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20 July, 2011  ▪  Andriy Skumin

Better When Corrupt

Despite its loud declarations and new anti-corruption legislation, the government is in fact putting off the actual fight against corruption indefinitely

On July 1, 2011, the new anti-corruption laws “On the Foundation of Preventing and Counteracting Corruption” and “On Amendments to Certain Legislative Acts of Ukraine Regarding Responsibility for Offences of Corruption,” passed by the Verkhovna Rada on April 7, 2011, entered into force in Ukraine.

Curiously, from the beginning of the year and until this date the country had no anti-corruption law except the Criminal Code. This is the result of the “benign” efforts to shoot down previous anti-corruption draft laws and push through “the president's anti-corruption proposals” instead.

However, despite the generally sound norms contained in the document, the government is in no hurry to stem corruption in reality.

The wrong targets

The new laws are applicable not only to officials in government bodies and local self-government but also in enterprises, institutions and organizations financed from the state and local budgets, as well as auditors, notaries, assessors, bankruptcy commissioners, those who perform organization, administration and management functions in privately-owned companies, officials in international organizations, and so on.

However, it is a known fact that citizens suffer the most from so-called everyday corruption which they face on every corner as they try to obtain services from housing offices (particularly from the technical staff), medical institutions and schools. The legislation is silent about these “players.” So it appears that the government has nothing to offer to schools and hospitals except keeping them on a corruption-related diet.

Moreover, the laws include some novelties that address current realities. For example, members of territorial and district election commissions are not subject to prosecution for corruption. This may be one of the first steps on the way to imparting real meaning to the “Yes to falsifications!” slogan in the 2012 election.

Lobbying on a smaller scale can also be seen. Under the anti-corruption laws adopted in 2009 and repealed by the new government, “rank-and-file and administrative staff of tax police bodies” could be, among others, prosecuted for corruption. Now this category is limited to administrative staff only. Curiously, MPs have granted such privileges to rank-and-file staff of the Interior Ministry, prosecutors’ offices and customs offices.

No to control, no to checks

MPs have a few more pleasant (for corrupt officials) surprises up their sleeve. For example, even though applicants to positions in government bodies and local self-government are supposed to undergo a special background check, no-one will really carry out an extensive investigation. They will only check the data personally submitted by the candidate: whether he or she was previously charged with criminal or administrative corruption offences; whether the submitted information on property, income, spending and financial obligations is true; whether their education diplomas are genuine, and so on. Moreover, under the transitional provisions, this norm enters into force on January 1, 2012. Why not on July 1, 2011?

In January 2009, everyone wondered about an almost revolutionary norm in an anti-corruption law which made it mandatory for officials to declare not only their income but also expenses. How could MPs pass such draconic legislation if it pertained to them directly? In fact, it was very simple. They reported to the electorate about the law but put off its implementation first by four months then until January 1, 2011, and finally scrapped it altogether before the New Year. In short, no official or MP has so far reported their expenses and is very unlikely to do so. The new document, dated April 7, 2011, postponed the implementation date of Article 12 (Financial control) until January 1, 2012. But what is this financial control? It includes two things. First, declarations on property, income, expenses and financial obligations for the previous year. Second, notification to the state tax service about opening any currency accounts in a non-resident bank office. What is so technologically insurmountable about this norm that it cannot go into effect immediately? This is a question that should be addressed to MPs who passed the law and the president who signed it.

Grandmother’s gifts

The new law forbids, first, public servants from receiving gifts (donations) for their decisions, actions or any entity in the interests of other people. Second, no gifts from subordinates are allowed on pain of a UAH 850-1,700 fine and confiscation of the gift.

However, the picture is not so dim for corrupt officials: Part 2 of Article 8 says that persons authorized to perform the functions of the state “may accept gifts that correspond to generally accepted notions of hospitality and donations.” Of course, there are no clear criteria of what these are. Thus, kickbacks may be disguised as personal gifts on the occasion of a birthday, for example. In other words, if a man comes into John Doe’s office and says: “Here is to you as a token of gratitude for appointing my nephew to an office,” it is corruption. However, if this same person enters the office and says with a friendly wink: “My best wishes to you on the occasion of the New Year (Whit Sunday, Constitution Day, new home, birthday, patron’s day, etc.),” it is a gift that conforms to “generally excepted notions of hospitality.” Furthermore, the people who drafted the law must know little about “corruption fees” outside Kyiv. They set the limit for one “hospitality” present at UAH 470.5 as of now which is no small sum for, say, an official in a provincial state administration or city council.

Another strange regulation concerns the annual cap on gifts: no more than the size of the minimum wage (UAH 941) from “one source,” but an unlimited number of one-time gifts from “different sources,” i.e., various people.

Considering the way Viktor Yanukovych’s team is persecuting its opponents now, it is safe to assume that his government will use an equally selective approach in enforcing this anti-corruption legislation.

Use it or lose

Despite all its drawbacks, the new anti-corruption legislation could work. There is one condition, though: citizens have to actively apply its norms to protect themselves against corruption in government bodies. For example, if a government body fails to reply to your request for information or to your complaint, you must contact law enforcement agencies so that they open an anti-corruption investigation. An official who pays a UAH 425-850 fine for failure to provide information or for providing incomplete information and finds his name in the register of “corrupt officials” will approach his duties differently the next time.

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