Figures (NEVER) lie, or The Fight Against Corruption According To Statistics

What do Ukrainian statistics know about anti-corruption? The analysis of statistical reporting made it possible to look at the field of anti-corruption in a slightly different way. What do we eventually see?

First! Significant statistical errors in official reporting for 2022.

According to NABU, detectives sent 54 criminal proceedings to the court with an indictment regarding corruption and corruption-related criminal offenses. However, according to the Office of the Prosecutor General, only nine such proceedings have been sent to court. A six-fold error!

Also, according to the State Bureau of Investigation, its investigators sent 293 criminal proceedings regarding corruption and corruption-related criminal offenses to the court with an indictment. However, according to the Office of the Prosecutor General, only 130 such proceedings have been sent to court.

If we cannot properly count even the number of criminal proceedings, then it is scary to think about what the real criminological picture is, which is being hidden from society by the available statistical reports.

Second! Due to the concentration on top corruption subjects of National Anti-Corruption Bureau of Ukraine, Specialized Anti-Corruption Prosecutor’s Office, and High Anti-Corruption Court of Ukraine, far beyond the attention of society, the state, and international partners remain the National Police, the State Security Bureau, other than Specialized Anti-Corruption Prosecutor’s Office, the prosecutor's office, as well as courts other than High Anti-Corruption Court of Ukraine.

Meanwhile, according to the Office of the Prosecutor General, in 2022 investigative units of the National Police under the procedural guidance of prosecutors investigated and sent to court with an indictment the vast majority of criminal proceedings (more than three thousand in total) on corruption and corruption-related criminal offenses, namely:

— 100% of criminal proceedings on bribery of an employee of an enterprise, institution or organization, abuse of authority by an official of a legal entity of private law, abuse of authority by persons who provide public services, bribery of an official of a legal entity of private law, bribery of a person who provides public services (Articles 354, 364-1, 365-2, 368-3, 368-4 of the Criminal Code);

— 99% of criminal proceedings on misappropriation, embezzlement of property or taking possession of it by abuse of official position (Article 191 of the Criminal Code);

— 98% of criminal proceedings on the offer, promise or granting of an illegal benefit to an official (Article 369 of the Criminal Code);

— more than 50% of proceedings on abuse of power or official position, declaration of false information, receipt of unlawful benefit by an official and abuse of influence (Articles 364, 366-2, 368 and 369-2 of the Criminal Code).

Also, three hundred relevant criminal proceedings in 2022 were referred to the court by the investigators of the State Bureau of Investigation.

In addition, the vast majority of protocols on administrative offenses related to corruption are drawn up by authorized persons of the National Police, and not by the National Agency on Corruption Prevention.

Accordingly, in 2022, the courts handed down verdicts against 1,344 individuals and decrees on release from criminal liability against 381 individuals under the articles of the Criminal Code of Ukraine on corruption and corruption-related criminal offenses. Of these, 48 (less than 3%) individuals were sentenced by High Anti-Corruption Court of Ukraine.

I would like to remind you that in Article 1 of the Law On the Prevention of Corruption the National Police and the prosecutor’s office are directly referred to as specially authorized entities in the field of anti-corruption.

Despite the fact that the mentioned bodies bear the burden of combating the main mass of corruption manifestations, neither the National Police nor the SBI have investigative departments with the appropriate specialization; accordingly, investigators and operatives of these bodies do not undergo proper selection and training, they are not provided with the necessary funding, methodical, forensic, and other support, as well as appropriate social guarantees. The same applies to prosecutors’ offices (except for the Specialized Anti-Corruption Prosecutor’s Office) and prosecutors.

This approach is obviously one of the reasons for the still high level of corruption, which, although it does not belong to the so-called top corruption, is not too “low-level” either.

Suffice it to mention that, according to Article 216 of the Criminal Procedure Code of Ukraine, investigators of the National Police are authorized to investigate corruption and corruption-related criminal offenses committed, in particular, by officials holding a responsible and particularly responsible office, managers of large business entities, in the authorized capital of which the share of state or communal property exceeds 50%.

Only in cases where the amount of the subject of the offense provided for in Articles 368, 369, 369-2 of the Criminal Code is five hundred or more times greater than the subsistence minimum for able-bodied persons, and the subject or amount of damage caused in the offenses provided for in Articles 191, 206- 2, 209, 210, 211, 364, 410 of the Criminal Code, two thousand or more times the specified amount, criminal proceedings against these subjects are investigated by the National Anti-Corruption Bureau of Ukraine.

In addition, National Police investigators investigate corruption and corruption-related criminal offenses committed by any officials of other business entities, both medium and large.

For example, criminal proceedings under Part 5 of Article 191 of the Criminal Code of Ukraine due to the fact that Lviv Arsenal received UAH 1.4 billion from the Ministry of Defense of Ukraine as an advance payment under the contract for the supply of a large batch of 120 mm and 82 mm mortar rounds (the supply was supposed to start already in December 2022 2023 and be completely finished by the end of February 2023, but as of the end of July, the Ministry of Defense had not received any mines) is being investigated by the investigators of the National Police, since the form of ownership of Lviv Arsenal is non-state property.

For their part, State Bureau of Investigation (SBI) investigators investigate all corruption and corruption-related criminal offenses committed by the Prosecutor General, his first deputy and deputies, High Anti-Corruption Court of Ukraine judges, National Anti-Corruption Bureau of Ukraine director and his deputies, Specialized Anti-Corruption Prosecutor’s Office prosecutors, as well as committed (with the above-mentioned exception regarding the jurisdiction of National Anti-Corruption Bureau of Ukraine): by other prosecutors; investigators, inquirers; officials of the state tax service and customs service, the National Police, other law enforcement officers.

Investigators of the National Police and the SBI investigate all corruption criminal offenses provided for by Articles 262, 308, 312, 313, 320, 357, 364-1 and 365-2 of the Criminal Code, as they are not under the jurisdiction of National Anti-Corruption Bureau of Ukraine by law.

After all, it is the investigators of the National Police and the SBI who investigate all criminal offenses that are not classified as corruption only because of the inattention of the legislator. These are violations of the procedure for financing a political party, pre-election campaign or referendum campaign, bribery of a voter or referendum participant, member of the election commission or referendum commission, as well as smuggling, violation of intellectual property rights, sale of humanitarian aid, illegal seizure of enterprise property, illegal mining of minerals , illegal hunting, human trafficking, pimping, illegal actions regarding adoption, illegal transportation of persons across the state border of Ukraine and dozens of others, if they were committed by officials using their official position and for selfish motives.

As can be seen from the above lists, the role of the National Police and SBI investigators in the fight against corruption, in particular top corruption, should not be underestimated.

All relevant criminal proceedings are considered by ordinary courts, not by the High Anti-Corruption Court of Ukraine judges.

Finally, the third problem appears during the analysis of the structure of the relevant criminal offenses.

Indeed, bribery is always a “dance for two.” Therefore, it would seem that the number of persons prosecuted for giving an unlawful benefit should be approximately equal to the number of persons prosecuted for receiving it. Or the number of the former may be smaller, given the possibility of exemption from criminal liability provided by law for persons who "give" (see Part 5 of Article 354 of the Criminal Code).

In fact, it is the opposite: in 2022, 851 people were convicted of giving illegal benefits, while only 65 were convicted of receiving them. This is obviously due to the fact that it is easier to provide the indicators of “struggle” through video recording, in particular by police and customs officers, of the facts of offering them illegal benefits than to obtain evidence of the criminal activity of bribe-takers in positions using complicated methods.

One cannot help but be surprised by the fact that out of 64 persons in respect of whom the courts issued judgments under Article 364 of the Criminal Code (abuse of power or official position), 57 were ordered to close criminal proceedings, four were acquitted, and only three were convicted (less than 5%; on the other hand, there are much more guilty verdicts against persons convicted under Article 185 (theft) — 71%).

Maybe something is wrong with Article 364 of the Criminal Code?

The order of numbers is similar for some other articles of the Criminal Code. In particular:

— Article 364-1 (abuse of authority by an official of a legal entity of private law): out of 20 court decisions, 11 — on closing criminal proceedings; one is an acquittal; eight — convictions;

— article 368 (receipt of unlawful benefit by an official): out of 140 court decisions, 57 — on closing criminal proceedings; 18 — acquittals; 65 — convictions;

— article 369-2 (abuse of influence): out of 131 court decisions, 40 — on closing criminal proceedings; four — acquittals; 87 — convictions;

— Article 191 (appropriation, waste of property or possession of it by abuse of official position): out of 359 court decisions, 151 — on closing criminal proceedings; seven — acquittals; 201 — convictions.

However, according to articles 210 (improper use of budget funds) and 368-5 (illegal enrichment) — no indictment or court decision. Silence and grace. Although it is hard to believe that funds from budgets at all levels are used strictly for their intended purpose, and no functionary has illegally enriched themselves. It is difficult indeed, because in 2022, the State Audit Service of Ukraine alone handed over 1,228 materials to law enforcement agencies for the initiation of criminal proceedings, and the Accounting Chamber of Ukraine – another 15.

What is their fate? Unfortunately, Ukrainian criminal statistics do not know everything.

Data from the Unified Report on Criminal Offenses for January-December 2022, the Report on Persons Charged with Criminal Responsibility and Types of Criminal Punishment (Form 6) for 2022, as well as the reports on the work of National Anti-Corruption Bureau of Ukraine and SBI for 2022 became the starting points for the analysis. publicly available on the websites of the Prosecutor General's Office, the judiciary, National Anti-Corruption Bureau of Ukraine, and the State Bureau of Investigation.

In total, in 2022, according to the statistics of the Prosecutor General’s Office, 3,430 criminal proceedings regarding corruption and corruption-related criminal offenses provided for in Articles 191, 210, 354, 364, 364-1, 365-2, 366-2, 366-3, 368, 368-3, 368-4, 368-5, 369-2 of the Criminal Code of Ukraine (CC) were sent to the court with an indictment.

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