Reanimation package of reforms > News > Analytics > Why Ukraine will be admitted to the EU only after implementing anti-corruption and law enforcement reforms. An analysis

Why Ukraine will be admitted to the EU only after implementing anti-corruption and law enforcement reforms. An analysis

In June 2022, Ukraine received the status of a candidate to the European Union. This status already provides some advantages. In addition, the EU is willing to integrate Ukraine more closely into its structures, help to recover after the war and meet criteria for EU membership.

At the same time, the European Commission (EC) provided seven recommendations to Ukraine. Their implementation is not tied to any already adopted decisions, but further stages related to EU membership depend on them.

They include:

  1. Reform of the selection of judges of the Constitutional Court
  2. Continuation of judicial reform
  3. Anti-corruption reform, including the appointment of new heads of SAPO and NABU
  4. Fighting money laundering and continuing reform of the law enforcement system 
  5. Implementation of the anti-oligarchic law
  6. Adjustment of audiovisual legislation with European legislation
  7. Change in legislation on national minorities.

In partnership with the Reanimation Package of Reforms Coalition, we have already considered some of these points, particularly de-oligarchization reform along with changes in media regulations and judicial and constitutional reforms.

Some items from the list of EC recommendations are more specific – with clearly defined proposals and deadlines for their implementation.

Others, on the contrary, are more general and instead involve defining the general vector of future reforms. First of all, this concerns the third and fourth points of the European Commission’s recommendations – strengthening the fight against corruption and reforming the system of law enforcement agencies. According to experts, these areas are interrelated because an effective fight against corruption requires reformed law enforcement agencies.

How Ukraine is going to reform the law enforcement system

The European Commission expects Ukraine to adopt a comprehensive strategic plan for reforming the law enforcement system as part of security and defense. However, what exactly should Ukraine pay attention to and how exactly to evaluate the effectiveness of this reform – European government officials do not specify.

“In other recommendations, it is indicated in more detail what needs to be done, but the law enforcement reform requirements are described in broad terms: “Approve the reform plan, and what will happen there is at your discretion.” There are no specific requirements if you listen to what the Europeans say through communications with Olga Stefanishyna, the Deputy Prime Minister for European and Euro-Atlantic Integration. They need the country to have some kind of stable and consistent vision of how the law enforcement system will develop. So, we have a carte blanche,” explains Evhen Krapyvin, an expert at the Center for Policy and Legal Reforms (a member organization of the RPR Coalition).

According to him, despite the lack of specifics, Ukraine still offered its vision for reforming law enforcement agencies. In November 2022, the Prosecutor General’s Office created an interdepartmental working group, which included representatives of all law enforcement agencies.

On January 1, the working group had already completed its work, resulting in the draft reform plan. The document has been sent to the Office of the President for consideration. What is included in this plan is unknown.

On the website of the Prosecutor General’s Office, there is only a brief extract of the main theses, which will determine the further vector of the reform of the law and order system.

In particular, the following strategic priorities have been defined as:

  1. Effectiveness and efficiency of law enforcement agencies and the Prosecutor’s office. Ensuring the further development of the system of law enforcement agencies should be carried out based on the application of risk-oriented approaches, information and analytical orientation, strategic management, and forecasting.
  2. A consistent criminal policy, the priority of which is the prevention of crime, the inevitability of responsibility, and the protection of the individual, society, and the state from criminal offenses, ensuring the victim’s interests.
  3. Promptness of criminal proceedings in compliance with international standards and the principle of the Rule of Law.
  4. A management system oriented to the result by the established priorities.
  5. Comprehensive digital transformation.
  6. Openness, transparency, accountability, independence, and political neutrality.

These priorities do not contain any details. In addition, they do not apply to specific law enforcement agencies or vice versa – they apply to all of them together.

Evhen Krapyvin draws attention to the fact that the plan adopted based on the Prosecutor General’s Office was instead developed for peacetime and covered only a few crucial issues.

“For example, it does not cover the issue of SSU reform. We have a draft law passed in the first reading, which includes a consistent reform; it clearly describes how the SSU should eliminate the functions of pre-trial investigation and turn into a classic counter-terrorist body. Unfortunately, the concept does not affect this issue. Due to the war, consideration of this issue froze. Similarly, there is nothing there that relates to military justice. These crimes are dealt with in the Prosecutor’s office, in the SSU, and even in NABU, and, of course, in the regions where the greatest work is done by the police. There are no questions about the establishment of order in the de-occupied territories – whether all collaborators will be brought to justice or not, whether there will be restrictions on voting rights, whether there will be law enforcement officers who were there before the occupation and escaped or not. Many of those questions are important even now. And they will be important after the war. But the concept was developed for peacetime,” says Evhen Krapyvin.

According to him, in the hot phase of the war, people need to think about reforms of those bodies that work close to the front.

On the other hand, according to the expert, all long-standing issues and issues related to the war and post-war reconstruction will be resolved and implemented separately.

“The Europeans prescribed this point, and we implemented it. But it is a 100% fact that this concept will be developed and updated. Because implementation of this concept requires specyfying a lot of issues. In addition, things related to the war and some kind of post-war reconstruction with a separate concept or a separate document will still be approved. And law enforcement agencies will develop not only according to this concept but also according to other documents. But the Europeans need us to have this vision. So we gave it to them.” – explained the expert.

How to (finally) implement an anti-corruption strategy

Another requirement of the European Commission is the anti-corruption component. It, in turn, covers several areas at once. In particular, the EU insisted on appointing the head of the Specialized Anti-Corruption Prosecutor’s Office after approving the determined winner of the competition and holding a fair competition for the appointment of the new head of NABU.

The position of the head of the anti-corruption Prosecutor’s office remained vacant for almost two years. The competition for the election of a new manager was announced in January 2021. In December, the competition commission announced the rating of the candidates — Oleksandr Klymenko scored the most, 246 points. The competition commission officially approved these results only on July 19, 2022.

Since 2016, the new head of the SAPO has worked as a NABU detective.

Klymenko investigated several media cases, particularly the “gas case” regarding former People’s Deputy Oleksandr Onishchenko. Klymenko also headed a group of prosecutors in the case of Oleg Gladkovskyi, the former deputy secretary of the National Security Council.

As for the competition for the NABU head position, two dozen candidates are currently competing for this position. They have already passed tests on knowledge of Laws and solving logical problems. Ahead are interviewing for integrity and competence.

According to Mykola Khavroniuk, a board member of the Center for Policy and Legal Reforms, it is essential for both the European Commission and Ukrainian society that the competition is fair and transparent.

“First of all, it is important that the evaluations of the competition commission are justified. The commission evaluates candidates according to certain indicators – passing a test, preparing a written task, and assessing their integrity and professional ethics. Society should see that the winner was the one who scored more points, not the one who was in fourth or fifth place and then, for inexplicable reasons, during the interview, became the best. Then it will be difficult to explain to the society why they were selected” explained the expert.

In addition, in the “anti-corruption block,” there are general requirements, such as “effective investigations and court sentences.”

According to Mykola Khavroniuk, these conditions primarily concern the effectiveness of NABU’s functioning and its independence.

“NABU is still unable to carry out investigative activities on its own because, in some cases, NABU is forced to turn to the SSU. And the SSU is under the control of the President of Ukraine. This means that there may be a leak of information, and there may be political interference. This disparity has existed for many years and must be finally removed,” Mykola Khavroniuk explained.

According to the expert, one of the critical reasons for the agency’s inefficiency is existence of many small cases with few detectives.

“The NABU is overwhelmed with small cases. Now the NABU must start an investigation when, for example, a million is stolen. But the NABU does not have enough detectives to ensure the investigation of all such proceedings. It is also necessary to remove some subjects from the NABU’s jurisdiction, such as the members of regional councils. If they did something, let the SBI or the National Police investigate. NABU should go after the top officials. Especially when it comes to the heads of some utility companies… This is simply ridiculous. And at the same time, the number of detectives must be increased because there aren’t enough. We hear about NABU a lot, but those cases amount to only 0.04 of all criminal proceedings that are sent to courts in a year. This is very little. They could do much more if they added the same number of positions in NABU,” Mykola Khavroniuk said.

The expert also reminded that with the introduction of martial law in Ukraine, all declarants were allowed not to submit electronic declarations, and some registers were closed.

And although the EU does not comment on this situation, according to the expert, it is time to return to officials’ mandatory declaration of property and income.

“The EU is silent on this matter because it is a bit incorrect for the EU to correct our authorities and say: “Open the registers despite the war.” They understand that specific challenges can accompany war. But we see that there are no special dangers because when the register of declarations was opened, no one with bad intentions took information from it. My reservation about the registry is that it is impossible to find any personal data there, except for the place of residence. If a person lives in a small town or, even more so, a village, then it is easy to find them. In the conditions of war, it should be possible to specify only the city or the region,” Khavroniuk said.

Also, political parties in Ukraine are not required to report on property and income from April 2020 – first, this was due to the coronavirus epidemic, then due to martial law. This situation also needs to be corrected to ensure the transparency of financing of political parties and reduce corruption risks. “This is completely out of the question here. We ensure the secrecy of personal data, data about a person’s health. But what are political parties for? Information about them should be open, especially in the conditions of war. So that we know for sure that no hell from abroad does not sponsor them,” Mykola Khavroniuk believes.

Fulfilling the above requirements of the European Commission will open the possibility for Ukraine to start negotiations on the full EU membership.

In spring, the European Commission should publish a document summarizing how Ukraine has coped with its homework on all seven recommendations, including anti-corruption and law enforcement agencies reforms.

The citizens of Ukraine are primarily interested in the reform of law enforcement agencies, the appointment of directors of NABU and SAPO, and improving the quality of pre-trial investigations. These steps, on the one hand, will help to reduce corruption in Ukraine and, on the other hand, will increase Ukraine’s chances of acquiring the official status of a member of the European Union.

Read more about Ukraine’s implementation of the European Commission’s recommendations in the study of the RPR Coalition.

The publication was prepared by LIGA in partnership with the Reanimation Package of Reforms Coalition with the financial support of the United States Agency for International Development (USAID) within the framework of the project “Responsible and Accountable Politics in Ukraine” (U-RAP), which the National Democratic Institute implements. The opinions expressed in the publication are those of the authors and do not necessarily reflect the views of USAID.