On January 4, the President signed Law N2808-VI, which repeals the laws “On the Fundamentals of Prevention and Counteraction to Corruption,” “On the Liability of Legal Entities for Corruption Offenses,” and “On Amendments to Certain Legislative Acts of Ukraine Regarding Corruption Offenses.”
In their place, the law “On the Fundamentals of Prevention and Counteraction to Corruption in Ukraine” will take effect—a document that has already passed its first reading and will, apparently, sail through the second. Since Yanukovych submitted the draft, it is safe to assume he will sign it, meaning the law will soon enter into force.
This rather concise document also introduces changes to the Code of Administrative Offenses, with detailed definitions of corrupt actions and the penalties for them.
Like all other “anti-corruption” legislation, this text has nothing to do with eradicating corruption or combating it. In truth, no special laws are needed to fight corruption. It is sufficient to have in criminal law and legislation on administrative offenses provisions holding civil servants, local government officials, and judges liable for abusing the authority entrusted to them. After all, the problem for society is the abuse itself, not whether it was committed for personal gain or purely for the love of the craft. The fact that most such abuses are indeed committed for personal gain changes essentially nothing.
However, even if one accepts the necessity of special anti-corruption legislation, it cannot be said that this law will help in the fight against corruption. Many nuances confirm this, but the law’s structure speaks most eloquently. Article 4 lists those subject to liability for corruption offenses: presidents, various types of officials, and so on. Article 6 lists restrictions on the use of official position—that is, what persons enumerated in Art. 4 are prohibited from doing. Essentially, the entire mechanism of the law consists in the interplay of these two articles. All four points of Article 6—that is, all prohibitions—begin with the word “unlawfully.” For example: “unlawfully promote natural or legal persons in their economic activity, obtaining subsidies, subventions, grants, credits, benefits, or the conclusion of contracts (including for procurement of goods, works, and services at state expense);”
Thus, the law assumes that the same actions can be “lawful,” while the very idea of the state in its modern formulation contains the concept of an official as an executor. The work of any official consists exclusively in fulfilling the instructions prescribed to him. By definition, an official cannot “promote,” “interfere,” “give preference”—only private individuals can do this in their relations with each other, not officials in the course of their duties. Any such action on the part of an official is corruption of the state mechanism—that is, corruption itself.
The introduction of “lawfulness” essentially legalizes corruption. The very concept of “lawfulness” establishes a criterion for judging officials, since other officials will decide whether a particular action by one of their colleagues was “lawful.”
This is the main point demonstrating that the law has nothing to do with fighting corruption. One could also note the constant references to other normative acts that must be adopted to implement this law. Everyone knows the devil is in the details, so even if the law contained something useful, references to future documents would undermine it. For instance, this phrase sounds quite amusing in context: “the procedure and methodology for conducting anti-corruption expertise and the procedure for publishing its results are determined by the Ministry of Justice of Ukraine.” I suspect this law would not pass anti-corruption expertise where such expertise exists.
The question arises—if this law changes nothing in the fight against corruption, then why adopt it? For us, the present and future victims of corruption, nothing changes. Yet the president submitted the draft, and three laws have already been repealed to make way for it. The point is that the new law plays an important role for the officials themselves. I would call it a “law on corruption”—an attempt to introduce written rules and guidelines into this defining activity of our bureaucracy. This is the first attempt of its kind, and I suspect future historians will properly appreciate it.
Until now, the activities of officials were governed by an unwritten rule: “here’s a gun, now do whatever you want with it.” In practice, implementing this principle led to the emergence of many diverse and equally unwritten rules, and most importantly, the existence of many centers of power that moreover tend to shift constantly in the course of inter-bureaucratic struggle. From the Donetsk perspective, this is chaos. On the other hand, one cannot strip officials of their corruption opportunities, because that is why they are there. And without officials, there would be no Donetsk either—I think they understand this. So some attempt at regulating corruption has been undertaken, which the state will now engage in directly and openly. The law is somewhat reminiscent of traffic regulations—after all, they do not tell each individual driver where to go, but simply define the risks. Though you will not find the actual “corruption traffic rules” in the law—price lists and fixed rules are incompatible with corruption. That is, officials retain their “entrepreneurial freedom,” but they are shown the risks and possible procedures involved. An official must judge whether, in a particular case, it is worth bringing the matter to a determination of the “lawfulness” of his actions, and who and how can influence these processes.
I will cite as an example two provisions establishing these risks. Article 19: “1. Specially authorized bodies in the field of anti-corruption are obligated to publish annually, no later than February 10, information about measures taken to counter corruption and about persons held accountable for committing corruption offenses.
The report must reflect the following information:
a) statistical data on the results of activities of specially authorized bodies in the field of anti-corruption, including mandatory indication of:
b) the number of persons against whom protocols on committing corruption offenses have been filed;
c) the number of persons against whom a court verdict has taken effect or administrative penalties have been imposed for a corruption offense;”
That is, officials are directly told that there is a procedure for identifying scapegoats at year’s end, and it will be carried out regularly. Accordingly, everyone must evaluate their actions based on the possibility of becoming the scapegoat.
Well, for those who do not understand well, a kind of board of honor is introduced—or more precisely, a “board of suckers.” “Information about persons held accountable for committing corruption offenses is entered into the Unified State Register of Persons Who Committed Corruption Offenses within three days from the date the corresponding court decision takes legal effect, the bringing of civil liability, or the imposition of disciplinary penalties. The Regulation on the Unified State Register of Persons Who Committed Corruption Offenses, the procedure for its formation and maintenance, is approved by the Ministry of Justice of Ukraine.”
The final word in determining that very “lawfulness” from Article Six of the new law rests with the President. Article 5, p. 4 states that “the coordination of implementation by executive authorities of the anti-corruption strategy defined by the President of Ukraine is carried out by a specially authorized body on anti-corruption policy issues, which is created (determined) by the President of Ukraine and operates on the basis of the law.” It goes without saying that nothing further is said about this mysterious body or the law governing its work. In principle, even without this body and the law describing it, the existence of this article de facto legalizes the President’s role as the primary arbiter of “lawfulness.”
I want to be understood correctly. This is not about officials creating a law that determines how much they will steal. It will not be a case of “bosses” sitting around a table dividing the loot. No, there will be a “fight against corruption,” and many of its participants will even believe they are genuinely fighting corruption. But in reality—not in the world of “normative acts”—this law means precisely the regulation of corruption; it regulates relations between officials in their competitive struggle for our money, because one can become a candidate for inclusion in annual anti-corruption reports and “lists of suckers” only by violating some informal rules or losing in competition to a rival.
Thus, the state has taken direct control of corruption processes. One might say the new law is a kind of constitution for officials, and with its adoption, the concept of “kleptocracy” moves from the journalistic plane to the legal plane.