Shadow Report: civil society’s assessment of the fight against corruption and European integration

A coalition of civil society organizations, including Transparency International Ukraine, recently presented a Shadow Report to the European Commission on the state of affairs in Ukraine in 2024. Our organization prepared the section of the report focusing on the fight against corruption. The final version of the report was recently presented to our European partners.

What lies behind these complex terms? Such a document was prepared for the first time within the framework of European integration, and many don’t fully grasp its significance in future negotiations. What achievements and future changes do we at TI Ukraine consider necessary as the next step?

What is Shadow Report?

Joining the European Union is a complex process; one could even say, multi-layered. Therefore, the European Commission works extensively with representatives of state authorities and receives a lot of information from them regarding the progress of reforms, changes in Ukraine, its achievements, including those in the fight against corruption.

At the same time, our European partners understand that relying solely on data from the authorities isn’t sufficient; it’s necessary to know the positions of various stakeholders. The Shadow Report is precisely one of the documents created by experts and civil society at the request of European partners. Moreover, this format can be considered traditional for the integration of candidate countries into the EU. It’s called a “shadow” report because it is not an official state document.

Since Ukraine is only beginning negotiations with the EU, partners requested such a comprehensive alternative analysis from Ukrainian CSOs for the first time. This document covers the main issues from Section 23 “Justice and Fundamental Rights” of the European Commission’s 2023 Report on Ukraine. During the EU accession negotiations, it will be “opened,”, i.e. taken into consideration and will remain “open” throughout the entire accession process. It will be the last to close at the final stage of negotiations, after all EU member states agree.

In other words, Ukraine’s accession to the EU is impossible until our country fulfils all the points of this section, and the Ukrainian authorities need to carry out this work throughout the entire integration process.

Last year, the European Commission presented the key findings of the 2023 EU Enlargement Report on Ukraine, which also described our effectiveness in combating corruption. Now, in the Shadow Report, experts from the civil society assess the degree of implementation of relevant recommendations from the European Commission, provide an analysis of legislative and political initiatives, and compare how these provisions align with the legal framework of the European Union and the expectations of civil society and stakeholders. The report analysed the progress made by Ukraine in each of the listed areas from June 2023 to July 2024, with data for August 2024 presented in a separate annex.

Clearly, the broad topic of justice and fundamental rights cannot be analysed by a single organization. That’s why this first report was prepared by a coalition of civil society organizations.

Considering their existing long-term expertise, knowledge, and experience, the civil society organizations divided the preparation of the report into separate areas. The Agency for Legislative Initiatives worked on the section on judicial reform, CSO Tomorrow’s Lawyer analysed the reform of the prosecutor’s office and the bar, Ukrainian Bar Association tackled the problems of reforming legal education, and ZMINA Human Rights Centre described the challenges in protecting fundamental rights and freedoms.

At Transparency International Ukraine, we naturally delved into the problems of combating corruption.

While describing the problems in the fight against corruption, we didn’t rely solely on our own experience. Our experts conducted a broad survey of opinions from other representatives of civil society. In our view, this allowed us to develop comprehensive recommendations and assess the current situation.

We already know that our report has been read by European partners who will further shape their position on Ukraine. It has reached its intended audience.

What is the section of the report on the fight against corruption about?

In working on its section of the report, TI Ukraine focused on similar documents from other candidate countries. It’s crucial to note that all such shadow reports are public and accessible not only in Ukraine. This adds to the responsibility, requiring us to be very balanced and well-reasoned in our positions.

Overall, the Fight against Corruption section consists of 8 parts:

• National Anti-Corruption Strategy and State Anti-Corruption Programme
• Anti-corruption institutions of Ukraine
• Resumption of electronic declaration and verification of declarations
• Restoring political party reporting
• Corruption risk management; conflict of interest; whistleblower system
• Findings of the independent external evaluation of the NACP’s performance
• Legislative regulation of excessive influence of oligarchs and lobbying
• Investigation of anti-corruption cases by the National Police of Ukraine, the State Bureau of Investigation, and the Security Service of Ukraine

Having analysed all these areas, we identified 94 problems and, accordingly, provided 94 recommendations.

I’ll admit that 94 recommendations might seem excessive. The recommendations we provided are very practical. At the same time, they comprehensively cover areas related to preventing and combating corruption. Some of the issues raised have been discussed for a long time, but there are also those that arose during the negotiations with the European Union.

What do we want to draw the attention of the European Commission to?

Selection and evaluation of personnel in anti-corruption bodies. Although Ukraine has made significant progress in this area, both legislatively and practically, regarding competitions for managerial and other positions in anti-corruption institutions, several issues persist. For instance, the ongoing competition for judges of the High Anti-Corruption Court remains a pressing concern.

The most critical challenge at present is the term of office of the Public Council of International Experts (PCIE). Legally, it is established for six years, and considering the PCIE’s work, including the selection of HACC judges even before its launch, this term expires in November 2024. Given that the admitted candidates haven’t even passed the first stage of evaluation, it’s difficult to envision the HACC competition concluding by November. This could raise questions about the PCIE’s authority.

Ideally, in my view, we should maintain a fully empowered Public Council of International Experts until all vacant HACC judge positions are filled. This includes positions that will become available after the current competition concludes, as some judges from the first instance will transition to the appellate instance. A draft law has been registered in the Verkhovna Rada, which, with certain revisions, could address this issue. However, it hasn’t yet passed the second reading, and time for its adoption is running out.

Independence of institutions. Anti-corruption bodies must have the autonomy to make decisions that directly impact their work’s effectiveness. For example, the Specialized Anti-Corruption Prosecutor’s Office (SAPO) still lacks full procedural independence. While parliamentarians have recently made improvements in the SAPO’s operations, and it has finally attained the status of a separate legal entity, this isn’t sufficient.

The initiation of criminal prosecution and approval of key investigative actions concerning people’s deputies still hinge on the politically appointed Prosecutor General. The head of the SAPO should possess these powers. This is a substantial problem considering the number of cases involving people’s deputies as defendants, which are under investigation by the NABU and SAPO. It’s reasonable to anticipate a significant increase in such cases with the reinstatement of mandatory declarations.

Beyond the not entirely justified special guarantees for people’s deputies and other subjects, to further enhance the SAPO’s procedural independence, its head should be empowered to submit extradition requests directly to the competent authority of a foreign state.

Efficiency of trial. The institution of plea bargaining has generated perhaps the most discussion in this area recently. The number of criminal proceedings tried by the HACC in 2023 reached a record high of 288. In 2023, the Anti-Corruption Court delivered 45 sentences related to official misconduct and professional activities connected to public services, with 18 involving plea agreements.

Simplifying court proceedings, which can include plea bargaining, aligns with international recommendations to address delays in criminal justice.

The existing draft law aimed at developing plea bargaining requires substantial revision and a second reading vote. Expanding the possibilities for plea agreements in corruption and corruption-related criminal offenses must be accompanied by adequate safeguards to prevent abuse.

Firstly, it’s worth allowing the substitution of imprisonment with probation if the criminal proceeds of the accused are confiscated, they expose another individual or pay an increased fine. Secondly, the court should have the authority to request collected pre-trial investigation materials or oblige the prosecutor to submit these materials to the court along with the indictment and plea agreement. Thirdly, a common recommendation is to codify the HACC’s practice of verifying agreements for compliance with criminal procedure law.

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I’ve only highlighted a few critical issues in the work of anti-corruption bodies that currently concern Ukrainian society and, consequently, should be a focus for the European Commission.

In describing the problems in the fight against corruption in the report, we aimed to promote the implementation of as many necessary reforms as possible and the integration of European legislation into Ukrainian realities.

We share the same goal with the authorities, but we might differ in assessing whether enough has been done, prioritising reforms, evaluating achievements in various areas, and determining the paths to such achievements.

Whether the European Commission heeds our warnings will become apparent in the near future.

European integration is a lengthy process, and we will likely see and perhaps prepare many more such reports from the civil society sector. The content of future shadow reports will probably differ from this first one and may vary from year to year.

This serves as motivation for us to actively monitor developments in the country and signal problems to both the authorities and our partners. Because only through the combined efforts of the authorities, the public sector, and European partners will Ukraine join the European Union.

Kateryna Ryzhenko, Deputy Executive Director for Legal Affairs, Transparency International

pravda.com.ua