Public ethics and accountability are essential concepts underpinning an effective local or regional authority. They refer to the culture, processes, structures and rules that ensure those in public office act in the wider public interest, rather than their own self-interest. They are an essential feature of good governance, and it is important that they are respected and monitored by relevant organisations.
Ethics embody the rules that define the conduct of public officials in order to ensure that the public is treated fairly and equitably. Ethics help officials make better decisions in the public interest and help people evaluate the decisions taken on their behalf by public officials.
Public accountability ensures that officials are openly answerable for the decisions they are taking on behalf of the public.
In the absence of public ethics and accountability, corruption and malpractice are able to thrive. As outlined in the final chapter, corruption is damaging to individuals, society, the economy and government in a number of respects. The prioritisation of public ethics and accountability can help curb the worst excesses of power and encourage more responsible and fairer decision-making by local authorities.
Even where corruption is not endemic, the absence of public ethics and accountability can be corrosive to public trust in government, public institutions and officials. While the relationship between public ethics and accountability is complex, consistent and timely application of both can help to build and strengthen trust between the public and government.
Furthermore, public ethics and accountability can contribute to a positive environment where it is recognised that citizens and other stakeholders contribute to the quality of the decision-making process. Combined with citizen participation tools, public ethics and accountability can help to ensure that citizens’ personal experiences, expertise, knowledge and scrutiny add value to, and strengthen, decisions taken by government and public officials.
Elected representatives should be aware of the process by which declarations of assets are monitored and by which body, and which sanctions can be applied, and how, in the event that an office-holder makes a false or incomplete declaration. They should know the rules governing whistle-blowing and which official or officials are responsible for considering whistle-blowers’ complaints and reports of wrongdoing. Local authorities need to ensure in-house training for newly elected representatives and provide regular refresher training for all elected officials. Knowledge and understanding of the legal and institutional framework are essential if elected representatives are to succeed as role models of political integrity.
Finally, public ethics and accountability are key to improving public services because public services that are more responsive and accountable to people – and benefit from their insights, ideas, energy, and scrutiny – will work better for people and the community as a whole.
Taken together, public ethics and accountability help to ensure that decision-making and resource allocation are fair, efficient and effective, which in turn helps to enable a flourishing democracy, economy and society. To this end, the Congress of Local and Regional Authorities of the Council of Europe adopted the European Code of Conduct for all Persons Involved in Local and Regional Governance, encouraging local and regional authorities and associations of local and regional authorities to design appropriate educational programmes in integrity management and to implement advisory services to help their staff to identify and deal with potential ethical risk areas and conflict-of-interest situations.
Transparency and citizen participation are important mechanisms for promoting public ethics and accountability in central and local government. A recent report for the European Committee of the Regions on “Preventing Corruption and Promoting Public Ethics at the Local and Regional Level in Eastern Partnership Countries” found that lack of transparency was the main vulnerability in all of the cases assessed. This handbook outlines a range of transparency and citizen participation mechanisms that can be adopted by local and regional authorities.
 For the purpose of this publication, the term “public officials” refers to elected representatives, public authorities and civil servants (either at local, regional or central government level) who hold a legislative, administrative or judicial office, and to any person exercising a public function, including for a public agency or a state-owned enterprise.
One of the more widespread revendications of the Maidan protesters in 2013 was the punishment of corrupt politicians.[i] This sentiment has continued to grow over the years. For instance, in 2018, 91% of citizens considered corruption as a severe problem in Ukraine, out of which 61% were sure that it was the severest problem, hindering the economic development of the country. In the same year, 58% of the population considered the anti-corruption reform as a priority and 83% of citizens believed that the fight against corruption in Ukraine was not successful.
In comparison with 2017, the level of awareness of Ukrainian people on the damaging effects of corruption grew substantially. For example, 44% of Ukrainian citizens identified corruption as the main problem in 2017; this figure increased to 61% in 2018. In addition, 12% of people identified corruption as a not too serious problem in 2017, while only 4% thought so in 2018.
After the 2014 Euromaidan Revolution, the Parliament of Ukraine, in close consultation with civil society and international organisations, brought anti-corruption legislation to a new level. On 14 October 2014, a package of anti-corruption laws, including the Anti-Corruption Strategy 2014-2017 and the Law No. 1700-VII “On Prevention of Corruption”, was adopted. The Law also stipulates some significant provisions on ethical conduct (Section VI. Rules of Ethical Conduct).
Other changes included the creation of special institutions, such as the National Agency on Corruption Prevention (NACP), the National Anti-Corruption Bureau of Ukraine (NABU) for investigation of corruption, the Special Anti-Corruption Prosecutor’s Office (SAP) and the National Agency for finding, tracing and management of assets derived from corruption and other crimes (ARMA). Besides, the High Anti-Corruption Court of Ukraine was established as per the Law 2447-VIII of 8 June 2018 and came into operation in September 2019. Amendments to the legislation have increased the penalties for corruption, including administrative or criminal liability for corruption-related offences. Since its establishment, the High Anti-Corruption Court (HACC) have examined cases of embezzlement, misuse or misappropriation of another person’s property by means of abuse of office by a public official (Article 191 of the Criminal Code of Ukraine), abuse of power or office (Article 364 of the Criminal Code), and acceptance of an offer, promise or receipt of undue benefit by a public official (Article 368 of the Criminal Code). During its first year of operation, the HACC issued 16 convictions and one acquittal. Investigative judges considered 185 motions on interim measures.
The Draft Anti-Corruption Strategy for 2020-2024 and the Draft Law “On the Principles of State Anti-Corruption Policy for 2020–2024” have been discussed in the format of public consultations using the NACP online platform. The Anti-Corruption Strategy is a document that helps ensure the participation of all authorities in combatting corruption. The development and co-ordination of the implementation of the Anti-Corruption Strategy is the responsibility of the NAPC, assigned to it at legislative level. To ensure the document’s relevance and high quality, the NAPC was called upon during the drafting of the Anti-Corruption Strategy undertaken by experts, civil society activists, international partners and all interested citizens through online discussions held in early July 2020.
The development of the Strategy has been based on 5 main principles:
1. Optimisation of the functions of the state and local self-government in order to deprive authorities from using excessive powers and eliminate the duplication of their functions.
2. Reducing the "human factor" and increasing transparency and efficiency in the state's relations with citizens and organisations through the introduction of rules of general administrative procedure and digitisation of most procedures and services;
3. Creation of convenient and legal alternatives to corrupt practices;
4. Ensuring effective state control over the observance by public servants of the rules of ethical conduct and the requirements of anti-corruption legislation;
5. Ensuring the inevitability of liability for corruption and corruption-related offenses.
Ukraine has also established a legislative basis for the implementation of ethical values and norms of the civil service. The Law of Ukraine No. 889-VII “On Civil Service” indicates that the main duties of the civil servants include a duty “to adhere to the principles of civil service and rules of ethical conduct” (Article 8). Requirements to representatives of local authorities are stipulated in the Law of Ukraine No. 280/97-ВР “On Local Self-Government”, in particular when defining the main principles of local self-government: “…, transparency, collegiality,…, accountability and responsibility of their bodies and officials to territorial communities,… “ (Article 4).
The issue of ethics in public bodies at national and local level is stipulated by the General rules of ethical conduct of civil servants and local self-government officials approved by the State Agency of Public Service in 2016. The General rules aim to strengthen the quality and reputation of civil servants and local self-government officials, as well as to ensure that citizens are well informed about the norms of conduct in public bodies. In the General rules it is indicated that the main objective of civil servants and local self-government officials is to serve the people of Ukraine and territorial hromadas, and to protect and facilitate the implementation of rights, freedoms and legal interests of any citizen. In so doing, the conduct of civil servants and local self-government officials will increase citizens’ trust in the civil service and local self-government bodies.
Transparency and citizen participation have been formally recognised and accepted as main pillars in the prevention of corruption, and crucial to achieve public trust. Since 2011, Ukraine has been a member of the Open Government Partnership (OGP) - a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. Currently, Ukraine will start the implementation of its fifth Action Plan for 2021-2022. The implementation of previous OGP commitments provided solid guidance for the realisation of transparency and support for citizen participation.
Legislative reforms in 2015 brought e-democracy and e-governance to the fore. The main milestones achieved were the introduction of e-petitions and the regulation of open data and on the open use of public funds. Success stories, such as the implementation of the e-platform ProZorro, boosted public interest through the promotion of transparency and fair competition in the process of public procurement, thus significantly improving Ukraine’s position on the international E-Government Development Index scale. Despite considerable improvements in the legislation, the implementation of laws and governmental commitments remains a challenge.
Through the decentralisation reform, local authorities’ influence and responsibility are steadily increasing. Improving local governance, with special emphasis on transparency and citizen participation, is a key element in overcoming the multiple challenges Ukraine faces nowadays.
[i] According to a survey conducted by the Ilko Kucheriv Democratic Initiatives Foundation and the Kyiv International Institute of Sociology on 7-8 December 2013 in Kyiv during the Euromaidan, 49.6% of the respondents considered it crucial to punish the corrupt political elite.
Codes of ethics establish basic principles by which public servants must abide, such as integrity, selflessness and openness. A code of conduct draws on the code of ethics to formulate standards and practices that should be applied to the particular circumstances of an institution.
A code of conduct sets out specific standards of professional behaviour expected in a host of situations and provides public officials with guidance for handling them. In addition, codes of conduct bring transparency and public accountability into governmental operations.
Well-designed codes of ethics and codes of conduct will help meet the growing expectations from the public, business leaders and civil society for greater transparency and integrity in government, and will places an onus on governments to ensure high ethical standards amongst public officials and elected representatives. As such, they can support the development of trust between the public and government institutions and officials. It is important that codes of conduct are in place for both civil servants and elected officials, and that training and guidance is provided to ensure a full understanding of the codes by all office-holders. Disciplinary measures and sanctions should be clearly stipulated and consistently applied in the event of noncompliance with the codes.
The following international conventions and standards relate to codes of ethics and professional conduct:
The importance of codes of ethics and conduct for public officials and elected representatives is widely highlighted in the national legislative framework and strongly supported in the work of civil society. For instance, creating a trustworthy public service is one of the objectives of the National Anti-Corruption Strategy 2014-2017. Article 37 of the Law No. 1700-VII “On Prevention of Corruption” stipulates that local public authorities should elaborate and implement codes of ethical conduct in different fields of public administration. Thus, the introduction of the code of ethical conduct for public officials is becoming an increasingly common practice.
The Law No. 1700-VII “On Prevention of Corruption” (Section VI, Articles 37-44) provides rules for the ethical conduct of public servants and state officials. These rules include the respect of the rule of law and ethical norms, priority of the public interests, political neutrality for public servants, impartiality, competence and effectiveness, and abstaining from implementing unlawful decisions. The National Agency on Corruption Prevention (NACP) monitors and controls its implementation and provides clarification and guidance on the rules of ethical conduct and prevention of conflict of interests (Article 11).
Ethical principles are defined in the Laws "On Local Self-Government", "On the Status of Local Councillors", and "On Service in Local Government Bodies". On August 5, 2016, the National Agency of Ukraine for Civil Service issued an order "On approval of the General rules of ethical conduct of civil servants and local government officials."
Civil servants in their activities are guided by civil service’s principles of ethics, based on the provisions of the Constitution of Ukraine, legislation on civil service and prevention of corruption, namely:
The National Agency of Ukraine for Civil Service provides “General Rules of Ethical Conduct for Civil Servants and Local Government Officials”. The guidelines cover four blocs: general duties of civil servants and local authorities; use of official position; use of state resources; exchange of information and obligation to provide access to public information. Every new public official must be informed about the rules of ethical conduct. Moreover, their compliance with these rules is assessed in an annual evaluation.
Within the project ‘Transparent cities’, the NGO Transparency International Ukraine provides guidelines for the 100 largest cities in Ukraine, based on the assessment of each city in the fields of transparency and accountability.[i] The methodology for assessing the transparency of cities evaluates the existence of local acts that would approve codes or similar documents of deputy ethics, as well as the ethics of officials of local executive bodies and utilities.
Among the main criteria that determine the level of professional ethics are the following:
Other criteria can be found in the new 2020 City Transparency Ranking Methodology.
[i] The project is implemented by TI Ukraine, TI Slovakia and the Institute of Political Education of Ukraine, with support of the United Nations Democracy Fund. For further information, see: https://transparentcities.in.ua/about/
Creating and introducing a code of ethics was one of the priorities of the project ‘Local initiatives on ethical governance and transparency’, implemented by Netechyntsi and Slavutych communities.[i] In the course of the project, the small community of Netechyntsi (Khmelnitsky region) elaborated a code of ethics based on public discussion with its local community. The experience of Netechyntsi was applied as a best practice to follow and implement in the neighbouring communities.
A unique example of good practice comes from the city of Slavutych (Kyiv region). Although this city had adopted the “Code of ethics, honour, good faith, fair and effective governance of the Slavutych territorial community” in 2007, it amended it in 2017 to take into account citizens’ demands. The text of the former code of ethics was updated during several public consultations facilitated by the Community Initiatives Support Office. This Support Office was created as part of the project as a permanent mechanism for monitoring the implementation of ethical standards, and as an open platform for discussion between local authorities and the community.
[i] The project was supported by the Congress of Local and Regional Authorities of the Council of Europe as part of the thematic programme ‘Strengthening institutional frameworks for local governance’, within the framework of the Council of Europe / European Union Partnership for Good Governance (2015-2017) in the Eastern Partnership countries.
Complaints mechanisms allow citizens to provide feedback to public authorities on the standards of services they receive. They provide an important accountability mechanism which allows civil servants and elected officials to identify where public services are being delivered ineffectively, inefficiently or inequitably. When such mechanisms result in the prompt and effective handling of complaints , they can help to create the conditions for increased trust of citizens in government administration.
To ensure confidence in the mechanisms, local authorities should endeavour to consider and resolve each complaint promptly and comprehensively. Complaints mechanisms can be made more accessible by applying a one-stop-shop approach so that citizens do not need to search among different offices and websites.
If government takes a proactive approach to pre-empt the repeat of similar causes for complaint, complaints mechanisms can also help governments to identify new approaches to service delivery and to increase citizen participation. To this end, complaints mechanisms should be combined with periodic evaluations of service delivery, including the use of public opinion surveys, and exchange of experience and tools with other local authorities to encourage wider adoption of good practice and tried and tested tools.
There are no specific international standards for complaints mechanisms relating to public services. However, mechanisms and procedures for responding to complaints are incorporated into an international legal guarantee to the right to participate in the affairs of a local authority, and there are a number of helpful civil society guidelines and handbooks. See for example:
Complaints mechanisms fall under the citizens’ right to address public authorities, as enshrined in Article 40 of the Constitution of Ukraine. Since July 2015, when the amendments to the Law “On Citizens’ Appeal” allowed citizens to submit petitions electronically, several local authorities have created e-platforms for citizens’ appeals, which boosted citizen participation.
Law No. 393 “On Citizens’ Appeal“ defines (Article 3, paragraph 4) and regulates (Articles 16-19) the application of complaints mechanisms. Both national and local authorities are obliged to objectively consider citizens’ complaints, to compensate citizens for any breach of their rights and to provide justification for any decision taken in the examination of complaints. The violation of the abovementioned Law leads to the disciplinary, administrative or criminal liability of public officials (Articles 24-25).
The manual Tools of e-democracy in Ukrainian cities encourages local authorities to combine online and offline citizen complaint mechanisms. While the online form simplifies the complaints procedure and is mostly addressed to young people, the possibility to submit a complaint offline engages older citizens, or those who are sceptical towards new technologies. The creation of special citizen complaint centres, and the good accessibility and ease of the complaint process are highlighted as good practices.
Odesa City Council created the citizen complaint centre ‘1535’ (1535.odessa.ua). Its dedicated website provides a well-structured overview of citizen complaints and the ensuing response from the public authority. The interactive map enables to see where the complaint is located. All complaints are categorised in three colours (new – red, in progress – yellow, and processed – green) and 12 themes, such as roads, parks, heating and water supply, among others, are also featured. A special section of the website called “before and after” shows photos comparing the subject of the citizens’ complaint (in most cases related to infrastructure) before and after being repaired or resolved. Such visualisation makes citizens aware of the efficiency and effectiveness of their local government, increases trust and encourages citizen participation.
The Ivano-Frankivsk City Council has enabled the submission of complaints regarding the development of the city, road and footpath maintenance, public spaces, etc. through the Facebook group "Kommunalka" (facebook.com/groups/komynalka) and the Rapid Response Service 1580 (1580.if.ua).
The Open City project is a crowdsourcing Internet platform (opencity.e-dem.ua) for residents to interact with local authorities and utility providers, as well as for self-organisation of citizens. To do this, there are 2 sections on the site:
To report a problem to residents, you need to take the following steps:
Grievance redress mechanisms (GRMs) are tools that go beyond complaints mechanisms and other feedback channels as citizens can use a GRM to address government institutions and local municipalities with concerns about the impact of policies and their implementation on the citizens themselves. When the policy of a public agency affects the interests of the citizens, or the decision made by the central or local governmental bodies causes a grievance on the part of the citizens, interested parties can use the redress system created by the government agencies and local municipal bodies to present their grievance. A grievance redress mechanism is not used to replace the court or audit system or formal investigation; nor is it the appropriate mechanism for grievance about potentially criminal acts, such as instances of corruption. GRMs are designed for collaborative solutions of grievances.
Redress mechanisms serve as a frontline service to be used by citizens to effectively resolve complaints and/or grievances. Furthermore, business organisations can use GRMs to mitigate risks to their business operations and GRMs can become a prompt and effective mechanism for dispute settlement short of legal action.
Effective redress mechanisms can serve to identify patterns of corruption and malpractice, and to forge corruption prevention policies. To ensure greater access, it is important to raise public awareness about GRMs and to provide free advice to citizens on the formulation of grievance claims and how to proceed when seeking redress.
Standards for grievance redress mechanisms are mostly set by international organisations such as the World Bank, Asian Development Bank (ADB), Organisation for Economic Co-operation and Development (OECD), United Nations Development Program (UNDP) and European Commission. These standards are mostly connected with setting the legal framework for the protection of citizens’ rights. These standards are presented in the following guidelines:
Corruption and other actions harmful to the public interest, including to public health, are more prevalent in organisations that lack a culture of transparency and oversight. A whistle-blower is a person who exposes information on illegal or unethical activities in a private or public organisation, and the rights of a whistle-blower who discloses wrongdoing, or acts and omissions harmful to the public interest, should be protected under “whistle-blowing” laws. Although usually an employee, the whistle-blower could also be a sub-contractor, supplier, unpaid trainee or volunteer. The protection of whistle-blowers is important also in the private sector, not least where they might uncover bribery to public officials or practices damaging to the environment or public health and safety.
Most whistle-blowers raise their concerns internally or with regulatory or law enforcement authorities rather than blowing the whistle in public. The protection of whistle-blowers, and an organisational culture that prioritises transparency and dialogue, serves to promote accountability, builds confidence in the integrity of government, and encourages the reporting of misconduct and corruption. Whistle-blower protection can motivate employees to report wrongdoing without fear of reprisals, and fosters transparency and trust within an organisation as well as outwards to citizens that ethics are upheld and misconduct detected and remedied.
The rights of whistle-blowers can be strengthened by stipulating clear processes and providing secure confidential channels for disclosure. Explicit remedies, including penalties, to redress reprisals against whistle-blowers should be introduced and consistently applied. Training of human resources staff in local government and government agencies needs to be complemented by awareness-raising among the public so that citizens and government employees alike understand the positive results from whistle-blowing in terms of sustained value for money, trust in public authorities, and quality of services.
The following international conventions and standards relate to the protection of whistle-blowers:
Disclosure is the act of routinely publishing and updating particular types of information, sometimes required by law, such as the financial interests of public officials. It can support anti-corruption measures by requiring the routine publication of assets and interests that could represent a conflict of interest. A conflict of interest arises, or can be perceived to arise, when the private assets or interests of public officials can improperly influence policies and decisions taken during the exercise of their official duties.
Disclosure requirements can build citizens' trust in the transparency and integrity of local decision-making. They also assist public officials in having regularly updated information that prevents conflicts of interest arising among employees. Disclosure of financial assets also provides important information to help clarify if elected officials or civil servants do not have wealth that is disproportionate to their income, either protecting them from false accusations or serving as evidence in the case of suspected illicit enrichment.
Service delivery at the local government level, whether it be construction or tendering of waste-management services, is often subject to conflicts of interest due to the proximity of local entrepreneurs to government officials. Confidence of the public and business that competition for local government tenders, for instance, is open to all without discrimination will be much greater if both elected officials and civil servants involved in design of the tenders and assessment of tender submissions have completed declarations of assets and interests (including of close family members).
It is important that the institutions responsible for gathering and monitoring declarations are provided with protection against political or other interference in their work, for instance through oversight by independent ethics committees. Likewise, local government officials should be provided with clear guidance on what to declare, and also on prevailing anti-corruption legislation. A well-implemented and regularly updated and monitored assets declaration system can complement the work of an effective prosecution service.
Disclosure is an important element in the conventions and standards against corruption listed elsewhere in this handbook. Of particular relevance are:
The launch of the electronic asset declarations system (public.nazk.gov.ua), which represents the single state database of asset declarations, and making these declarations accessible online are considered crucial accomplishments in the area of prevention of corruption in Ukraine. The system became not only a tool of public scrutiny and transparency, but also an instrument for law enforcement bodies to hold accountable those liable of corruption offences. Despite several attempts to sabotage the system and obstruct its implementation, an unprecedented number of public officials have disclosed their assets and declarations of conflicts of interest.
The legal regulation for the disclosure of assets declarations is provided in Chapter VII “Financial Control” (Articles 45-52) of the Law No. 1700 “On prevention of corruption”. Since 15 July 2016, two Regulations of the Ministry of Justice announced the process of disclosure and initiated the launching of the electronic asset declarations system for those persons authorised to perform public functions, either at national or local level.
National, regional and local authorities, as well as members of their families, are obliged to disclose their assets (real estate, monetary funds, cash, loans, etc.) and to declare possible conflicts of interest (job position, contracting services, participation in the civil council, etc.).[i] This data remains open and available on a single state database of asset declarations.
The NACP controls the deadlines, examines lawful submission of declarations, the accuracy of the information, and monitors whether the declared assets correspond with the public official’s lifestyle. In case of misconduct, the NACP informs the special anti-corruption agencies. The misconduct leads to disciplinary, administrative (Article 172-6 of the Administrative Code) or criminal (Article 366-1 of the Criminal Code) liability.
[i] The NACP provides guidance on how to fill in an e-declaration here.
The National Agency on Corruption Prevention (NACP) has created a dedicated website providing practical guidelines for public officials on how to use the single state database of asset declarations. Besides, the NACP provides interactive voice support for the preparation of e-declarations.
Since 2016, a number of regional state administrations have provided special training courses for local public authorities on how to properly prepare and submit e-declarations.[i] The Sumy Oblast Council provides a general overview of relevant information on e-declarations for local public authorities on the council’s website. The Cherkasy regional administration, in addition to general information on e-declarations, has systematised the information for different categories of public officials. These actions can help public officials stay informed about their duties and avoid unintended mistakes in the process of disclosure.
[i] The NACP, with the support of the UNDP and experts from civil society organisations, provide these training courses. For further information, see examples of these courses in the Lviv regional state administration.
The principle of transparency is applied to ensure that those affected by administrative decisions have comprehensive information about the results and implications of policies and about the process of decision-making. The public availability of information about government policies, programmes and activities enables citizens and local communities to gain a clear understanding of government actions, make informed choices, and participate in local decision-making processes. It also enables elected officials, those in government and those in opposition, to take informed decisions and to exercise effective scrutiny and hold the executive to account for their actions. In addition, access to information is essential for journalists and civil society representatives to effectively perform their watchdog functions and hold the government accountable.
Local government should make data available to the public in an accessible format and do so in a timely manner. This enables citizens and stakeholders to participate in decision-making processes from an informed perspective, and to monitor and evaluate government implementation of policies and decisions in order to hold public officials accountable for their actions. Transparency is achieved through a range of mechanisms, building on the right of citizens to access information. These include the disclosure of the financial assets and interests of senior public officials and elected office-holders, and the publication of information in accessible, intersearchable open-data formats.
According to the definition of the Open Knowledge Foundation, “open data is data that can be freely used, re-used and redistributed by anyone – subject only, at most, to the requirement to attribute and share alike.” Therefore, the concept of open data goes beyond the availability of public information and focuses on its use, out of which additional economic, social and political benefits are generated. To make it happen, the data published should be complete, permanent, non-exclusive, non-discriminatory, and non-proprietary, as well as provided by primary sources, in a timely manner and in machine-readable formats (more information here and here).
Limited access to public information negatively affects public trust towards public institutions, increases potential corruption risks, and restricts opportunities for various stakeholders to monitor government performance. It also inhibits citizens and stakeholders’ efforts to participate in policymaking and to design evidence-based policy recommendations for positive changes. The practice shows that access to information legislation and proper enforcement measures are an essential part of the enabling environment for citizens’ access to information.
Public procurement is considered to be one of the key areas susceptible to corruption. It accounts for around 12 percent of global gross domestic product, and in most high-income economies the purchase of goods and services accounts for one-third of total public spending. In short, public procurement is a significant area for potential corruption, collusion and other illegal practices. To avoid public procurement-related corruption risks, electronic means and platforms operating through open data solutions are increasingly available and used by government authorities to reform state procurement tendering procedures. Combined with open contracting (where bids and contracts are made public), the increase in fully accessible, well-publicised procurement processes opens tendering to more bidders and reduces the scope for anti-competitive practices and bribery.
Another important component of transparency principles is the openness of the financing of political parties and election campaigns, as it is important for the electorate to know the sources of financing, and how the money is spent, in order to make informed decisions and to understand which financial, political or other interests are supporting particular candidates or parties. The transparency of political donations is a preventive measure against the use of money emanating from illicit and criminal sources in politics and elections.
Finally, to ensure that state resources are used in an economical, efficient and effective way, the independence and institutional capacity of the body responsible for external audit should be secured. Members of the wider public should have the possibility to familiarise themselves with reports and major recommendations issued by the auditor. External audit is important to identify major challenges in the public sector, improve transparency and performance of public institutions, and design evidence-based policies.
Access to information is the legal right for citizens to request and receive information from public authorities. It is often enacted by Freedom of Information legislation. As an integral part of the right of freedom of expression, access to information is a human right and everyone should have the right to access information from public bodies and public agencies in accordance with the principle of maximum disclosure subject to only a narrow, clearly defined, set of exceptions proportionate to the interest that justifies them (e.g. grounds of security or data privacy). More information here and here.
Access to information supports accountability, oversight of government, and monitoring of corruption. It is also critical to informed citizen participation in decision-making, and is therefore fundamental for the effective functioning of democracies. Free access to information empowers civil society to monitor and scrutinise the actions of local authorities, it serves to prevent abuse of power by public officials, and provides data for informed public debate.
The proactive publication of the maximum amount of information in the most accessible formats serves to reduce the need for citizens and stakeholders to file individual requests for the release of information. As well as providing the maximum amount of information electronically, local authorities should prioritise the designation of Freedom of Information officers in their municipalities. Such officers should prepare and publish detailed recommendations for both citizens and local authorities, and provide clear guidance on the appeals process in the event that a request for information is not granted. It is also important to analyse information requests from citizens and stakeholder groups, in particular trends and duplication, so that the authorities can subsequently release such information on a proactive basis.
Access to information is a fundamental component of a number of the conventions and standards against corruption listed elsewhere in this handbook. It also underpins a number of key UN human rights documents. The following specifically relate to Access to Information:
Access to information in Ukraine is considered to be highly developed. Advanced legislation on access to information allowed journalists and activists to reveal multiple corruption cases. Nevertheless, there are still challenges in the enforcement of the right to access information, most of them relating to public servants’ lack of knowledge of legal requirements and how to put them into practice. It has been reported in analysis of the implementation of access to information that responses are often of poor quality, incomplete or provided with delay. In addition, the fees of administrative proceedings are unreasonably high, thereby discouraging citizens to initiate administrative proceedings.
To overcome these challenges, leading NGOs in Ukraine initiated the Fund of the Right for Information Protection and over 150 lawyers joined the Network of Defenders of the Right to Access Information. The Network provides free expert legal assistance and relevant judicial support with the aim to guarantee legal protection of the right of access to information.
The Constitution of Ukraine protects citizens’ right to access information (Article 34, paragraphs 2 and 3). The Laws No. 2939 “On Access to Public Information”, No. 2657 “On Information”, and No. 183 “About state secret” regulate access to information. In line with the Law “On Access to Public Information”, no information held by public authorities can be restricted, unless an assessment reveals that the information is confidential, or secret, or for internal use only. Restriction of access to information must be based on the so-called “three-part test” (tryskladovi test) of public information, as stipulated in Article 6, paragraph 2. The Law provides for the obligation to create structural units or appoint freedom of information officers by public authorities. The Law assigns some monitoring functions to the Secretariat of the Ukrainian Parliament Commissioner for Human Rights (Ombudsman’s Office). International organisations recommend however to set up or designate an independent authority to supervise and enforce regulations on the access to public information.
The violation of the right to request and obtain information from public authorities can be punished by a fine of up to 80 non-taxable minimum income (UAH 1,360), as stated in Article 212.3 of the Administrative Code. The unlawful refusal to provide access to public information for journalists in their work can be punished by a fine, or 3 years’ imprisonment (Article 171 of the Criminal Code). On the other hand, the punishment for revealing a state secret can reach up to 5 years’ imprisonment.
The website “Access to the truth” (dostup.pravda.com.ua) is a platform for the submission of electronic requests to holders of information, in accordance with the Law “On Access to Public Information”. To obtain information, the applicant must:
A request for information constitutes a person’s request to the information manager asking to provide public information or documents that contain the information and are in his/her possession (for example, information on the use of budget funds or a copy of the decision of the city council session). In Ukraine, individuals (be it citizens of Ukraine, foreigners or stateless persons), public associations and legal entities have the right to access public information.
The Platform of access to public information ‘Ombudsman Plus’ monitored the implementation of the legislation on access to information in different regions of Ukraine, and identified Vinnytsia and Odessa regional state administrations, Ternopil Oblast Council and Kherson City Council as best practice cases. These local public authorities have achieved the implementation of the right to access to public information by following these steps:
Open data is the publication of data and information in a format that may be freely used, modified and shared. The OECD states that open data is “a set of policies that promote transparency, accountability and value creation by making government data available to all”. By making data generated through the activities of public bodies available, government becomes more transparent and accountable to citizens. It also supports business growth and the development of services centred on citizens, and provides important data for research and innovation by public bodies, the private sector, and civic stakeholders.
The promotion of open data through one-stop portals can further increase the scope for interoperability of datasets in terms of search and analysis. The results can improve the efficiency and reach of service delivery and reduce corruption. Awareness-raising among stakeholder groups, the media, businesses, and the wider public can result in effective co-operation among different stakeholders and improvements in solutions on transportation, recreation facilities, parking zones, health services, and much more.
It is important to adopt consistent open data standards for all open data to ensure maximum interoperability and searchability of data. Local authorities should also ensure that qualified staff manage the municipality's open data publication, and train relevant employees in open data standards.
Open data is a relatively new phenomenon without officially endorsed standards. However, a number of useful guidelines exist:
On 9 April 2015, a major step was made towards open data in Ukraine with the adoption of the Law No. 319 “On amendments to some laws of Ukraine on access to public information in the form of open data”, which introduced significant changes in other relevant legal acts. These changes obliged public authorities and local governments to publish and update public information in the form of open data on a regular basis. Open data must be provided free of charge on the webpages of the authorities and on the single state open data website (data.gov.ua).[i] The State Agency for E-Governance implements open data provisions and provides support to local public authorities.
Open data provisions in Ukraine have enabled significant progress in the public control of the state and local budgets,[ii] public procurement[iii] and beneficial ownership disclosure.[iv]
[i] Based on the Law on access to public information, on 21 October 2015 the Government of Ukraine issued the Act No. 835 “About Information that must be published as open data” (available at: http://www.kmu.gov.ua/control/uk/cardnpd?docid=248573101). This Act entrusted the State Agency for E-Governance to ensure the functioning of the single state website for open data: http://data.gov.ua
[ii] The Law No. 183 “On Open use of Public Funds” imposed the online publishing of the information about state and local budgets transactions.
[iii] The electronic system ProZorro became known worldwide as an example of public e-procurement system.
[iv] Ukraine is the first country in Europe that legislatively obliged all companies to indicate their beneficial owners. In May 2017, Ukraine signed the Memorandum on Global Partnership on the Information Disclosure on Beneficial Ownership, and in August 2017 opened the access to this information in the form of open data.
Open data is covered within the legislation about freedom of information, entrenched in Articles 15 (prohibition of censorship) and 34 (right to access to information) of the Constitution of Ukraine, along with laws on information and on access to public information.
According to Law No. 2939 “On Access to Public Information”, national and local authorities are obliged to publish accurate, exact and complete information, as stated in Article 14, and are required to disclose different categories of information as listed in Article 15, including: accessible information about the structure, mission, functions, budget of the organisation, laws that regulate their work, decision-making process, list of the mechanisms through which citizens can advocate their interests, reports about the sessions and the institutional work, action plans, etc.
In line with the principle of transparency and publicity of the budget process (Article 7 of the Budget Code), on 11 February 2015, the Parliament adopted the Law No. 183-VIII “On Open Use of Public Funds”. According to the Law, local authorities must use the e-data website to publish information about the use of public funds.
Both the Ombudsman’s Office and civil society control the implementation of these regulations. If public authorities do not disclose the information required by law, they will initiate an appeal to the higher authority or court. Those persons whose rights and legal interests to access public information were violated receive a compensation for material and moral damages (Article 24.2 of the Law No. 2939 “On Access to Public Information”).
Furthermore, the Decree No. 835 of the Cabinet of Ministers of Ukraine of 21 October 2015 introduced regulations on data sets to be published in the form of open data. Through periodic monitoring of the publication and update of data sets on the official websites of state bodies and on the Unified State Web Portal of Open Data (data.gov.ua) and with the involvement of civil society organisations. Regulations have substantially reduced the workload relating to requests for public information and made the work of specialists more efficient.
Since March 2017, the Open Data Roadmap for Ukraine[i] provides an extensive list of practical recommendations that public authorities can follow in order to comply with international standards on open data. All these recommendations are based on six major principles: data should be open by default; timely and comprehensive; accessible and usable; comparable and interoperable; for improved governance and citizen engagement; and for inclusive development and innovation.
Within the project ‘Transparent cities’, the NGO Transparency International Ukraine provides guidelines for the 100 largest cities in Ukraine, based on individual assessments for each city.[ii] The guidelines for open data suggest publishing on the official website announcements, schedules, agenda and protocols of the official meetings of the city council and the mayor; maintaining an archive of said information corresponding to the past two years; publishing the contact details of public authorities’ deputies and their assistants; and publishing legislation and decision-making projects on the website 20 days ahead of the meeting.
[i] The Roadmap was developed by the State Agency for E-Governance within the USAID- and UK aid-funded ‘Transparency and Accountability in Public Administration and Services’ project, implemented in partnership with the Eurasia Foundation and the East Europe Foundation.
[ii] The project is implemented by TI Ukraine, TI Slovakia and the Institute of Political Education of Ukraine, with the support of the United Nations Democracy Fund.
The project ‘Local initiatives on ethical governance and transparency’,[i] implemented in Netechyntsi village, provides an example of how small communities can implement open data provisions of the legislation and develop a website for their village council. In addition to the website, two open-access laptops free of use are available in the public library, thereby giving people the opportunity to control and influence the work of executive committee by monitoring the project decisions and other access to information.
In February 2020, Transparency International Ukraine released the results of the study on municipal transparency involving the 100 largest cities of Ukraine in 2019. For the first time, two municipalities shared the first spot: Drohobych and Pokrov. The top five also included Ternopil (76.0), Mariupol (74.6) and Vinnytsia (74.2).[ii]
The publication Examples of good practices of municipal transparency developed by Transparency International Ukraine contains ideas and instruments to increase the degree of openness in Ukrainian cities. The purpose of featuring such examples is to help local authorities adapt successful experiences of other municipalities to their own structures. The collection contains 86 transparency indicators, each of which contains examples of best practices and a link to the site of the relevant city council.
[i] The project was supported by the Congress of Local and Regional Authorities of the Council of Europe, as part of the thematic programme ‘Strengthening institutional frameworks for local governance’, within the framework of the Council of Europe / European Union Partnership for Good Governance (2015-2017) in the Eastern Partnership countries.
[ii] Transparency International Ukraine released the study of municipal transparency.
Public procurement refers to the process by which public authorities, including local authorities, purchase work, goods or services. It is an essential part of public service provision for local and regional authorities; efficient and cost-effective procurement is key to good governance.
As procurement involves a large proportion of public expenditure and the transfer of public resources to the private sector or non-profit organisations, it is particularly vulnerable to corruption. Public authorities should deploy new technologies to increase transparency over public procurement and encourage new economic actors to enter bidding processes in the confidence that free and fair competition is applied. By posting all tenders on a common online platform, the occurrence of unpublished tenders and direct awards will be minimised. Use of open contracting and open bidding solutions also allows greater scrutiny of the process, further reducing the scope for corrupt practices. Open contracting systems include a preventive effect, because officials will refrain from manipulating the contracting process if they know that comprehensive disclosure of the bidding and contracting processes will be revealed.
Local authorities should ensure that there is a comprehensive system in place to monitor compliance with public procurement legislation, and that there is a responsive mechanism for reviewing appeals and complaints, including prompt and comprehensive replies. Authorities should also monitor contract implementation, in particular time extensions and cost increases, to ensure that the benefits in terms of value for money and quality of delivery are not compromised during contract implementation.
The following international conventions and standards relate to public procurement:
Created in 2016, the ProZorro (prozorro.gov.ua) e-procurement system has significantly enhanced transparency in public procurement and contributes to fighting corruption at all levels of governance. Owing to the high level of transparency of the ProZorro platform, all users are able to detect procurement procedures that may entail a violation of law, as provided for in Article 9 of the Law No. 922-VIII “On Public Procurement” which concerns civic oversight. However, improvements to the public procurement system are still needed. In particular, mechanisms for citizens requests for investigation and information on actual payments per procurement agreement, in order to further increase transparency indecision-making.
In 2015, the Ukrainian Parliament adopted the Law “On Public Procurement”. Since then, this law has facilitated the creation of an e-procurement system, bringing e-democracy and e-governance to a new level. Open procedures and competitive selection now take place exclusively on the electronic platform ProZorro, which has boosted transparency and has significantly improved Ukraine’s position in the international E-Government Development Index scale. Similarly, the DoZorro portal (dozorro.org) creates a database of real assessments of purchasers, suppliers and individual tenders that allows to monitor public procurement effectively.
Ukraine continued on its path to reform by becoming a fully-fledged member of the World Trade Organization’s Agreement on Government Procurement in 2016 and by adopting the Resolution No. 175 of the Cabinet of Ministers “On the Public Procurement Reform Strategy and Action Plan (Roadmap)”, which addresses the development of the public procurement system from 2016 to 2022 in compliance with the provisions of the “EU – Ukraine Association Agreement”.
In September 2019, the Parliament of Ukraine adopted a number of amendments to the Law “On Public Procurement” with the aim of complying the national legislation with the Directives 2014/24/EU and 2014/25/EU of the European Parliament and of the Council on public procurement. On 19 April 2020, those amendments came into force. The amendments which have been introduced are generally deemed positive, as they aim to increase the level of control and transparency of the procurement procedure and eliminate a number of existing critical issues that were widely abused and taken advantage of. The law introduces a number of significant changes to public procurement procedures:
The new law also introduced measures for identifying price dumping more easily, adopting non-price criteria for assessing proposals, enabling to organise more professional procurement due to the transition from “tender committees” to “authorised procurement officials”.
Moreover, according to Article 62 of the Law “On Prevention of Corruption”, legal entities participating in public procurement procedures in which the expected value equals or exceeds UAH 20 million must have established and authorised anti-corruption programmes (that is: a set of rules, standards and procedures for detecting, combating and preventing corruption within a legal entity’s list of activities).
Public procurement efficiency is also enhanced by the Law ”On Electronic Documents and Electronic Document Management”, “On Electronic Trust Services”, “On Access to Public Information”, “On the Antimonopoly Committee of Ukraine” and a number of by-laws enforcing transparency and efficiency in the public procurement system in Ukraine.
To respond to the challenges caused by COVID-19 and the need to ensure the procurement of goods and services, the Ukrainian Parliament adopted the Law “On Amendments to Some Legislative Acts of Ukraine Aimed at Preventing the Occurrence and Spread of Coronavirus Disease (COVID-19)” which amends the Law “On Public Procurement” to ease the procurement process for goods, works or services necessary to prevent the spread of the COVID-19.
The Ministry of Economic Development and Trade of Ukraine (MEDT), in line with the Law “On Public Procurement”, created a special Information Resource of the Authorised Body in the field of public procurement. Its aim is to disseminate information on the application of public procurement legislation, as well as on the effective implementation of the state procurement policy by the Authorised Body.
The ProZorro Infobox (infobox.prozorro.org), a knowledge centre on public procurement, provides information for customers and suppliers about all the innovations in the ProZorro system and get answers to all their questions. It also shares methodological materials, explanatory notes, online training courses and a forum for discussing public procurement issues among customers, suppliers, and representatives of the ProZorro team and the MEDT.
In 2019, the MEDT developed the “Guidelines on ethical conduct in public procurement” for public authorities, local self-governments and other organisations engaged in public procurement. These Guidelines are not a legally binding document, yet it provides important recommendations for public authorities and local self-government to ensure accountability and transparency. Specific sections of the Guidelines relate to openness and transparency during all stages of public procurement, non-discrimination and prevention of corruption.
During the period March – June 2020, there has been almost 40 thousand purchases in Ukraine through the ProZorro e-procurement system, a majority of which related to medical equipment, pharmaceutical products, and emergency and security equipment to combat the COVID-19 pandemic. The number of purchases is growing rapidly. The degree of transparency in public procurement was substantially enhanced with the introduction of a business intelligence tool (covid.dozorro.org) which enables the search and monitoring of information concerning COVID-19 procurement conducted by national and local authorities.
External audit is the regular, independent scrutiny of accounts and financial information to ensure that public money is used appropriately and effectively. External audits are undertaken in accordance with relevant laws and rules to support those external to government to hold it to account. As well as audit of the financial statements of local budget institutions, external audit can look beyond finances to assessing the performance of government against its own objectives, or in providing programmes and services.
In the course of sweeping decentralisation reforms, local budgets grow significantly, but the external audit of local public authorities remains underregulated. As a result, there is an increasing number of educational initiatives that empower citizens and teach local authorities to properly develop, implement and control public budgets.
The Chapter V of the Budget Code of Ukraine sets rules on the control and audit of public finances. In line with the Code’s Article 110 and Article 15 of the Law No. 576 “On Accounting Chamber”, the Accounting Chamber of Ukraine (ACU) provides financial audit of the money transferred between the state and local budgets. The ACU defines the equity, lawfulness and effectiveness of such transfers between administrators and recipients of public funds.
While the ACU acts on behalf of the Parliament, the State Audit Service of Ukraine, the State Treasury of Ukraine and local finance authorities perform financial control on behalf of executive bodies (Articles 111-113 of the Budget Code). They control the compliance of local authorities with budget legislation even though the co-ordination of these institutions remains poorly regulated.
The violation of the budget legislation (all forms of violation are listed in Article 116 of the Budget Code) leads to administrative (Article 164-12 of the Administrative Code) or criminal (Articles 210-211 of the Criminal Code) liability.
As part of an assessment of fiscal risks associated with local governments, the International Monetary Fund (IMF) recommends local authorities to roll out the internal audit function to all budget entities: ”international experience suggests that seeking to strengthen the internal control framework within budgetary institutions — where managers are given greater flexibility but in an environment of robust transparency and accountability — is the best solution to promoting good public financial management outcomes”.
According to the IMF, the key elements of a strong and modern internal control regime are:
Open local budgets and the engagement of civil society during the audit process are useful practices to overcome some of the external audit’s limitations.
An innovative example of such approach is the initiative for a comprehensive external public audit of the Okhtyrka City Council. Local public authorities and the Civic Council of Okhtyrka (Sumy region) agreed upon the following principles of the external audit:
Such initiative by local public authorities helps to draw on the skills and experience of citizens for the delivery of more effective public services.
Another example of the combination of public and state audit is given in the project ‘Effective and fair local budgets’ in Mykolaiv. The City Council closely collaborates with civil society on improving the effectiveness of the local budget, based on the results of a public audit.
Financing of political parties and election campaigns is a necessary component of the democratic process. It enables the expression of political support and competition in elections. Principles governing the financing of political parties should include fairness in the distribution of state funding, strict rules concerning the transparency and limits on the size of private donations, ceilings on campaign expenditure, full transparency of funding and expenditure, independent election commissions, independent audit of campaign finance, and the consistent imposition of proportionate sanctions on candidates and political parties that violate the rules (such as fines or a reduction in state contributions to future election campaigns).
Clear rules and transparent reporting of political campaign financing and expenditures are essential to sustain trust in political candidates, political parties and government institutions. An imbalance in funding of political parties may result in an unfair advantage, handing undue influence to powerful narrow interests, running the risk that policies will be "captured" by narrow private interests, serving their goals over the public interest.
Mechanisms and rules on limits on party political financing, and on state financing of political campaigns, should be designed in a way that provides a level playing field for the different political candidates and parties competing in elections and serves to preserve the political forces' independence from financial supporters.
The following international conventions and standards relate to the financing of political parties:
“The right of citizens to participate in the conduct of public affairs”, including at the local level, is explicit in the European Charter of Local Self-Government, and the Additional Protocol to which states that “the right to participate in the affairs of a local authority denotes the right to seek to determine or to influence the exercise of a local authority's powers and responsibilities”. When local authorities consult with, and engage, citizens on the design of, and evaluation of, public services, they pave the way for better policy outcomes and also for greater mutual trust between citizens and government.
Citizen participation involves outreach to a range of local stakeholders, such as civil society activists, journalists, members of academia, business representatives, local communities, and active citizens. It is important that it is inclusive, taking into consideration the views of the wider public, expert stakeholders, and representative groups, including the vulnerable and marginalised. Moreover, stakeholder engagement must include outreach to those whose lives and interests will be affected by the implementation of the decisions under consideration. To ensure that such stakeholders are identified, public consultations should be launched before a commitment to action has been made or before a draft decision has been tabled. A more open consultative process first invites stakeholders to discuss and identify the problems, challenges and opportunities, then examines the different policy scenarios, before any decisions are drafted.
Participatory mechanisms can be grouped in the following categories that reflect different levels of engagement:
– informing the public about local priorities, government programmes and plans;
– holding consultations with the public and/or particular groups of people regarding public policies and collecting their experience or expertise;
– collaborating with the public and/or particular groups of people to develop solutions to local problems (including co-creation processes such as in the formulation of Open Government Partnership (OGP) Action Plan commitments);
– engaging local communities in decision-making processes through deliberative processes, voting (such as participatory budgeting and referenda), and other decision-making tools.
According to the Additional Protocol, “the law shall provide means of facilitating the exercise” of the right of citizens to participate. In order to ensure that the above-mentioned forms of participation are genuine engagement rather than token exercises, the consultation process around the formation of new policies and legislation needs to be backed up by laws, regulations and guidelines, and also by strong political will.
Inclusive policymaking must at the same time be effective, and the public should be well informed about their rights, opportunities and ways they can participate in local decision-making. The policymaking processes need to be clearly stated well in advance to enable citizens and stakeholder groups to prepare their submissions and interventions. Timeframes with clear entry-points for citizen engagement need to be published to ensure that citizen participation is a meaningful exercise, and the local authorities should provide feedback to those who make policy proposals or recommendations. The local authority should ensure that the viewpoints and positions of stakeholders are properly reflected and considered when adopting policies, and feedback should provide clearly stated reasons for the decisions to adopt proposals, or not to adopt them. This inclusive approach ensures that policies are relevant, evidence-based, cater to intersectional needs, and are responsive to public demands.
Local authorities also need to employ officials trained in managing public consultations and ensuring that the feedback to citizens is prompt and comprehensive.
Such inclusive approaches ensure that local authorities make better and more relevant decisions that reflect public interests and are well understood by all citizens. In tandem, local communities can develop a sustained capacity to voice their concerns, design solutions and monitor their proper implementation, resulting in improved public trust towards local service delivery.
Open policy making is a broad term describing policy development that is transparent and participatory. It describes a way of making policy and decisions that draw on the latest interactive tools that open up policymaking to different stakeholders in an increasingly digital world. There is no one-way to do open policy making: different policy decisions will need different approaches.
Open policy making approaches enable governments to reach more informed and better designed policy outcomes through collaborative approaches that draw on a variety of perspectives and expertise. Different digital tools and analytical techniques are deployed so that policy is more evidence-based and data-driven. Models of engagement can include a representative citizens panel, crowdsourcing of policy ideas, or the use of collective intelligence to draw on the knowledge and expertise of a diverse public.
By the use of open data and citizen engagement, more informed, inclusive decisions can be reached, and more innovation applied in both the policymaking process and the resulting policy decisions. To maximise the possible gains of open policy making, local authorities could set up an open policy making team that publishes the data used to inform and shape policy decisions. and trains public officials in working with data to inform policymaking.
Although there are no specific open policy making standards, the following are useful points of reference:
Open policymaking became a regular practice in Ukraine after the 2014 Revolution. Every governmental institution is legally obliged to consult legislative initiatives with civil society. Up until 1 July 2017, 21 regional administrations had created civil councils and most city councils have civic advisory boards. Additionally, executive authorities place their legislative initiatives under development on the Government’s website ‘Civil society and government’, (civic.kmu.gov.ua) where any citizen can discuss them.
E-governance and e-democracy massively boost open policymaking in Ukraine. While in 2015 79% of Ukrainians had never heard the term “electronic democracy” and only 14% understood its meaning, the situation significantly changed within two years. Multiple electronic platforms, such as Open City (opencity.e-dem.ua) and Rozumne misto (rozumnemisto.org), brought open policy-making to the fore by providing diverse tools for interaction between citizens and public authorities.
Several laws in Ukraine contain provisions on open policymaking, such as the Law No. 2862-VI “On Social Dialogue”, the Law No. 1160 “On Principles of Public Regulatory Policy of Economic Activity”, and the Cabinet of Ministers Resolution No. 996 “On Ensuring Public Participation in the Formulation and Implementation of Public Policy”. Furthermore, a more relevant draft law “On public consultations” is currently under development.
The above Resolution No. 996 regulates general procedures for public consultations, policy expertise and the involvement of stakeholders in advisory bodies. The resolution is not compulsory for local governments which means they can choose whether or not to transpose such regulations into their by-laws.
During the law-drafting process, local public authorities must consider relevant expertise especially in three fields: regulatory impact assessment, urban development and environment expertise. For discussions open to the public, local executive bodies are obliged to publish draft acts on their websites. Moreover, local public authorities approve annual plans for public consultations, considering proposals from civil society organisations. In a case of misconduct by public authorities, citizens can submit complaints to the Ombudsman’s office or the Cabinet of Ministers. Those authorities that fail to comply with legal provisions and hinder open policymaking are subject to administrative liability.
Within the project ‘Transparent cities’, the NGO Transparency International Ukraine provides guidelines for the 100 largest cities in Ukraine, based off individual assessments provided for each city.[i] The guidelines for open policymaking encourage city councils to allow citizens to participate in their consultation and commission meetings; and to publish draft bills 20 working days before being discussed and the full agendas of the sessions 10 days ahead of the plenary session.
The manual Tools of e-democracy in Ukrainian cities provides an overview of the available electronic tools which local public authorities can use to enhance their open policymaking process. The platform Open City provides cities with tools that enable citizens to report local problems. In addition, the advantage of the e-platform Rozumne misto is its wide array of instruments aimed at fostering e-participation, which can be flexibly adapted to each city’s demands and requirements. Diverse e-services include tools for open budgeting, public procurement, surveys, petitions, etc. The implementation of such e-participation tools improves the communication between public authorities and citizens and provides mechanisms for e-democracy.
The “Civic Activist’s Handbook” developed by experts of the USAID project “Citizens in action” in collaboration with the Ukrainian Centre for Independent Political Research provides recommendations and an overview of mechanisms to involve citizens in open policymaking. For instance, it provides model regulations for local self-governance that allow the implementation of best practices of local democracy in line with European standards of good governance.
[i] The project is implemented by TI Ukraine, TI Slovakia and the Institute of Political Education of Ukraine, with support of the United Nations Democracy Fund.
One of the initiatives carried out in Netechyntsi (Khmelnitsky region) as part of the project ‘Local initiatives on ethical governance and transparency’[i] provides a clear example of good practice in initiating an open policy-making process at village council level. The first outcome of the project was the Code of Ethics, adopted after public discussion. The process of active public consultations provided the community with an experience that can be shared with neighbouring villages. The second outcome of the project was the creation of the Village Council’s website, which improves residents’ access to information on the Council’s work. The website serves as a source of information for the Council’s decisions and provides an electronic form for public appeals and information requests.
Large cities are increasingly implementing e-democracy tools for successful open policymaking. For instance, Lutsk (Volyn region) was the first city to introduce the platform ‘Open City’ in 2013 to solve local problems jointly with citizens.
[i] The project was supported by the Congress of Local and Regional Authorities of the Council of Europe as part of the thematic programme ‘Strengthening institutional frameworks for local governance’, within the framework of the Council of Europe / European Union Partnership for Good Governance (2015-2017) in the Eastern Partnership countries.
One of the crowdsourcing forms of citizen participation, participatory budgeting invites citizens and community groups to propose new initiatives or improvements to public services that should be funded by the local authority. Different models include voting by citizens, often online, on different projects. It provides a way for community members to have a direct say in how public money should be spent. It creates opportunities for engaging, educating, and empowering citizens. It can also promote transparency, which in turn can help reduce inefficiency and corruption.
Participatory budgeting began in Porto Alegre, Brazil, in the late 1980s and has spread worldwide. To ensure that participatory budgeting is inclusive and reaches out to different groups, including minority groups and the disadvantaged, both online and in-person information events need to be organised, and support provided to citizens and different community groups and stakeholders in how to prepare a proposal for consideration. The introduction of gender-sensitive participatory budgeting can increase outreach and accessibility and can be planned in close co-operation with local civic groups with a focus on inclusion.
Although there are no specific standards for implementing participatory budgeting, the following serve as important reference materials:
In 2015 and for the first time in Ukraine, Chernihiv, Cherkasy and Poltava introduced participatory budgeting. More than 230 cities and amalgamated communities are now implementing this process of democratic deliberation and decision-making. The newest form of participatory budgeting suggests that city councils allocate a certain amount of the local budget to citizens. Other ways of citizen participation in budget planning processes include open plenary sessions on budgeting, citizen written suggestions and requests on development and use of the local budget, public monitoring and effectiveness assessment of budget spending.
There is no specific legal regulation for participatory budgeting. The Law No. 280/97-VR “On Local Self-government” allows citizens to arrange public hearings where they can discuss urgent issues and submit their propositions to public authorities (Article 13). Article 9 of the said Law allows citizens to submit their own initiatives to the city council. Article 26, paragraph 20, states that, at plenary sessions of a city, town or village council, the council can provide self-organised citizens with specific powers of self-governance and transfer funds for the realisation of their initiatives. In practice, each city, town or village that introduces participatory budgeting provides the necessary legal regulations for the subsequent implementation of projects.
The Handbook “11 honest ways to influence local budget” provides tools for citizen participation in a local authority’s budgeting process. Each tool includes practical guidance for its implementation and the relevant legal provisions.
The analytical report Participatory budgeting provides recommendations for the nine stages of participatory budgeting:
The guidelines for the implementation of participatory budgeting in the city of Sambir can be useful for other pilot initiatives in Ukrainian cities. The recommendations follow a problem-solving strategy:
Energodar City Council has been implementing participatory budgeting since 2018. City Council approved UAH 10 million for citizen initiatives and projects in 2020, which makes it the most remarkable example in the Ukrainian context in terms of money spent per citizen (Energodar has 54 000 inhabitants).
Another example is the amalgamated community of Vinnytsia, which is the first Ukrainian community to adopt a School Participatory Budgeting in 2019. UAH 1 million was allocated for the implementation of 11 winning school projects aiming to strengthen the active engagement of children and teenagers (10 to 18 years old) in the community. In the same vein, the Poltava Regional Council implemented a school safety programme at regional level to introduce a Participatory Budget at school level. More than 100 schools took part in the preparation and submission of projects, and 34 projects were chosen for implementation in 2021.
With the support of the ‘Local Initiatives on Ethical Governance and Transparency’ scheme,[i] the town of Nemishaieve (Kyiv region) implemented participatory budgeting. The Town Council allocated UAH 200,000 to the call for proposals “Participatory Budget”. The preparation of the applications was accompanied by training courses on intergenerational communication and on writing project proposals. These served as a basis for the development of citizens’ own initiatives to solve urgent town problems with funding from the town’s budget. The competition committee, which included representatives of the Youth Parliament, the Council of Elders, activists and experts, reviewed all proposals, and the community selected seven projects, which were implemented by the end of 2017.
Such examples of participatory budgeting allow for local authorities to better identify and address needs and problems that are most important to citizens by allowing them to voice their concerns and suggest feasible solutions in the format of project proposals. Moreover, the citizens are becoming increasingly engaged in the administration of public funds, thus developing a sense of ownership and responsibility. In the end, the dialogue between citizens and local authorities during the implementation of participatory budgeting promotes trust and citizen participation.
[i] The initiative was supported by the Congress of Local and Regional Authorities of the Council of Europe as part of the thematic programme ‘Strengthening institutional frameworks for local governance’, within the framework of the Council of Europe / European Union Partnership for Good Governance (2015-2017) in the Eastern Partnership countries.
Public consultation is a formal, often legally required, process for citizens and other stakeholders to give their views at key stages of the policy process. It can be both online and offline, or a mixture of both. Its main goals are to improve efficiency, transparency and public involvement in important decisions. Done in a timely and effective way, public consultation can increase the quality of decision making, improve cost-effectiveness, render more sustainable policy solutions, and generate greater public trust in decision-making.
Different forms of consultation range from informing and consulting citizens to crowdsourcing ideas for policies, deliberative debates and assemblies where citizens can develop potential policy solutions to inform decision-making, and collaboration where social enterprises, civil society organisations or expert groups either participate in the design or delivery of services.
To improve both the inclusiveness and efficiency of public consultations, each local authority should aim to have a unit that takes responsibility for co-ordinating the guidelines and procedures for implementing public consultations, and for ensuring that they are in accordance with the prevailing legislation. Such a unit could also train officers in different departments on running public consultations. In the case of smaller local authorities with more limited resources, a unit in the central government’s responsible ministry, such as a ministry of regional development, could provide such training and support on co-ordinating and updating guidance and procedures for public consultations at the local level.
Although there are no specific standards for implementing public consultations, the following are useful reference materials:
The practice of public consultations evolved significantly as part of the Ukraine’s Open Government Partnership action plans. In line with recommendations from the European Parliament Monitoring Mission to Ukraine, an online platform for public consultation of the Parliament (itd.rada.gov.ua) of Ukraine was created and duly incorporated into national legislation. The Government of Ukraine also launched a thematic web platform for communication with civil society and public consultations (kmu.gov.ua/gromadskosti). At local level, the Kyiv City Council regularly uses public consultations to involve citizens in the decision-making process.
The legal basis for public consultations is evolving. In fact, the draft Law “On public consultations”, which aims to provide a legally binding procedure for public consultations, is currently being developed.[i]
General procedures for public consultation are set out in two Regulations of the Cabinet of Ministers of Ukraine: No. 996 “On the Procedure for Consulting the General Public on Establishing and Implementing the Public Policy and No. 976 “On the Procedure of Civic Expertise of the Activities of the Executive Bodies”, with essential amendments made on both regulations by the Regulation No. 234 of 8 April 2015.
Public consultations are announced and conducted by units responsible for drafting acts. They can take place in the form of public discussions, e-consultations and surveys, as indicated in paragraph 11 of the Regulation No. 996. The main bodies involved in public consultation with regional executive authorities are bodies of local self-government and civil councils. Paragraph 12 of the same regulation stipulates that regional administrations are obliged to conduct public consultations on a number of issues and to take the propositions into consideration.
Public consultations, which result in the detailed territorial zoning and general plans or amendments thereto, are held in accordance with the Law "On Regulation of Urban Development". According to the Law, drafts urban-planning documentation at local level are subject to public consultation: general plans of settlements, zoning plans of territories, detailed plans of territories.
[i] The process of drafting the Law on Public Consultations, which is underway in Ukraine, is regarded as an example of civil society engagement in policy-making. For further details, see here.
Based on the Council of Europe analysis of civil participation in decision making, it is recommended that local public authorities conduct public consultations on a regular basis in the form of online consultations, expert working groups and public hearings, in order to give citizens, civil society organisations, and other stakeholders a sense of ownership in decision making.[i] Public authorities have to ensure that public consultations participants have at least 30 days to provide their comments at each stage of the review process. As a result, public consultations also enhance impact assessment exercises, and improve the quality and sustainability of the resulting decisions and laws.
Experts of the USAID project “Citizens in action”, in collaboration with the Ukrainian Centre for Independent Political Research, developed model regulations for local self-governance that allow the implementation of best practices of local democracy in line with European standards of good governance, including the model regulation on public consultation.
[i] This recommendation is based on the findings of the study “Civil Participation in Decision Making in the Eastern Partnership Countries (Part Two: Practice and Implementation)” by Lovitt J., Council of Europe, April 2017.
In Lviv municipality, different local issues that fall within the authority of local self-government bodies can be subject to public hearings. The organisation of such public hearings is defined by the Regulations on the Procedure for Holding Public Hearings in the City of Lviv, which is an annex to the Charter of the Territorial Community of the City of Lviv. The secretariat of the Lviv City Council determines jointly with the initiator the date of the public hearing and the relevant announcement is published on the Lviv City Council official website within 5 working days from the date of the reception of the request.
The project ‘Establishment of the Community Initiative Support Office in Slavutych’[i] presents another example of good practice for the development of public consultation mechanisms between local authorities and citizens with the aim of implementing ethical norms and encourage citizen participation. The Community Initiative Support Office is an open platform for scheduled and unscheduled meetings of local authorities (government employees, town councillors, etc.) and civil society (non-governmental organisations, local activists, etc.). The Office contributes to shaping innovative ideas for improving the life of the community and making constructive decisions with regard to the implementation of ethical standards. Moreover, it opens up additional possibilities for enhancing citizen participation and increasing public accountability.
The Mariupol City Council adopted a procedure for holding public hearings. The procedure regulates the initiation, preparation and organisation of public hearings – including the recording of the results – as follows:
The decision adopted following a public hearing is to be approved by simple voting majority and discussed at the plenary meeting of the City Council or its executive committee with the mandatory participation of the initiators of the public hearing.
[i] This initiative was supported by the Congress of Local and Regional Authorities of the Council of Europe as part of the thematic programme ‘Strengthening institutional frameworks for local governance’, within the framework of the Council of Europe / European Union Partnership for Good Governance (2015-2017) in the Eastern Partnership countries.
Public petitions enable citizens to raise issues with public authorities. The number of signatures collected can indicate the level of support for the issues raised. They aim either to raise the profile of the issue or to demand that specific actions be taken. Petitions are often inspired by civil society activity, but they are increasingly submitted through official, often online, platforms whereby petitions with a defined number of signatures will receive an official response.
It is important that the official response is provided promptly, and that clear and well-argued reasons are provided for the decisions taken or not taken in response to a public petition.
For public petitions to become a tool that resonates with the wider public, local authorities and civil society organisations should raise awareness of the nature of petitions and the procedures for gathering signatures and submissions of the petitions in their municipalities. Clarity should also be given on the status of electronic signatures to ensure that there is full transparency about the conditions that a public petition must satisfy to receive an official response.
The following international conventions and standards relate to public petitions:
Public petitions fall under the right of citizens to address public authorities, enshrined in Article 40 of the Constitution of Ukraine. Since July 2015, it is possible to submit electronic petitions, which has significantly boosted the use of the public petitions mechanism among citizens. As of 2018, electronic petitions became the most widespread instrument of e-democracy in Ukrainian cities.
The e-democracy portal E-DEM (petition.e-dem.ua) constitutes a single system for local petitions. The purpose of the system is to help local governments by providing them with an already-made and unified online tool and a package of draft local regulations to ensure compliance with the Law No. 577-VIII “On Amendments to the Law of Ukraine ‘On Citizens’ Appeals’ Concerning Electronic Appeals and Electronic Petitions”. More than 200 local governments are already using this platform.
In addition, public petitions requiring the attention of the President of Ukraine can also be submitted online through the specific Electronic Petitions portal of the President of Ukraine (petition.president.gov.ua). This resource also allows to monitor the status of all petitions sent to the President of Ukraine.
The Law No. 393 “On Citizens’ Appeal” defines and regulates the procedures for public petitions. Electronic petition is regarded as a special form of collective citizens’ appeal (Article 23-1). Local authorities are legally obliged to provide the means for citizens to participate in public petitions. Access to the e-petition systems must be free of charge and protected against the automatic completion of forms.
The number of required signatures in any petition addressed to local authorities depends on the size of the community. The numbers vary between 50 signatures for less than 1 000 residents up to 1 000 signatures for over 1 million residents, and they are established by the statute of the community. If a petition reaches the necessary number of signatures, the city, town or village council needs to convene a plenary session to review the petition as stipulated by the Law No. 280/97-VR “On Local Self-Government” in its Article 46, paragraph 8.
The procedure of consideration of electronic petitions addressed to the President of Ukraine is regulated by the Decree of the President of Ukraine No. 523 / 2015.
The Association for Community Self-organisation Assistance of Ukraine provides the following recommendations to local public authorities:
Kyiv City Council developed effective mechanisms for the successful introduction and implementation of e-petitions. From October 2015 to September 2020, the City Council supported 44 petitions. When a public petition is successful, the mayor appoints a person responsible for its implementation. Together with the petition’s author, they prepare a roadmap for the implementation of the petition and provide monthly reports about the process. On the website for e-petitions of the Kyiv City Council, the entire chronology of the process of implementation of a petition is published (including information on who is responsible for certain assignments, what decisions have been taken, etc.). Such transparent communication dissuades citizens from maliciously discrediting public petitions processes, builds trust and fosters citizen participation in local affairs.
Local referenda, which are widespread in Council of Europe member States, provide a mechanism for local authorities to sound out the citizens’ will on concrete issues that directly affect their everyday lives or for citizens to propose an initiative that they would like to see implemented, or even to block a planned decision.
When initiated by citizens or groups of stakeholders, a referendum might form part of a campaign against a perceived harmful impact on their livelihoods or the natural environment, such as a plan for a new industrial park, a tunnel to re-route cars under a river or some other urban development.
Where there is both legislation providing for local referenda, and guidelines on how to hold referenda, there is usually a minimum percentage of the eligible voting population whose signatures are required to initiate a referendum. In some cases, the mayor or elected council can also decide to formulate a question for a local referendum. Depending on the legislative framework, the referenda may be binding on the local government or consultative, where the final decision rests with the elected council.
It is important that the legislation and procedures are clear, so that citizens know the framework within which the results of a referendum will be acted upon, and what response is required from the executive or elected council of the local authority. As with public petitions, it is important to raise awareness of the procedures for gathering signatures and the status of electronic signatures to ensure that there is full transparency about the conditions that need to be met before a referendum will take place. Transparency on political party financing should also be applied to the funding of a referendum campaign, including ceilings on expenditure, and an independent audit of funding and expenditure.
The following international conventions and standards relate to local referenda:
In the absence of ethics and public accountability, corruption and malpractice are allowed to thrive, which undermines the foundations of a peaceful, prosperous and just society.
Corruption is a major challenge to democracy and the rule of law. It results in decisions and resource allocation that do not reflect the interests of the public and concentrates political power in the hands of the few. It in turn causes political leaders and institutions to lose legitimacy and public trust, which reduces their ability to govern.
Corruption poses a great threat to sustainable development, increasing poverty and inequality. Consequently, strengthening local self-government and their active participation in the fight against corruption is one of the essential preconditions for democratic development. Corruption at the local level is a specific phenomenon and requires a specific approach tailored to municipalities.
Corruption also causes local and regional authorities to be inefficient and ineffective in exercising their duties. It results in decisions being made not on the basis of what is in the interests of society at large, but what is in the self-interest of decision-makers and their associates. It leads to public money being misspent, with contracts being awarded to inferior providers and budgets being misallocated. At its worst, it enables public officials to misappropriate money and resources, using their position to get rich to the cost of those they have a duty to serve.
One of the major challenges for societies worldwide is the development of accountable and transparent systems that provide effective public services. Because of their proximity to the public, local governments are well positioned to deal with this challenge and to fight and prevent corruption at local level.
Under the current trend of decentralisation, local authorities are given not only resources, but also the discretionary power to use those resources. Thus, local governments have the potential to either reduce corruption and improve public services at the local level or, conversely, increase corruption and worsen the quality of service delivery.
Corruption can also result in public officials being appointed on the basis of favouritism rather than merit, meaning that local and regional authorities do not have access to the brightest and best talent. This in turn creates a fertile environment for further corruption and reduces even more the efficiency and effectiveness of the administration.
Inefficient and ineffective organisations, staffed by individuals who gained their positions on the basis of criteria other than merit, result in poor-quality public services and infrastructure, thereby eroding public trust and the legitimacy of public institutions. More importantly, however, they result in significant human costs, including poverty, deaths, illness, and restricted life chances.
Finally, corruption harms economic development. It leads to public money being directed to uncompetitive businesses, rather than those that offer more innovative or cheaper products and services. Uncompetitive markets, coupled with the negative impact of corruption on the quality of local public services and infrastructure, means that businesses do not have a solid foundation (of staff, security, investment, etc.) on which to build. In the end, this may cause private and international investors to avoid investing in an area.
Bribery is the promise, offer, acceptance or solicitation of a personal advantage (e.g. gift, loan, reward, favour, etc.) in exchange for an unethical or illegal action. Bribery results in decisions not being taken in the public interest, which reduces public trust in institutions and leads to poor public services.
The following international conventions and standards relate to bribery:
International and national surveys on the perception and experience of corruption in Ukraine indicate that bribery is widespread in the country. In 2017, 25.5% of Ukrainians claimed to have paid a bribe over the past year. Those who paid a bribe mainly did it to access public health services (46.3%), higher education institutions (22.5%) and local public authorities (13.6%). At the same time, 29% of Ukrainians replied that they refuse to pay bribes.
Another survey on corruption perception in the private sector shows that 67% of business representatives perceive bribery as the most widespread form of corruption in Ukraine.
Although the perception of bribery is very high, the term “bribery” was eliminated from the Ukrainian law and replaced with the notion of “unjustified benefits” (nepravomirna vyhoda). The Law No. 1700-VII “On Prevention of Corruption” of 14 October 2014 provides the following definition: «Unjustified benefit means money or other property, preferences, advantages, services, non-monetary assets, and any other benefits that are being illicitly promised, offered, delivered, or received by the person, who is authorized to perform public or local self-government functions». This definition expands bribery to the non-monetary forms of received benefit.
In line with the Article 368 of the Criminal Code of Ukraine, receiving or providing unjustified benefits can be punished by a fine, community work, deprivation of the right to hold certain office positions or engage in certain activities, or imprisonment, depending on the degree of the crime.
Investigations of the National Anti-Corruption Bureau of Ukraine address several cases of bribery. For instance, in October 2016, the head of a village council faced charges of illegally demanding and partially receiving an unjustified benefit of approximately US$ 100,000 for granting the exploitation of 600 ha of land to an entrepreneur. The NABU finished the investigation, and the Special Anti-Corruption Prosecutor prepared an indictment and brought the case to the Zarichnyi regional court of Sumy, which is yet to reach a final verdict.
On 17 August 2016, the Malynsk raion court of Zhytomyr region passed a judgement on a case involving the head of a regional council and the head of a state administration. They were accused of extorting and receiving an unjustified benefit in the amount of 40 000 Ukrainian hryvnia (UAH) from a farmer who wanted to rent a land for agricultural purposes. Both defendants were sentenced to two and half years of imprisonment. However, on 13 November 2017, the Zhytomyr regional court of appeal overturned the initial verdict and initiated a new criminal procedure under original jurisdiction.
A conflict of interest is where an individual is in a position to derive personal benefits from the actions or decisions they take in an official capacity. Conflicts of interest – either if they are actual, perceived or potential – result in decisions that are, or are considered to be, unfair and self-interested. This reduces public trust in institutions and results in worse outcomes for the public.
Conflict of interest is also covered by the following international standards and guidelines:
Local authorities’ exposure to conflict of interest in Ukraine is considered to be very high and widespread because, unlike for Members of the Parliament, local councillors can combine their representative functions with other employment or entrepreneurship. At the same time, a survey of local authorities conducted in Cherkasy region in 2015 showed that only 15% of staff and local councillors fully understood the meaning of conflict of interest and its regulation.
The Law “On Prevention of Corruption” differentiates between the potential (Article 1.8) and the real conflict of interest (Article 1.12). While the former indicates the potential for the private interest of the officials to affect impartiality in decision-making, the latter indicates that a contradiction between the private interest of the person and public functions as a civil servant or representative has already occurred. The violation of the law only occurs in decision-making when a conflict of interest has not been properly reported and resolved.
Since the definition of private interest is not limited to financial or material interests, such corruption risks as nepotism and patronage (provided below) are considered as subtypes of conflict of interest and they are regulated by the same legislation.
Prevention and regulation mechanisms on conflicts of interest are provided in the Chapter V (Articles 28-36) of the Law “On Prevention of Corruption”, in Article 59-1 of the Law “On Local Self-Governance in Ukraine”, and in the practical manual of the National Agency on Corruption Prevention (NACP). The two main steps for prevention are: first, a decision-maker must report a conflict of interest, and second, abstain from taking decisions on issues under conflict of interest.
At local level, the special permanent commissions of local councils (Article 59-1 of the Law “On Local Self-Governance in Ukraine”) are responsible for consulting, monitoring and controlling the prevention and regulation of conflict of interests.
When a real conflict of interest is revealed, the NACP exhorts action from the authority involved. If the conflict of interest is not resolved within 10 days, the NACP reports an administrative violation.
According to the Article 172.7 of the Administrative Code of Ukraine, in the case of a real conflict of interest, a fine can range from 100 to 800 non-taxable minimum income, equivalent to UAH 1 700 and UAH 13 600, and the deprivation of the right to hold certain offices or engage in certain activities for one year. Information on corruption-related offences is collected in a single open database of individuals involved in corruption (corruptinfo.nazk.gov.ua), which damages the image of the perpetrator.
Conflict of interest is mostly prevalent in decisions concerning the use and ownership of land or business ownership by public officials. For instance, a member of a village council participated in voting session on a decision that allowed his son to use the land. The Berdiansk city court imposed a fine amounting to UAH 1 700 as a penalty.
Embezzlement is the illegal appropriation of money, goods or other resources by an official to whom they have been entrusted. This results in the loss of public money, which reduces the capacity of authorities to act in the interests of the public, resulting in worse services and outcomes for people. It also undermines public trust in government.
As one type of corruption, embezzlement is covered by the following international standards and guidelines:
Embezzlement is widespread in Ukraine, especially in the field of public procurement, which is one of the most corruption-prone areas in the country. For instance, the OECD Monitoring of the Istanbul Anti-Corruption Action Plan from 2015 estimated that about 75% of funds allocated for procurement had been embezzled through various schemes between 2010 and 2014, amounting roughly to UAH 150 billion.
Embezzlement falls under the category of economic crimes or crimes against property in the Criminal Code. According to the Article 191, paragraph 2, the penalty for embezzlement in public office can reach 5 years’ imprisonment or 3 years’ deprivation of the right to hold certain public offices or engage in certain activities. Depending on the embezzled amount, the penalty increases up to 12 years’ imprisonment, and 3 years’ deprivation of the right to hold certain public offices or engage in certain activities, and confiscation of property.
In April 2017, a mayor was sentenced for embezzlement. Back in 2013, he had commissioned a private firm to repair a road in the village. The mayor issued a payment transfer to the firm, even though the road was yet to be repaired. By the court’s verdict, the mayor was banned for two years’ from occupying any public offices or engaging in the work of local authorities. He was exempted from 3 years’ imprisonment and received two years’ probation instead. On 6 October 2017, the Vinnytsia regional court of appeal overturned the initial verdict and initiated a new criminal procedure under original jurisdiction.
Fraud is the use of deceit in order to gain an unfair or illegal advantage. Fraud erodes public trust in government and reduces the capacity of government to act. It often results in the loss of public money, which harms public services and the ability of governments to address the public's needs and aspirations.
As one type of corruption, fraud is covered by the following international standards and guidelines:
Nepotism is the exploitation of an official position to unfairly benefit a family member or friend (e.g. through giving a job or favour). Nepotism, and other forms of favouritism, results in local and regional authorities not having access to the brightest and best talent. This in turn creates a fertile environment for further corruption and reduces the efficiency and effectiveness of the administration.
As one type of corruption, nepotism is covered by the following international standards and guidelines:
In the 2016 Ukrainian Municipal Survey, 56% of respondents respectively indicated that nepotism is a “significant problem” and 29% identified it as “somewhat a problem”. Nepotism in Ukraine is close to the phenomenon of kumivstvo (the “godparent relationship”) or to cronyism. In the case of cronyism, the exchange of favours and privileges is based on close friendship ties.
In Ukraine, there is no specific law on nepotism. However, the Law “On Prevention of Corruption” and the Law “On Public Service” provide several indirect regulations and limitations to nepotism.
Section 27 of the Law “On Prevention of Corruption” prohibits public officials to be in direct subordination or have in direct subordination any close persons. In case such subordination occurs, an official is obliged to report and undertake measures to resolve the situation, as in the case of conflict of interest. Accordingly, the subordinated person is required to either change the position to avoid direct subordination to the close person, or to resign.
An administrative case in the Vasylivka raion court became an example of nepotism. The head of the department of culture and tourism of a raion state administration did not report her husband’s direct subordination, who was the director of the town’s Centre for Culture and Leisure. She also employed her son. Additionally, she assigned her husband a payment for his work from the raion budget. At the same time, the husband assigned a payment to his wife, since she has a position of responsibility in the abovementioned centre. On top of that, their daughter co-ordinated an administrative department of the centre. In total, the court imposed a fine in the amount of 300 non-taxable minimum incomes, equivalent to UAH 10 200. The charges were based on Article 172-7, paragraph 1 and 2 of the Administrative Code about decision making under conditions of real conflict of interests.
The misuse of administrative resources[i] during the electoral processes involves unlawful or abusive behaviour on the part of politicians and civil servants, who use human, financial, material, in natura and other immaterial resources to influence the outcome of elections, and thus undermine the fairness of the election itself.
[i] For the purpose of this etool, «administrative resources are human, financial, material, “in natura” and other immaterial resources enjoyed by both incumbents and civil servants in elections, deriving from their control over public sector staff, finances and allocations, access to public facilities as well as resources enjoyed in the form of prestige or public presence that stem from their position as elected or public officers and which may turn into political endorsements or other forms of support», as defined in: “Report on the Misuse of Administrative Resources during Electoral Processes”, Study No. 585/2010, European Commission for Democracy through Law (Venice Commission), Council of Europe, 16 December 2013, Strasbourg. Available here
The misuse of administrative resources during electoral processes is covered by the following international standards and guidelines:
Extortion is the use of coercion to obtain money, goods, services or some other advantage from an individual or institution. Beyond the damage it does to the victim, extortion reduces public trust in government and can discourage business growth and investment in the area.
As one type of corruption, extortion is covered by the following international standards and guidelines:
In 2017, 26% of those who reported giving a bribe did so due to direct extortion. Another 27% were indirectly asked for a bribe. 25.7% reported giving a bribe in order to persuade public officials to fulfil their duty.
The Criminal Code (Article 354, note 5) defines extortion as a «demand to provide unjustified benefit with a threat to take actions or omit to act using one's position, authority granted, power, or service position in relation to the person who provides unjustified benefit, or deliberate creation of conditions under which a person is compelled to provide unjustified benefit in order to prevent harmful consequences for his/her rights and legitimate interests». In line with Article 368, paragraph 3 of the Criminal Code of Ukraine, extortion of unjustified benefits can be punished by imprisonment between five to ten years and deprivation of the right to hold certain offices or engage in certain activities for three years, and confiscation of private property.
In 2014, the Cherkasy regional court of appeal rendered its judgement on the head of a city council, who had colluded with his deputy. They were accused of extortion of unjustified benefits in the form of a 30% share in a private entrepreneur’s firm. The share was transferred to the deputy head’s wife. In return, defendants gave to an entrepreneur a permit to open a trailer shop in the city. Both defendants were banned for three years from occupying any public offices in state authorities. They were exempted from five years imprisonment and received three years’ probation instead.
Clientelism is the promise and acceptance of a personal benefit (e.g. gift, loan, reward, favour, job, etc.) in exchange for political support. It is often based on an unequal relationship between a patron (e.g. political leader) and client (e.g. voter). Clientelism results in decisions that reflect the special interests of a few, rather than the wider public interest, leading to unfair and unjust outcomes.
As one type of corruption, clientelism is covered by the following international standards and guidelines:
Patronage is the use of an official position to appoint a person in a public office based on favouritism, often in exchange of political support. It can be closely linked to the concepts of clientelism, cronyism and nepotism. Patronage results in decisions being made not on the basis of what is in the interests of society at large, but what is in the self-interests of the decision maker and their associates. It violates the boundaries of legitimate political influence and the principles of merit, and leads to public money being misspent.
As one type of corruption, patronage is covered by the following international standards and guidelines:
Since the misuse of administrative resources during electoral processes is the most widespread manner to use patronage as a form of corruption, the following international standards are of relevance:
Patronage is considered to be widespread and poorly regulated in Ukrainian politics. The situation, when a politician provides an executive position to a person based on a personal relationship rather than merit, creates a vicious circle of favouritism. The favour of giving the job creates pressure to return the favour and blurs the boundary between political office and executive positions. In other words, due to patronage, bureaucracy loses its impartiality but remains difficult to prove at the same time.
The Law No. 889 “On Civil Service” of 10 December 2015 obliges civil servants to be politically impartial. Article 10 of the Law states that civil servants must implement legal directives independently of their own political views or the political affiliation of the authority. Besides, civil servants of the highest category are not allowed to be members of a political party or to be members of the local council. It is prohibited for all civil servants to be involved in political campaigns or in events organised by political parties, or to use public office for any political purposes. Article 10.3 of the abovementioned law explicitly prohibits the use of administrative resources and reduces corruption risks related to patronage.
Cases of illicit political influence on appointments and the work of executive public officials rarely reach the court since they are difficult to prove. The following case gives an example in which a former minister perceived that illegal political influence was undermining his impartiality.
In 2016, a former Minister for Economic Development and Trade reported the illegal influence of Members of Parliament on the work of his ministry. The National Anti-Corruption Bureau of Ukraine investigated the case and submitted an indictment against the executive director of a national company for illegal influence exerted by him on the former Minister. According to the allegation, the aim of the “said” influence was to become the Deputy Minister of Economic Development and Trade. The case is still ongoing in Kyiv’s Solomianskyi court and the court arraignment has been postponed several times.