Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 69
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Diciembre
2021
Recibido el 12/03/2021 Aceptado el 15/06/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Eduviges Morales Villalobos
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Pedro Bracho Grand
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 91-114
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Comparative legal analysis of the anti-
corruption policy in Ukraine and Poland
DOI: https://doi.org/10.46398/cuestpol.3969.05
Oleksandra Zakharova *
Olena Harasymiv **
Olga Sosnina ***
Oleksandra Soroka ****
Inesa Zaiets *****
Abstract
Eective counteraction to corruption remains relevant in
some countries of Eastern Europe and the former Soviet Union,
given that manifestations of corruption are a real obstacle to the
realization of human rights, social justice, economic development
and jeopardizes the proper functioning of a market economy.
However, if such countries of the region, such as Poland,
succeeded in ensuring the implementation of an eective anti-
corruption policy, a number of post-Soviet countries, in particular Ukraine,
faced signicant obstacles to overcoming corruption and eectively
implementing national anti-corruption policies. Therefore, within this
article, a comparative legal analysis of the anti-corruption legislation
of these countries has been carried out. The state of implementation of
national anti-corruption policies and the formulated conclusions, which
provide answers to the questions of improving the implementation of
national anti-corruption policy, in particular Ukraine, are considered.
Thus, the existence of modern national anti-corruption legislation that best
meets the requirements and recommendations on which the state relies on
relevant international treaties can be the key to successful anti-corruption
eorts.
* Candidate of Science in law, Associate Professor of the Department of Criminal Process and Forensics,
Lviv State University of Internal Aairs, Lviv, Ukraine, ORСID ID: https://orcid.org/0000-0001-
6623-9004. Email: 0607oleksandra@gmail.com
** Candidate of Science in law, Associate Professor of the Department of Criminal Process and Forensics,
Lviv State University of Internal Aairs, Lviv, Ukraine, ORСID ID: https://orcid.org/0000-0002-
4588-9531. Email: Garsumiv_@ukr.net
*** Candidate of Science in law, Deputy Head of the Department for Educational and Methodological Work
of Criminal Law and Procedure, Lviv University of Trade and Economics, Lviv, Ukraine, ORСID ID:
https://orcid.org/0000-0002-0033-4487. Email: i.am.sosnina.olga@gmail.com
**** Candidate of Science in law, Head of the educational and methodical center of the International
European University, Kyiv, Ukraine, ORСID ID: https://orcid.org/0000-0002-9958-6907. Email:
oleksandrasoroka@ieu.edu.ua
***** Candidate of Science in law, Researcher of the Department of organization of scientic activity and
protection of intellectual property rights, National Academy of Internal Aairs, Kyiv, Ukraine, ORСID
ID: https://orcid.org/0000-0003-0159-4747. Email: zinessa99@gmail.com
92
Oleksandra Zakharova, Olena Harasymiv, Olga Sosnina, Oleksandra Soroka y Inesa Zaiets
Comparative legal analysis of the anti-corruption policy in Ukraine and Poland
Keywords: anti-corruption policy; Eastern Europe; legal analysis;
prevention of corruption; specialized anti-corruption body.
Análisis jurídico comparativo de la política
anticorrupción en Ucrania y Polonia
Resumen
La lucha ecaz contra la corrupción sigue siendo pertinente en
algunos países de Europa oriental y la ex Unión Soviética, dado que las
manifestaciones de corrupción son un obstáculo real para la realización
de los derechos humanos, la justicia social y el desarrollo económico
y ponen en peligro el funcionamiento adecuado de una economía
de mercado. Sin embargo, si esos países de la región, como Polonia,
lograron garantizar la implicacion de una política anticorrupción ecaz,
varios países postsoviéticos, en particular Ucrania, se enfrentaron a
obstáculos importantes para superar la corrupción y aplicar ecazmente
la lucha nacional contra políticas de corrupción. Por ello, dentro de este
artículo se ha realizado un análisis jurídico comparativo de la legislación
anticorrupción de estos países. Se considera el estado de implicacion de
las políticas nacionales anticorrupción y las conclusiones formuladas, que
brindan respuestas a las preguntas sobre la mejora de la implicacion de
la política nacional anticorrupción, en Ucrania particularmente. Por lo
tanto, la existencia de una legislación nacional anticorrupción moderna que
cumpla mejor con los requisitos y recomendaciones en los que el estado se
basa en los tratados internacionales relevantes puede ser la clave para el
éxito de los esfuerzos anticorrupción.
Palabras clave: política anticorrupción; Europa del Este; análisis legal;
prevención de la corrupción; organismo especializado
en lucha contra la corrupción.
Introduction
After the fall of the communist regime in Eastern Europe and the former
Soviet Union in the early 1990s, as a rule, representatives of other political
parties came to power democratically in these countries. They eventually
began to introduce a new economic, political, and social course there. The
introduction of market relations, the sale of state-owned property to private
companies, the creation of new forms of economic relations (for example,
private-public partnership) in which the state participates through its
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Vol. 39 Nº 69 (Julio - Diciembre 2021): 91-114
representatives have even more actualized the issues of combating and
preventing corruption in new political, economic, social and legal conditions
of existence. In the article, we will carry out a comparative legal analysis of
modern anti-corruption programs (strategies) that are being implemented
in Ukraine and Poland, as well as estimate their eectiveness and results of
their implementation.
The World Bank determines that corruption is commonly dened as the
abuse of public or corporate oce for private gain. Instead, Christensen,
Shaxon and Baker, point out the denition of corruption according to
Transparency International (TI) as “the abuse of entrusted power for
private gain”. They rightly point out that this denition is better, as it
could be used more broadly, but in practice, it is usually interpreted in
a narrow way, notably by focusing on the public sector, particularly on
bribery (Christensen et al., 2008). Civil Law Convention on Corruption
(1999), ratied, in particular by Poland (2002) and Ukraine (2005), states
that corruption means ‘requesting, oering, giving or accepting, directly
or indirectly, a bribe or any other undue advantage or prospect thereof,
which distorts the proper performance of any duty or behavior required
of the recipient of the bribe, the undue advantage or the prospect thereof’.
Corruption represents a major threat to the rule of law, democracy and
human rights, fairness and social justice, hinders economic development
and endangers the proper and fair functioning of market economies (Civil
Law Convention on Corruption, 1999). Corruption is not only illegal but also
not a completely moral act. In this view, morality and law are a supportive
factor of each other, global morality is a criterion of standard behavior for
the introduction of such norms of law (Obura, 2014). In a democratic system
based on people’s trust, the spread of injustice may become fatal, because
it destroys the faith in the institutions of power (De Vel and Csonka, 2002,
p. 361).
The criticality of corruption in modern Ukraine is due to the problem of
the formation of civil society, the weakness of its structures, and the inability
to withstand the pressure of the shadow economy. According to research,
corruption was one of the reasons that led to the Revolution of Dignity in
Ukraine in 2013-2014 (Bardachov, 2014). The high level of corruption in
Ukraine conrms by the Corruption Perceptions Index (CPI). According to
the CPI, Ukraine ranked 114th among the 180 countries surveyed in 2019
(Transparency International, 2020).
Vice versa, Poland, which in the early 1990’s also lost its communist
regime. According to the CPI, Poland ranked relatively high, which can
be evidence of the eectiveness of anti-corruption programs by Polish
state institutions. Although CPI has been subjected to sustained critique
for distorting and manipulating the measurement and understanding of
corruption (Poynting and Whyte, 2017). Johnston oered the argument
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Oleksandra Zakharova, Olena Harasymiv, Olga Sosnina, Oleksandra Soroka y Inesa Zaiets
Comparative legal analysis of the anti-corruption policy in Ukraine and Poland
that four major syndromes of corruption can be observed in all countries.
Following the proposed division, Poland suers from ‘Elite Cartels’
syndrome, and Ukraine deals with ‘Oligarchs and Clans’ syndrome. It is due
to the small number of contentious elites, very weak institutions, rapidly
expanding opportunities, and pervasive insecurity. The existence of such a
separation leads to successful reform or best practice in Country A may be
impossible in Country B, irrelevant in Country C, and downright harmful
in Country D (Johnston, 2011). Nonetheless, CPI results are used by both
international and national organizations and corporations. These ndings
are conrmed, in particular, by statistical data, according to which only
15 % of Poles regard corruption as one of the most serious problems in the
country (Banakhievich, 2017). 33 % of the Ukrainians consider corruption
as an element of tradition (Polikovskaya, 2017).
The choice of Ukraine and Poland for this research is because, on the
one hand, Ukraine (EU-Ukraine Association Agreement) and Poland (EU
member state), having a close geographical position. They have similar
socialist past, since the 1990s, started an active transformation of their
legal institutions. On the other hand, these countries have so far achieved
dierent results in the implementation of their anti-corruption policies.
The purpose of this study is to get an answer: how the legislative process
can inuence the perception and success of national anti-corruption policy
implementation of such similar countries. The conduct of comparative
legal analysis of the anti-corruption policy in these countries allows, in
particular, to identify and determine the degree of inuence of individual
elements of the anti-corruption policy on the success of anti-corruption
policy implementation. The impact of international anti-corruption treaties
on the results of national anti-corruption policy implementation was also
evaluated.
We propose to conditionally divide this article of three main sections.
The rst outlines the main modern legislative principles of anti-corruption
policy in such countries of Eastern Europe as Poland and Ukraine. In this
section, the comparative analysis of the national anti-corruption legislation
carries out. There examine its links with the main international agreements
on preventing and combating corruption, which these countries have
joined, as well as analyze the state of national anti-corruption policies
implementation, factors, which aect it. The second section provides data
on anti-corruption strategies, programs, and their implementation in these
countries. In the nal section, based on the results of the comparative legal
analysis, the main ndings of the research do formulate and summarized.
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1. Methodology of the study
The methodological basis of this work is philosophical methods:
dialectical (the basic principles of which are objectivity, comprehensiveness,
concreteness and completeness of knowledge’s etc.), logical (the main
methods of which are analysis and synthesis, induction and deduction,
analogy), etc.
Firstly, the dialectical method revealed general features, connections
and regularities in the formation of anti-corruption measures taking into
account the norms of international law. The hermeneutic method allowed
to study the content of certain legal norms and theoretical provisions in
the context of topical issues of anti-corruption measures on the basis of
acquaintance with the texts of normative and doctrinal sources. The analysis
and synthesis allowed to comprehensively describe and characterize the
essence of the anti-corruption policy of Poland and Ukraine, to combine
original ideas, principles and developments for further eective use of legal
positions in anti-corruption policy at the level of individual countries.
Also, the use of the formal-legal method made it possible to determine the
list of specic tasks, deadlines, bodies responsible for each task, eciency
indicators, sources of funding, providing clear indicators for assessing the
success of the implementation of anti-corruption state strategy in Poland
and Ukraine. Thanks to the comparative legal method, it has become
possible to compare the main legal positions in the regulation of anti-
corruption processes, taking into account the peculiarities of combating
this phenomenon at the national and international levels. The logical-legal
method helped formulate proposals for the use guiding anti-corruption
principles applied at the Council of Europe level.
Furthermore, the special legal method was used in assessing the
eectiveness of the an overview of anti-corruption strategies and programs,
as well as the state of their implementation in Ukraine and Poland. Finally,
generalization, as a method, allowed to identify the main problems and
formulate the vectors of Ukraine’s implementation of national anti-
corruption policy, taking into account the experience of Poland and other
developed countries.
2. Results and Discussion
Before moving directly to the comparative legal analysis of the national
legislation of Ukraine and Poland, let us draw attention to the importance
of the existence of legal mechanisms that provide an integrated approach
to preventing and combating corruption both at the international and
national levels.
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Oleksandra Zakharova, Olena Harasymiv, Olga Sosnina, Oleksandra Soroka y Inesa Zaiets
Comparative legal analysis of the anti-corruption policy in Ukraine and Poland
2.1. International level
At the level of the Council of Europe (Ukraine and Poland is its
members), the anti-corruption principles approved by Resolution (97) 24
on the Twenty Guiding Principles for the Fight Against Corruption. These
include, among others, such as:
– to take eective measures for the prevention of corruption and, in
this connection, to raise public awareness and promoting ethical
behaviour;
– to ensure co-ordinated criminalisation of national and international
corruption;
– to ensure that those in charge of the prevention, investigation,
prosecution, and adjudication of corruption oences enjoy the
independence and autonomy appropriate to their functions, are free
from improper inuence and have eective means for gathering
evidence, protecting the persons who help the authorities in combating
corruption and preserving the condentiality of investigations;
– to provide appropriate measures for the seizure and deprivation of
the proceeds of corruption oences;
– to promote the specialisation of persons or bodies in charge of
ghting corruption and to provide them with appropriate means and
training to perform their tasks.
– to ensure that the system of public liability or accountability takes
account of the consequences of corrupt behaviour of public ocials.
– to encourage the adoption, by elected representatives, of codes of
conduct and promote rules for the nancing of political parties and
election campaigns which deter corruption.
– to encourage research on corruption.
– to develop to the widest extent possible international co-operation
in all areas of the ght against corruption (Resolution (97) 24, 1997).
Such anti-corruption principles must be implemented in the national
legislation and the law enforcement practice of each party country.
Further, the legislative acts of Ukraine and Poland, which introduce
anti-corruption principles, are listed in the article.
Taking into account Resolution (97) 24, the Committee of Ministers
of Council of Europe was resolved to establish the Group of States
against Corruption (GRECO), governed by the Statute appended thereto
(Resolution (99) 5, 1999). Currently, GRECO comprises 49 member States
(48 European States and the United States of America). Poland (1999),
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Vol. 39 Nº 69 (Julio - Diciembre 2021): 91-114
Ukraine (2006), RF (2007) also joined GRECO. The aim of the GRECO
is to improve the capacity of its members to ght corruption by following
up, through a dynamic process of mutual evaluation and peer pressure,
compliance with their undertakings in this eld. In order to achieve the
aim, the GRECO shall monitor the observance of the Guiding Principles
for the Fight against Corruption (Appendix to Resolution (99) 5, 1999).
The next stage of implementation of the provisions of Resolution (97)
24 was the Criminal Law Convention on Corruption, 1999. The Criminal
Law Convention on Corruption has recommended that the participating
countries take measures to establish in their national legislation criminal
liability for a certain list of corruption oenses. The control over its
implementation was entrusted to GRECO.
The UN Convention against Corruption, adopted in 2003, involves 186
States Parties, including Ukraine and Poland (Signature and Ratication
Status, 2018). In accordance with Articles 5, 6 of this Convention each State
Party shall, in accordance with the fundamental principles of its legal system,
develop and implement or maintain eective, coordinated anti-corruption
policies. Each State Party shall grant bodies that prevent corruption the
necessary independence, in accordance with the fundamental principles
of its legal system, to enable bodies to carry out their functions eectively
and free from any undue inuence (UN Convention against Corruption,
2003). The mentioned provision of the UN Convention against Corruption
as regards the establishment of conditions for the independence of anti-
corruption bodies in its content corresponds to one of the principles
previously stated, which were approved by Resolution (97) 24. This
statement also applies to a number of other provisions set out in Resolution
(97) 24 and UN Convention against Corruption.
Of course, there is an interdependence between international and
national anti-corruption measures, since national anti-corruption policy
must be constantly improved in line with international standards. However,
despite the considerable potential of international legal instruments to ght
corruption, national measures are the most ecient and eective methods
of combating corruption (Conforty, 1993). Jeremy Pope highlights the
need for a ‘system of state integrity’ using a holistic approach to addressing
transparency and accountability issues. The approach embraces all key
structures of democratic, legal, and civil society. In his view, the political
struggle against corruption has several elements common to each country.
It is the reform of key state programs, the change in the structure of the
government and the improvement of its accountability, the change in moral
and ethical attitude to corruption, and, most importantly, the involvement
and support of the government, the private sector and civil society of anti-
corruption policy (Pope, 2011). World Bank’s expert Pierre Landell-Mills is
convinced of the need to adopt anti-corruption legislation. This legislation
formed by laws on combating corruption, extortion and bribery, funding of
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Oleksandra Zakharova, Olena Harasymiv, Olga Sosnina, Oleksandra Soroka y Inesa Zaiets
Comparative legal analysis of the anti-corruption policy in Ukraine and Poland
political parties, and laws aimed at curbing corruption. In particular: the
introduction of free access of citizens to public information, guaranteeing
the protection of persons from criminal prosecution who report cases of
corruption, about conict of interests (Landell-Mills, 2013).
2.2. National level. Ukraine
For today, the adoption of the “Prevention of Corruption” Act 2014
(Ukr) is the latest stage in the implementation of the anti-corruption
policies contained in the international treaties to which Ukraine joined.
Article 4 of this Act species that the central body of executive power with
a special status, which ensures the formation and implementation of state
anti-corruption policy, is the National Agency for Corruption Prevention
(NACP). The Cabinet of Ministers of Ukraine creates the NACP. His powers
include:
– analysis of prevention and counteraction to corruption, activities of
state bodies and local self-government bodies in the relevant sphere.
– development of anti-corruption strategy and state program
implementation, monitoring, coordination, and evaluation of the
eectiveness of the Anti-Corruption Strategy.
– formation and implementation of anti-corruption policy, drafting of
normative legal acts.
– monitoring and control over the implementation of legislation on
ethical conduct, prevention, and resolution conict of interests.
– control, verication, storage, and disclosure of ocials’ declarations
and monitoring their lifestyles.
– maintenance of the Unied State Register of ocials’ declarations
(USROD) and the Unied State Register of persons who have
committed corruption oenses.
– approval of anti-corruption programs of state authorities and local
self-government bodies.
– informing the public about measures of preventing corruption,
implementation of measures aimed at forming a negative attitude
towards corruption in the minds of citizens.
– coordination of international obligations implementation,
cooperation with state bodies, non-governmental organizations of
foreign states and international organizations.
Instead, before the start of the work of this newly created anti-
corruption body, in March 2016, MP V. Chumak, as a result of political
pressure, refused to exercise the powers of a member of NACP. It led to
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CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 91-114
the lack of a quorum and the impossibility of NACP at that time to start
work. (Ukrainian Pravda, 2016). During 2016-2018, NACP, with almost 2
million, was able to check only 164 electronic declarations of ocials. The
reason for this was the lack of a comprehensive information security system
in the software product, which was supposed to ensure the maintenance of
USROD. The launch of the electronic declaration system was postponed
until September 2016. Falkner and Treib describe some Eastern European
member states (Hungary, Slovakia, Slovenia) as ‘the world of dead letters’
because the stage of practical implementation of EU Directives has awed
enforcement (Falkner and Treib, 2008). With similar examples, in relation
to the stage of practical implementation of international anti-corruption
legislation, Ukraine can also be referred to as the world of dead letters.
In November 2017, the head of the NACP department publicly accused
the head of NACP Natalia Korchak of distorting the results of checking
declarations of certain ocials, as well as the unlawful inuence on the
activities of the NACP by the administration of the President of Ukraine
(Hromadske TV, 2018). GRECO also turned attention to these facts: ‘for the
NACP to work eectively, it must be independent and free of any political
interference both in law and, principally, in practice’ (GRECO, 2017). So far,
the law enforcement agencies not given a public assessment of procedural
results of verifying these allegations.
The anonymous interview conducted with 42 detectives of the National
Anti-Corruption Bureau of Ukraine (NABU) and 36 judges of Kyiv’s region.
Informed consent obtained from participants. 81 % of detectives interviewed
and 86% of judges interviewed think that the absence of non-procedural
political inuence is a prerequisite for the successful implementation of
anti-corruption policies.
According to Art. 1 of “On the National Anti-Corruption Bureau of
Ukraine” Act 2014 (Ukr), the National Anti-Corruption Bureau of Ukraine
(NABU) is a state law enforcement agency charged with identifying,
terminating, investigating, disclosing, and preventing corruption oenses.
NABU is created by the President of Ukraine to counteract a criminal
corruption oense committed by senior ocials and endangering national
security. According to Art. 16 of this Act, the duties of NABU include the
use of operational-search activities, pre-trial investigation, search, seizure
of funds, and other property that may be subject to conscation or special
conscation. Cooperation, on terms of condentiality, with persons
reporting corruption oenses, informing society about the results of its
work, international cooperation is also there. Article 216, paragraph 5, of
Criminal Procedural Code 2012 (Ukr) denes substantive criminal oenses
in which criminal investigations are carried out by NABU’s detectives.
Appointment and recruitment procedures and budgetary independence
are the most sensitive areas in which anti-corruption agencies can be
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Oleksandra Zakharova, Olena Harasymiv, Olga Sosnina, Oleksandra Soroka y Inesa Zaiets
Comparative legal analysis of the anti-corruption policy in Ukraine and Poland
exposed to political pressure (Sousa, 2009). Some Ukrainian scholars point
out that the procedure for appointing persons to the Contest Commission in
practice leads to the “political immunity” of senior ocials for committing
corruption oenses. By the results of work, Contest Commission sends
two or three candidates to the post of Director of NABU. At the same time,
Contest Commission personnel depends on the President of Ukraine, the
pro-presidential Cabinet of Ministers of Ukraine, and the Verkhovna Rada
(Fedorko, 2019). Thus, the main aw “On the National Anti-Corruption
Bureau of Ukraine” Act 2014 (Ukr) is its inconsistency in Art. 106
Constitution of Ukraine 1996 (Ukr) on the procedure for NABU’s creation.
Appointment and dismissal of his director, approval of Competition
Commission according to Art. 106 Constitution of Ukraine 1996 (Ukr) not
assigned to the powers of the President of Ukraine. However, Art. 6, 7 “On
the National Anti-Corruption Bureau of Ukraine” Act 2014 (Ukr), contrary
to Art. 106 Constitution of Ukraine 1996 (Ukr) granted to the President
such powers.
Despite this, the President, with his decrees, formed the NABU and
appointed Artem Sitnik as its director (Decree of the President of Ukraine
No. 217/2015 2015 (Ukr); Decree of the President of Ukraine No. 218/2015
2015 (Ukr)). According to the Constitutional Court of Ukraine, changes to
Art. 106 of the Constitution of Ukraine 1996 (Ukr) concerning the extension
of the President’s powers in these matters is contrary to the provisions of
Art. 157 of the Constitution of Ukraine. They may violate the balance of
constitutional powers between the President of Ukraine and the Cabinet
of Ministers of Ukraine, eectively creating a parallel executive power
subordinate to the President of Ukraine.
The creation and work of NABU, as a specialized anti-corruption state
body for the termination, investigation, disclosure of corruption oenses,
fully complies with the provisions of Resolution (97) 24, the UN Convention
against Corruption. However, the commencement of its work, which
did carry out in violation of the provisions of the national constitution,
created substantiated doubts about further institutional independence of
this body from other bodies of state power, in particular, the President of
Ukraine. Independence and autonomy, freedom from improper inuence
are principles dened by Resolution (97)24. Subsequently, the doubts of
the Ukrainian public about the independence of NABU from the President
of Ukraine received their conrmation when Radio Liberty announced
the fact of the night informal meeting of the director of NABU Sitnik
with President Poroshenko in a private residence (Radio Liberty, 2018).
Journalist Boyko in his publication, based on documents from the register
of rights to real estate, cited data that in 2010, the head of the department
at the Prosecutor’s Oce, A. Sitnik received from the local charity fund a
two-room apartment in the suburbs of Kyiv as a present. According to the
journalist, funds for the purchase of this apartment by charity fund came
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from the company of one of the suspects in a criminal case. At that time
the criminal case has been investigated by the prosecutor’s oce headed
by Sitnik (Boyko, 2018). According to the decision of the Rivne Court of
Appeal, the Director of NABU Sytnyk has been brought to administrative
responsibility for committing a corruption oense of violation of statutory
restrictions on gifts (Kolomiets, 2019).
Starting from 2015, according to “On Amendments to Certain Legislative
Acts of Ukraine to Ensure the Activities of the National Anti-Corruption
Bureau of Ukraine and the National Agency for Corruption Prevention”
Act 2015 (Ukr), General Prosecutor’s Oce of Ukraine (GPO) includes
the Specialized Anti-Corruption Prosecutor’s Oce (SAP). SAP is an
independent structural unit. SAP entrusts with the functions of overseeing
the observance of laws during the conduct of operational-search activities,
pre-trial investigation of NABU, maintenance of state prosecution in
relevant proceedings. It represents the interests of a citizen and state in
court in cases involving corruption.
Despite the creation of an autonomous anti-corruption body in GPO, the
quality of procedural and out-of-procedure interaction between NABU and
SAP is dicult to call acceptable. In this regard, an illustrative example is
when in an aquarium stationed in the oce of SAP’s head Kholodnitskiy by
NABU’s ocers had been installed a listening device within the framework
of a pre-trial investigation. It concerned the extortion of a bribe of $2 million
for the release of a person arrested on suspicion of a corruption oense.
The results of the listening cabinet of the head of SAP were promulgated in
the national media, after which the public began to accuse Kholodnitsky of
disclosing the data of pre-trial investigation to outsiders. However, at the
end of 2018, all ocial allegations against Kholodnitsky were withdrawn,
and the relevant criminal proceedings were closed (Nikolaenko, 2019).
Besides, in September 2018, there was a case of use of violent actions
by the Special Forces of NABU to SAP’s prosecutors, which resulted in
SAP accusing NABU of “illegally installed means of secretly withdrawal
information” (Radio Liberty 2, 2018).
Considering these examples in the context of the principal-agent model,
where a high-ranking ocer of the anti-corruption body may act as a corrupt
principal, the conclusions of Ledeneva, Bratu, Köker on the impracticality
of principal-agent framework could be applied (Ledeneva et al., 2017). It is
also conrmed by empirical data. Thus, 52 % of detectives interviewed think
that publications and facts about possible corruption oenses committed by
anti-corruption ocials hurt the psychological status of other employees. It
inuences the level of public condence in the activities of such bodies and
aects the success of the implementation of the anti-corruption policies. It
also conrmed by the statistics below.
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According to the statistics of GPO in 2018, only 9 indictments (7 %)
from 132 criminal proceedings investigated by the NABU sent to court in
the category of crimes related to unlawful prot (bribery) (Art. 368-369
of the Criminal Code of Ukraine). More than half, namely, 56 criminal
proceedings of this category were closed by NABU in the absence of crime
(General Prosecutor’s Oce of Ukraine, 2019). With the number of NABUs
sta in 700 people, in 6 months of 2018, NABU sent to court indictments
concerning of 2 people who hold public service positions in category “A”
(top ocials) (NABU, 2018). Such performance indicators of NABU and
SAP do not correspond to the level of corruption in Ukraine according to CPI
ranking. Such an example of a discrepancy between perception and reality
regarding the measurement of corruption may be an argument in favor of
some scholars who argue against the use of corruption indices for political
or social purposes (Galtung, 2005; Ledeneva et al., 2017). However, such
indicators may show the improper performance of pre-trial investigation
and the prosecutor’s guidance in relevant criminal proceedings by anti-
corruption law enforcement bodies. Therefore, an argument in favor
of the creation of the High Anti-Corruption Court in Ukraine could be
questionable. According to this argument, exclusively rst-instance courts
and not the low quality of work of anti-corruption bodies are the main
obstacles in condemning top ocials for corruption.
This conrms by the lack of practical implementation in 2018 of such
an anti-corruption principle with Resolution (97) 24 as the seizure and
deprivation of the proceeds of corruption oenses. Thus, according to the
State Treasury Service of Ukraine in 2018 by court decisions on corruption-
related cases conscated only $ 5010 with planned $ 170 million (Ukrainian
Pravda, 2019). A special item on the proceeds of conscated funds and
property for committing corruption-related oenses did withdraw by
Government and Parliament. Applying Klitgaard’s formula to this case in
that the less accountability than the more corruption, the success of the
work of anti-corruption bodies is called under reasonable doubt in 2019.
2.3. National level: Poland
Article 36 of the UN Convention against Corruption provides the
existence of a body with the necessary independence, which specialized in
combating corruption through law enforcement. In 2006, the Sejm (Polish
Parliament) adopted “On the Central Anti-Corruption Bureau” Act, which
provides the creation of an independent specialized anti-corruption body,
the Central Anti-Corruption Bureau (CBA). Provisions of Art. 2 of this Act
provides that CBA’s tasks comprise in particular:
– recognition, prevention, and detection of criminal oences with the
denite subject matter.
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– disclosure and prevention of non-observance of the provisions of
legislation about restrictions on the conduct of business activities by
persons performing public functions.
– disclosure of cases of non-observance of procedures, dened by the
provisions of the law on taking decisions and implementation thereof
within the scope of privatization and commercialization, nancial
support, an award of public contracts.
– the accuracy and veracity verication of asset declarations or
declarations on the conduct of business activities by persons
performing public functions.
In pursuance of the function of recognition, prevention and detection
of criminal oenses, under Art. 14 of this Act CBA ocers have rights:
apprehend persons and search persons, premises according to procedures
and circumstances specied in the provisions of the Criminal Procedure
Code; conduct a body search, examine the contents of the luggage, stop
vehicles and other means of transport as well as check the cargo in land,
air and water means of transport in the event of a reasonable suspicion of
a criminal or scal oence; observe and register, with the use of technical
measures, the picture of events in public places and the sound accompanying
such events in the course of performing operational intelligence undertaken
according to the Act.
During the creation of CBA in Poland, the public, lawyers, and
politicians have raised reasonable doubts about compliance provisions of
“On the Central Anti-corruption Bureau” Act 2006 (Pol) to provisions of
the Polish Constitution. It was similar to NABU’s creation case in Ukraine.
But in the case of the CBA, these issues did not deal with the appointment
of the head of the body, but about the legal denition of corruption and
principles of collecting personal data and conducting control activities.
In 2009, the Constitutional Court of Poland declared unconstitutional,
which did not comply with the Convention for the Protection of Human
Rights and Fundamental Freedoms, done at Rome on Nov. 4, 1950. It
abolished provisions of Art. 1 of Act in the scope in which the corruption
in the private sector recognizes the behavior of any person who does not
have a public function, without restricting this term using socially harmful
reciprocal premises. It also abolished provisions of Art. 22 of Act, to the
extent that it enables the CBA to collect data on the protection of personal
data and the use of such data and information obtained as a result of
performing operational and intelligence activities without the knowledge
and consent of the person concerned – without guaranteeing instruments
to control the manner of data storage and verication and how to remove
data unnecessary. Finally, it abolished the provisions of Art. 40 of Act, to
the extent that it permits inspections of real estate or other assets without
specifying the manner of using and storing data obtained in this way, in
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particular regarding third parties not obliged to le asset declarations
(Judgment K 54/07). As a result of this judgment, the institution of the
proxy for personal data protection established. This institution acts as the
administrator of information security in the service and consists of, among
others, annual reports on the status of personal data protection in the CBA
(Fundacją Panoptykon, 2015).
In 2016, 32 (52 %) of the 62 completed CBA criminal cases, materials with
indictments were transferred to the court (CBA, 2016), indicating a more
ecient work of this body, comparing with the corresponding indicator of
NABU (7 %). At the same time, we also found critical publications about
certain facts of CBA executives’ inactivity over the past years. In particular,
an ocer of the Polish military counterintelligence Jarosław Pieczonka
accused the former CBA head of Mariusz Kamiński in the absence of
reaction to his reports about facts of inuence by Russian intelligence agent
on the head of CBA department in Gdansk (Pieczonka, 2016). Moreover,
the inspection of GPO of Poland showed that since the creation of CBA until
June 30, 2015, the prosecutors questioned 5 decisions of the CBA head.
Decisions regarded the refusal to release CBA ocers from the obligation
not to disclose classied information for purposes of pre-trial investigation.
2 of them were considered correct (Seremet, 2016).
2.4. Anti-corruption strategies, programs. The state of their
implementation in Ukraine and Poland
In order to implement the Guiding Principles for the Fight Against
Corruption, taking into account the proposals made by GRECO to Ukraine,
in particular, “On Principles of Prevention and Counteraction Corruption”
Act adopted, and National Anti-Corruption Strategy (NAS) for 2011-
2015 was approved by Decree of the President of Ukraine No.1001/2011.
Following the provisions of NAS, the State Program for Prevention and
Counteraction Corruption 2011-2015 was approved (Resolution of the
Cabinet of Ministers No.1240 2011 (Ukr)). Its purpose was to introduce
mechanisms for reducing corruption in Ukraine. For this ministries, other
authorities obliged to submit to the Ministry of Justice annually information
on the state of implementation of State Program for its generalization and
inclusion into a report on the results of the implementation of measures
on corruption prevention. However, despite all these measures, in 2013,
TI identied the ineectiveness of State Program implementation based
on the results of public monitoring. Among the main reasons for the
ineectiveness of State Program were named:
– lack of adequate funding for most program measures and clear
indicators for their implementation.
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– lack of proper coordination of performers, the inconsistency of
individual tasks with planned activities.
– the limited capacity of performers, low level of performance
discipline.
– lack of a public request for reforms.
– putting responsibility for the implementation of anti-corruption
measures on bodies that are aected by corruption (Khmara, 2013).
Last reason in the context of the principal-agent model conrmed it’s
impracticality in Ukraine.
Next Act, which identied the priority measures to prevent and
counteract corruption, which should form the basis for further reform in this
area, is “On the Principles of State Anti-Corruption Policy in Ukraine (Anti-
Corruption Strategy) for 2014-2017” Act 2014 (Ukr). Art. 18 “Prevention of
Corruption” Act 2014 (Ukr) provides that the principles of anti-corruption
policy (Anti-Corruption Strategy) determined by the parliament. Anti-
Corruption Strategy implemented through the implementation of a state
program developed by NACP and approved by the Cabinet of Ministers.
In compliance with these provisions adopted Resolution of the Cabinet of
Ministers No.265 2015 (Ukr).
The provisions of this Act stated that the previous NAS for 2011-2015 did
not become an eective tool of anti-corruption policy. It is true primarily
because of the absence of clear indicators of state and eectiveness of
its implementation, the absence of a mechanism for monitoring and
evaluation (‘On the Principles of State Anti-Corruption Policy in Ukraine
(Anti-Corruption Strategy) for 2014-2017’ Act 2014 (Ukr)).
Anti-Corruption Strategy for 2014-2017 identied some problems and
measures to address them. In particular, the following key issues identied:
lack of legislative, institutional basis for the formation and implementation
of anti-corruption policy based on cooperation between state bodies and
the public; the democratic nature of the political system in general and the
electoral process in particular; honest public service; corruption prevention
in activities of executive authorities, in the eld of public procurement, in
the judiciary and criminal justice bodies, in the private sector; lack of access
to information; formation of a negative attitude towards corruption among
the population. The State Program on the implementation of the Anti-
Corruption Strategy in Ukraine for 2015-2017, for each section of the State
Anti-Corruption Policy framework, were approved tasks and measures for
its implementation. Established deadlines, bodies responsible for each
task, indicators for implementation, sources of funding provided.
According to NACP analytical report on the implementation of the Anti-
Corruption Strategy for 2014-2017 and the State Program on Implementing
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of Anti-Corruption Strategy, as of the second quarter of 2017, 112
measures of the State Program implemented, 38 partially implemented,
and 23 completed in the course of implementation. Overall, the degree of
implementation of measures assessed only 64 %, only 27 % of State Program
measures implemented on time (NACP, 2017). Among the reasons for this
low quality of its implementation, it may note, the passive attitude of the
responsible authorities, the full launch of the newly created anti-corruption
bodies (NACP, NABU, SAP) only at the end of 2015 - beginning of 2016.
The main problem of the present day in Ukraine concerning the
legislative provision of the Anti-Corruption Strategy is that in 2019 the
Ukrainian parliament did not adopt “On Anti-corruption Strategy for 2018-
2020” Draft Act. We think that a part of the responsibility lies with the
government, which only on April 26, 2018, submitted to the parliament this
bill. Only 18.09.2018 it was included to parliament session agenda. Where
the law has little credibility or serves the interests of corrupt gures and
where legitimate alternatives to corrupt dealings are scarce, crime-and-
punishment strategies may have little success (Johnston, 2011). Thus, in
addition to the above-mentioned reasons for the ineective implementation
of the Anticorruption Strategy for 2014-2017, one can add the lack of
political will on the issues of the formation and implementation of clear
legislative measures aimed at reducing corruption and further promotion
of anti-corruption initiatives in Ukraine.
Considering Poland’s legislation in this area can be noted that art. 19 “On
the principles of development policy” Act 2006 (Pol) states that the state
development program, prepared by the relevant minister, is approved by the
Council of Ministers. In pursuance of this provision, the Council of Ministers
of Poland adopted the Anti-Corruption Program 2018-2020. It denes the
main and special objectives of the program, the scale for measuring the
success of the program objectives, the mechanisms for implementing the
program, the action plan for each task, the implementation and evaluation
of the program implementation division at the level of responsible subjects
(program coordinators, a team appointed by the prime minister, the Council
of Ministers). The main goals of the Polish Anti-Corruption Program
include: strengthening preventive and educational activities; improvement
of mechanisms for controlling corruption threats and monitoring of legal
norms in the area of counteraction to corruption crimes; intensication of
co-operation and coordination between law enforcement agencies in this
area (p. 3.1 Anti-Corruption Program 2018-2020 2017 (Pol)).
One of the criteria for assessing the implementation of the Anti-
Corruption Program, the Polish government has identied the need to
implement at least 80% of planned activities in each task in the middle
of the third year of Program’s implementation (p.3.3 Anti-Corruption
Program 2018-2020 2017 (Pol)). Comparing this indicator with the degree
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(64%) of implementation of Ukrainian Anti-Corruption Strategy for 2014-
2017, we can conclude that, according to Polish standards of evaluation, the
implementation of the Anti-Corruption Strategy for 2014-2017 in Ukraine
cannot be considered successful. Instead, it should note that the potential
threats to the implementation of the Anti-Corruption Program 2018-
2020 in Poland, as in Ukraine, include such a factor as the lack of political
agreement and will to implement the legal provisions on prevention and
counteraction corruption.
Conclusions
As a result of the comparative legal analysis of the anti-corruption
policy of Ukraine and Poland, as well as the practice of its implementation,
established that the mere fact of joining one or another country to
international anti-corruption treaties (Civil Law Convention on Corruption,
Criminal Law Convention on Corruption, Resolution (97) 24, Resolution (99)
5, UN Convention against Corruption, etc.) is not a guarantee of successful
implementation of anti-corruption policy within the country. Indeed, we
can agree that studied countries have dierent syndromes of corruption,
which eects on results of the implementation of anti-corruption policies.
However, identied individual elements of the anti-corruption policies are
also aected on such results. The key to successful anti-corruption eorts
is the existence of modern national anti-corruption legislation that is best
suited to meet the requirements and recommendations relied on by the
state in the relevant international treaties.
Table 1
Comparative characteristics on the presence / absence of individual
elements of the anti-corruption policy of Ukraine and Poland
Ukraine Poland
(GRECO, Criminal Law Convention on Corruption,
UN Convention against Corruption) Membership
+ +
The existence of national anti-corruption legislation + +
Existence of independent/autonomous specialized
anti-corruption bodies
+ +
Availability of legislation on anti-corruption state
strategy/program/plan
+ +
Presence of indicator for assessing the success of
implementing an anti-corruption state strategy/
program/plan
- +
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Comparative legal analysis of the anti-corruption policy in Ukraine and Poland
Presence of an anti-corruption state strategy/
program/plan in force for 2019-2020
- +
CPI Ranking (2020) (Transparency international,
2020)
117 45
Source: own elaboration
The system of legislative regulation of anti-corruption policy of Poland
distinguishes vis-a-vis neighbouring countries of the East European
region (Ukraine) by the list of its elements. These include the existence
of independent specialized anti-corruption bodies that are not aected by
corruption itself, the existence of an anti-corruption state strategy/program
that is not interrupted and contains a list of specic tasks, terms, bodies
responsible for each task, performance indicators, sources of funding, the
existence of clear indicators of evaluating the success of the implementation
of the anti-corruption state strategy / program (Table 1). In this context,
also founded that the independence from external political inuence, the
eective use in the practice of respective powers provided to specialized anti-
corruption bodies by national legislation, and the availability of eective
cooperation between these bodies, is equally important. Unfortunately,
these blemishes currently do not allow Ukraine to successfully implement
its anti-corruption policy, as evidenced in particular by sociological data,
CPI Ranking, as well as statistics about NACP and NABU activities in 2017-
2020.
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