Weekly analysis for 11 — 17 November

Ignoring the rule of law today can strike painfully in the future

Event

On November 13, the Verkhovna Rada registered Draft Law № 14209, “On Amendments to the Law of Ukraine “On Corruption Prevention” to Ensure the Conduct of an External Independent Assessment of the Effectiveness of the National Agency on Corruption Prevention” (hereinafter – the Draft Law).

According to the explanatory note, the Draft Law aims to improve the procedure for conducting an external independent assessment of the NACP’s effectiveness (hereinafter – the assessment) by delegating the authority to approve the assessment criteria and methodology directly to the Commission responsible for conducting the independent assessment of the NACP’s effectiveness (hereinafter – the Commission).

The Draft Law proposes, in particular:

1. to amend the Law of Ukraine “On Corruption Prevention” including the following changes: 

– to specify that the powers of the Head of the NACP shall be terminated early by the Cabinet of Ministers of Ukraine (hereinafter – the CMU) not only in the event of the Commission’s conclusion on the ineffectiveness of his/her activities, but also when it finds that the Head of the NACP has improperly performed his/her duties;

– to require the CMU to adopt a decision to initiate the formation of the Commission no later than 30 calendar days before the end of the two-year period following the approval of the most recent external independent assessment (audit) report on the NACP’s effectiveness (the latest such report was published on 24 July 2023);

– to provide that the Commission, within one month of the approval of its membership, must adopt and publish the criteria and methodology for assessing the effectiveness of the NACP. These must be based on the statutory powers of the Agency and include, among others, the criteria for determining improper performance of duties by the Head of the NACP and the criteria for identifying ineffective performance by the NACP as an institution (under the current law, this authority is vested in the CMU).

2) to set out in the Final Provisions the following obligations after the Law enters into force:

– the CMU must, within five working days, start the formation of the Commission’s membership;

– the Secretariat of the CMU must, within one week, provide the CMU with a list of donors that have provided Ukraine with international technical assistance in the area of preventing and combating corruption over the past two years;

– the Commission must, within eight months, approve the opinion of the external independent assessment of the NACP’s effectiveness.

Thus, if events develop unfavorably for the current Head of the NACP, his/her mandate could be terminated approximately one year before the expiration of the four-year period to which he/she was appointed.

CPLR’s assessment

The Centre of Policy and Legal Reform generally supports the Draft Law, with the exception of the provisions allowing the CMU to prematurely terminate the Head of the NACP’s mandate within eight months of the Law’s entry into force in the event the Commission concludes that the Head has improperly performed his/her duties.

Indeed, similar provisions can be found in other laws. 

For example, Article 6 of the Law “On the National Anti-Corruption Bureau of Ukraine” (hereinafter – NABU) provides that “The Director of the National Bureau shall be dismissed if… the Commission for conducting the external independent assessment (audit) of the National Bureau’s effectiveness, as provided in Article 26 of this Law, issues an opinion finding the Bureau’s activities ineffective and the performance of duties by its Director improper”.

Similarly, under Article 3 of the Law “On the National Agency of Ukraine for the Detection, Search, and Management of Assets Derived from Corruption and Other Crimes” (ARMA), “The Head of the National Agency shall be dismissed in the event … the external independent assessment (audit) conducted according to Article 12 of this Law finds that the Agency’s activities are ineffective or that the Head has improperly performed his or her duties”. In fact, these provisions concern the disciplinary accountability of the leaders of the respective institutions.

However, the situation is fundamentally different: both the Director of NABU and the Head of ARMA assumed their offices fully aware from the outset that they could be dismissed both if an audit finds the respective institutions ineffective and if it finds they personally performed their duties improperly. Consequently, this awareness gave them the opportunity to anticipate such risks and to take steps to shape not only the criteria for assessing the effectiveness of NABU and ARMA, but also the criteria for assessing the proper performance of their own duties, and to devote proper attention to this matter.

By contrast, the Head of the NACP currently is not aware of the criteria by which his/her performance will be assessed and therefore is unable to plan his activities with regards to a future assessment. In other words, the reform of the NACP proposed by Draft Law № 14209 must take into account the principles of legal certainty and the non-retroactivity of law.

The well-known Venice Commission report “The Rule of Law” (Venice, 25–26 March 2011) emphasizes that a state “has a duty to respect and apply, in a foreseeable and consistent manner, the laws it has enacted. Foreseeability means that the law must where possible be proclaimed in advance of implementation and be foreseeable as to its effects: it has to be formulated with sufficient precision to enable the individual to regulate his or her conduct”.

According to Article 58 of the Constitution, laws and other regulatory acts shall have no retroactive force except where they mitigate or nullify the responsibility of an individual. As the Constitutional Court of Ukraine notes, this means that laws and legal acts apply only to relations that arise after their enactment.

Enshrining this principle at the constitutional level ensures the stability of social relations, particularly those between the state and its citizens, and gives citizens confidence that their existing status will not be adversely affected by the adoption of a future law or another legal regulation.

Thus, the sequence of the proposed NACP reform, which could potentially affect both the individual holding the position of its Head and the leadership of the NACP and its divisions overall, as well as other key aspects of the institution’s operations, should be as follows:

– first, a law must be adopted and enacted providing for the possibility of early termination of the Head of the NACP’s mandate in the event that the Commission issues an opinion finding that the Head has improperly performed his/her duties;

– next, new criteria shall be established to assess both the effectiveness of the NACP’s activities and the proper performance of duties by its Head;

– then, a two-year period shall pass following the most recent external independent assessment of the NACP’s effectiveness;

– only after this the Commission may, if warranted, issue an opinion regarding the effectiveness or ineffectiveness of the NACP’s operations and the proper or improper performance of duties by its Head.

Failure to adhere to this sequence in a state governed by the rule of law risks the annulment of any CMU act terminating the Head of the NACP’s mandate, on the grounds that it undermines the legally established level of independence guaranteed by current legislation, either by a decision of the European Court of Human Rights or by a ruling of the Constitutional Court of Ukraine.

Moreover, no matter how urgent it may appear to correct a mistake (whether made by the legislature, the government, or the Head of the NACP), this must not be done at the expense of the rule of law.