Anti-corruption changes to Ukrainian legislation along the way to Europe

The experience of Ukraine’s European integration in times of war is unique.  On the fifth day of Russia’s full-scale invasion, on 28 February 2022, Ukraine applied for EU membership, and on 1 March 2022, the European Parliament adopted a resolution supporting the granting of EU candidate status to Ukraine, a response from a united Europe to Russia’s imperial ambitions. Fighting against the enemy, Ukraine gained EU candidate status on 23 June 2022 [13]. On 14 December 2023, a historic event took place – the European Council agreed to start negotiations on Ukraine’s accession to the EU [3]. European Commission President Ursula Von Der Leyen said: “The Commission recommends that Ukraine be granted a European perspective. This is, of course, subject to a number of important reforms in the country. In the Commission’s view, Ukraine has clearly demonstrated its desire and determination to live up to European values and standards.” [2]

To join the EU, Ukraine must implement crucial reforms, including revamping the Constitutional Court, continuing judicial reform, combating corruption and money laundering, implementing anti-oligarch laws, harmonising audiovisual legislation, and amending legislation on national minorities.

The war has eliminated any shreds of pro-Russian sentiment, uniting Ukrainians around the European idea. However, procurement scandals have plagued Ukraine’s defence sector since 2022 [1], prompting Parliament to pass laws introducing transparency in defence procurement through public reporting on the Prozorro electronic system. The Ministry of Defence has also established a Public Council to oversee these procurements [5].

European integration has continued in foreign economic activity and customs. Amendments to the Customs Code have unified procedures for declaring military equipment and other goods with EU and NATO standards, simplifying the import of military goods, medicines, and fuel [4]. Additionally, provisions on determining the country of origin of goods from the EU Customs Code have been introduced, ensuring the implementation of free trade agreements [6].

The tradition of democratic European countries is that there should be one law that regulates the main aspects of procedures at all levels when an ordinary citizen has to resolve something with a government or local government. In EU countries, the principles of administrative justice are applied to ensure legitimate decisions and effective protection of the rights of citizens and legal entities. They have codified the principles and rules in laws on administrative procedure. Ukraine does not have such a codification, creating ample opportunities for corruption, and not all government officials support the Law on Administrative Procedure. A post-Soviet stereotype stands in the way of this law. In the Soviet Union, there were no laws on executive bodies, only instructions to guide officials. As a result, different ministries, services, and local authorities made decisions according to different procedural rules.  On 15 December 2023, the Law of Ukraine “On Administrative Procedure” [7], which had been in development for 20 years, came into force. The law clearly indicates the subject matter and scope of the draft law, the terms and principles of administrative procedure; participants in administrative proceedings and persons assisting in the proceedings, their legal capacity; provisions on documentation and timing of administrative proceedings; and administrative proceedings at the request of a person and at the initiative of an authority, the basic requirements for an administrative act, and the focus on a positive result.

To strengthen judicial independence and anti-corruption efforts, amendments to the Criminal Procedure Code have granted the Specialised Anti-Corruption Prosecutor’s Office the status of a separate legal entity with its own property, accounts, and independent structure. [8]

One of the requirements for the start of EU accession negotiations was the adoption of procedures for the selection of prosecutors and judges. Thus, on 27 July 2023, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Clarification of Provisions on Competitive Selection of Candidates for the Position of a Judge of the Constitutional Court of Ukraine” [9] strengthened the role of international representatives in the selection of judges of the Constitutional Court. According to this law, the advisory group of experts will consist of six people – one each appointed by the President, the Verkhovna Rada, the Council of Judges, and the Cabinet of Ministers on the proposal of the Venice Commission, and two delegated by international organisations that have been providing technical assistance to Ukraine in the field of constitutional reform and the rule of law for a long time. The powers of the expert group are also being strengthened: candidates who receive an unfavourable review from the group will be eliminated from the competition.

The launch of the anti-corruption agency was one of the EU’s requirements for a visa-free regime with Ukraine, and its creation is envisaged by the Law of Ukraine “On Prevention of Corruption” [10]. The National Agency on Corruption Prevention (NACP) has a preventive function, including checking the declarations of civil servants and their lifestyle, disclosing any information on corruption or abuse of office. During martial law, on 24 February 2022, the NACP closed access to the public part of the Register of Declarations. This was done to prevent the aggressor from obtaining data on Ukrainian civil servants and politicians. The Register of Declarations was reopened on 10 December 2023. According to the Laws of the Verkhovna Rada of Ukraine “On Approval of the Procedure for Monitoring the Lifestyle of Declaring Entities” [11] and “On Amendments to the Law of Ukraine “On Prevention of Corruption” to Bring Certain Provisions in Line with the Conclusions of the European Commission on Ukraine” [12], the NACP will officially compare the lifestyle of declarants with the existing standard of living and income received according to the declarations, as well as check where the civil servants or their family members took funds to purchase property before they took office.

EU legislation is divided into 35 basic chapters. These cover areas ranging from competition, free movement of goods and services to capital markets, social, media and cultural policy. According to the Institute for Economic Research and Policy Consulting, Ukraine needs to harmonise about 3,000 out of the total 27,000 legislative provisions with EU requirements as a matter of priority. [14]

Ukraine’s European integration during wartime is a unique experience, but the country remains steadfast in its commitment to implementing the necessary reforms and aligning its legislation with European standards, solidifying its partnership with the EU.

References

1. ‘High-profile corruption scandals in the Ministry of Defence: who are the “heroes” who profited from the Armed Forces?’, TCN.ua, 29 January 2024

2. ‘The European Commission has published key findings on Ukraine and recommended to start negotiations on EU accession’, Suspilne, 8 November 2023 

3. ‘The European Council decided to start negotiations on Ukraine’s accession to the EU’, LIGA ZAKON, 15 December 2023 

4. Customs Code of Ukraine, Document 4495-VI, Parliament of Ukraine, 13 January 2024  

5. On Amendments to the Law of Ukraine “On Defence Procurement” on the Introduction of Transparency in Defence Procurement (except for information on the procurement of defence goods, works and services that constitute a state secret) with the provision of protection of state customers from military threats for the period of martial law in Ukraine, Law of Ukraine dated 24.02.2023, ID: 2958-IX.

6. On Amendments to the Customs Code of Ukraine to bring the procedure for determining the country of origin of goods in line with the Customs Code of the European Union and to ensure the implementation of Ukraine’s free trade agreements, Law of Ukraine dated 14.07.2023, ID: 3261-IX.  

7. On Administrative Procedure, Law of Ukraine dated 17.02.2022, Revision of 01.01.2024, ID: 2073-IX. 

8. On Amendments to the Criminal Procedure Code of Ukraine and Other Legislative Acts of Ukraine to Strengthen the Independence of the Specialised Anti-Corruption Prosecutor’s Office, Law of Ukraine of 08.12.2023. Identifier: 3509-IX.    

9. On Amendments to Certain Legislative Acts of Ukraine on Clarifying the Provisions on Competitive Selection of Candidates for the Position of a Judge of the Constitutional Court of Ukraine, Law of Ukraine of 27.07.2023. Identifier: 3277-IX. 

10. On Prevention of Corruption, Law of Ukraine of 14.10.2014. Id: 1700-18.   

11. On Approval of the Procedure for Monitoring the Lifestyle of Declaring Entities, Order of the National Agency for the Prevention of Corruption of 26.10.2023. Identifier: 1873-23.  

12. On Amendments to the Law of Ukraine “On Prevention of Corruption” to bring certain provisions in line with the conclusions of the European Commission on Ukraine, Law of Ukraine of 8.12.2023. Identifier: 3503-IX.  

13.Ukraine received the status of a candidate for EU membership, Government of Ukraine

14. ‘What Ukraine should change on its way to the EU’, LB.UA, 25 March 2024