclusions applies not only to existing legislative acts but also to projects. However, there is a nuance: this applies only to the NACP, not to the Ministry of Justice or the Anti-Corruption Committee.

It is also proposed that the NACP, the Ministry of Justice, and the Anti-Corruption Committee will work according to a single methodology for conducting expertise, to be approved by the NACP after coordination with the other two bodies. While this is positive, it should be noted that anything could be included in this methodology because even the basic requirements for the future methodology are not outlined in the law.

Thus, the NACP does not propose to eliminate existing risks but rather urges the parliament to add new ones.

Former NACP Chairman Novikov expressed hope that the new chairman would be “someone from within the NACP.” That is, a former subordinate of Novikov.

The proposals submitted to the parliament aim to turn the NACP into a monopoly in conducting expertise while expanding discretionary powers. The National Agency is expected to gain a plethora of new rights without the obligation to use them.

In simpler terms, the main anti-corruption body may turn into a “candle factory” and operate manually on political orders when it comes to anti-corruption risks.

Without quality expertise, there can be no real hope for success in the fight against corruption in Ukraine.