The topic of bribery is so often exploited by Ukrainian politicians and anticorruption rhetoric is so common that any initiative to fight this evil has become a kind of sacred, unassailable category. Either for fear that their opponents would accuse them of conniving in corruption or in a sincere belief that they were making good on their pre-election promises, opposition MPs almost unanimously supported Law No. 224-VII “On Making Amendments to Some Legislative Acts of Ukraine to Implement the State Anticorruption Policy” in May 2013. A total of 373 MPs voted in favour of the bill in a display of uncommon unity between the government, the opposition and the president, who wasted no time signing the bill into law. It may not be until the presidential election that the opposition fully realizes what a large mistake it has made. The problem is that wrapped in a nice packaging of fighting corruption, the law contains norms that turn government officials and officials in local self-government bodies into obedient servants ready to indulge any whim of the ruling regime.
One of the primary motivations for public service and service in local self-government is the high pension such officials receive. (Naturally, this is only true of honest or relatively honest individuals. It is no secret that many view government service as a way to quickly make a fortune through bribes. A survey by Transparency International found that 88 per cent of Ukrainians consider the public sector corrupt.) The salaries of public servants are low and the state does not build many flats specifically for them. But the pension stands out. Under the law on government service and service in institutions of local self-government, a person who has been a government (municipal) servant for 10 years and finishes his or her career in a government body is due to receive a pension equal to 80 per cent of his or her salary. According to the Pension Fund, the average pension of the former military servicemen and employees of law enforcement bodies is UAH 2,156, while former customs officers receive UAH 4,441 (under the Customs Code) and prosecutors UAH 6,588 (under the Law “On the Prosecutor’s Office”). The pensions of officials in district-level bodies are lower, but are also in the neighbourhood of UAH 2,000, which is not so bad compared to Ukraine’s average pension of UAH 1,478.
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However, with the passage of the anticorruption law from 14 May, this motivation will be quite tentative. Any manifestation of disloyalty to the administration may cause an official to lose his or her cherished pension. Formerly, an official could only be stripped of his pension “in connection with conviction for an intentional criminal offence committed with abuse of office”. Law No. 224-VII replaced this with “bringing to criminal responsibility for an administrative corrupt offence connected with a violation of limitations envisioned in the Law of Ukraine ‘On the Foundations of Preventing and Counteracting Corruption’”. This law lists the following anticorruption limitations: regarding the use of office, concurrent employment and other types of activity, receipt of gifts (donations) and official subordination between “close persons”. The mismatch between the gravity of such violations and resulting punishment is astounding. For example, an official in a district state administration who has worked in public service for 20 years risks losing his special pension if he conducts a few lectures for students during his working hours. Even the specialists from the Scientific-Expert Directorate of the Verkhovna Rada wrote in their conclusion that “these provisions of the draft law are unjustified.”
The problem is that proper legal regulation of some cases of limitations is lacking today. For example, concurrent employment and other types of activity are, according to law, “other paid activity (except teaching, scientific and creative activity, medical practice, instructorship or referee practice in sports) or entrepreneurial activity if otherwise not stipulated by the Constitution or the laws of Ukraine”. However, this norm fails to answer a number of questions. Do the limitations pertain to concurrent employment based on only a labour contract or also on a civil contract, i.e., permanent concurrent employment or a one-time arrangement? Is other work in non-working hours permitted? What is the procedure for exercising the right to concurrent employment, for example, in teaching? Does teaching activity [Ukrainian ‘vykladatska diyalnist’, usually university teaching. – Transl.], also include teaching in school? Essentially, the only piece of subordinate legislation which partly addresses these questions is the Cabinet of Ministers Decree “On Concurrent Employment of Workers of Government Enterprises, Institutions and Organizations”, but it was issued 20 years ago and is outdated, to put it mildly. This means that courts controlled by the powers-that-be are free to interpret the actions of officials in ways convenient to them.
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Gifts also pose great risks for officials. For example, does the legislatively fixed limitation on gifts (donations) cover only goods or also services? If the organizer of an international conference abroad pays for the room and board of a Ukrainian government official who is officially dispatched to attend the conference, will it be counted as an improper gift? There are countless questions like this, all of which entail the loss of cherished pensions.
However, there are much easier ways to “set up” an official to cause him or her to lose the pension. For example, a subordinate may give a birthday gift worth UAH 600 to his boss. This is enough to strip the boss of a good pension the next day.
There were 155,480 government officials with more than 10 years of service in Ukraine in 2012. They already had the right to receive their high pensions. In local self-government bodies, the figure was 42,160. The 14 May 2013 law essentially turns these nearly 200,000 officials into true serfs of the ruling regime. The smallest manifestation of disloyalty to the government on their part may lead to a loss of their pensions. The above figures do not include officials in government agencies who have 8-9 years of service in and are no less motivated to receive higher pensions. According to the National Agency for Public Service, there were 372,850 and 98,000 officials, respectively, in these groups in 2012.
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The new law also jeopardizes those who are still far removed from retirement but treasure their jobs. This law made amendments to several other laws (“On Service in Local Self-Government bodies”, “On the Police”, “On the Security Service of Ukraine” and “On the Prosecutor’s Office”) by introducing the above-mentioned limitations (regarding concurrent activity, gifts and subordination of relatives, all of which are envisaged by the Law “On the Foundations of Preventing and Counteracting Corruption”) as grounds for termination of service in, respectively, local self-government bodies, the Interior Ministry, the Security Service and the Prosecutor’s Office. Moreover, this norm is now part of the Labour Code as grounds for terminating a labour contract. Many people associate this legislative novelty with the trend observed the past two to three months: officials are quitting their jobs in the police and government bodies en masse.
More than 90 per cent of government officials work in the regions – in oblast and district centres, in villages and settlements where a job in a state administration or the executive committee of a council is not only very prestigious by provincial standards but also the only one available to a person with a university degree. The new law only adds to the dependency of such employees on their bosses.
Of course, corrupt officials can and should be fired and stripped of their pensions. However, anticorruption measures are only possible given several preconditions: when the grounds for firing and loss of special salary are corrupt acts that involve the consent of the official; when decisions to impose sanctions are made by an independent body rather than the boss or an agency directly or indirectly connected to the president. Otherwise, the anticorruption law changes its functionality: it can easily be used to blackmail all officials in government bodies who refuse to assume “additional tasks”, for example, ensuring a “positive result” in the 2015 elections.
The anticorruption law changes the very way the norm functions: now it can easily be used to blackmail any civil servant working for the government.
