NACP Identifies Corruption-Enabling Factors in Draft Law No. 12439

The National Agency on Corruption Prevention (NACP) has completed its anti-corruption review of Draft Law No. 12439 on the protection of business entities during criminal proceedings. The agency’s conclusions find that the draft contains corruption-enabling factors and requires revision.

TI Ukraine previously requested that NACP conduct this review, having identified in its own analysis a range of risks to the effectiveness of anti-corruption bodies. The NACP’s findings confirm our key concerns.

The NACP identified the following corruption-enabling factors.

1. Insufficient legal certainty and foreseeability of criminal law provisions 

The draft contains evaluative concepts open to arbitrary interpretation by law enforcement. This applies in particular to proposed amendments to Article 214(1) of the Criminal Procedure Code, which would grant investigators, inquiry officers, and prosecutors discretionary authority to determine whether “sufficient grounds” exist to enter information into the Unified Register of Pre-trial Investigations. The NACP considers this arrangement conducive to selective registration of criminal offense reports and a source of corruption risk.

2. Risk of avoiding criminal liability through executive agency guidance 

The proposed amendment to Article 41-1 of the Criminal Code provides that an act committed on the basis of guidance issued by central executive bodies does not constitute a criminal offense. However, the provision does not define which bodies are authorized to issue such guidance, its form or timeframe, or the criteria for assessing its lawfulness. The NACP notes that such guidance could be used as a shield against criminal liability — including guidance that is deliberately unlawful or contrary to existing legislation.

3. Opaque discretionary powers of the prosecutorial authority head

The proposed addition to Article 214(8) of the Criminal Procedure Code establishes a special procedure for entering information into the Unified Register of Pre-trial Investigations by the head of a prosecutorial body in cases involving criminal offenses in the sphere of economic activity and offenses under Article 191 of the Criminal Code. The NACP warns that this may lead to inconsistent application of the law and undermine the overall effectiveness of pre-trial investigations.

4. Unsystematic narrowing of grounds for urgent searches

Amendments to Article 233(3) of the Criminal Procedure Code propose a limited list of offenses for which an urgent search is permitted. The list includes Article 368 of the Criminal Code (“Acceptance of an offer, promise, or receipt of unlawful benefit by an official”) but excludes other offenses of comparable public danger, including Article 369 (“Offer, promise, or provision of unlawful benefit to an official”). The NACP characterizes this approach as unjustified.

The NACP’s findings confirm that the problems with Draft Law No. 12439 are systemic and cannot be resolved through “technical and legal refinement,” as the relevant Verkhovna Rada committee proposed ahead of the second reading. Before being put to a vote, the draft requires substantial revision in light of the NACP’s observations and recommendations.

TI Ukraine calls on the Verkhovna Rada not to proceed with the second reading of Draft Law No. 12439 until all identified corruption-enabling factors have been fully addressed.