Another veto needed: how the adopted draft law No. 9587-d can ruin the e-declaration system

While the current focus is on the applied veto regarding the draft law on the resuming of declarations and the opening of the declaration register, it’s crucial not to overlook another anti-corruption legislative proposal, which, in turn, poses risks to the transparent e-declaration system for officials.

On September 5, the Parliament adopted the draft law No. 9587-d in the second reading. It proposes to introduce automated fines on declarants who fail to submit a declaration in time.

Photo: Yaroslav Zheliezniak

 We at Transparency International Ukraine has already analyzed pros and cons of that document. In particular, we criticized the provision on the automatic application of fines for failure to submit declarations without specifying the reasons. Meanwhile, they may be valid. Another our concern was that the NACP would be the sole authority to decide on imposing fines, instead of the court.

A positive change from the previous draft proposals is to introduce time limits for staying in the Register of Corrupt Officials. 

However, by the second reading, MPs made numerous harmful amendments, which caused a real outrage in civil society. The full text of the adopted draft law was published only today, September 12, so we immediately analyzed it and came to the conclusion that it also requires significant revision. Let’s see what’s wrong.

What needs to be refined

Unfortunately, our main concern about this bill came true. MPs sustained the amendment that after paying UAH 17-42.5 thousand fine for lies in declarations up to UAH 1 million 342 thousand, a violating official will not even be regarded as someone who has faced administrative penalties. 

This critical moment was emphasized earlier by Transparency International Ukraine urging the President to veto this bill. Almost one and a half million hryvnias is a rather large amount enough to  buy a car or an apartment. Therefore, it is simply unacceptable to allow declarants to “forget” to mention property of such value in their declarations and just pay off a ridiculous fine without entering it in the Register of Corrupt Officials.

Moreover, the new law preserves the NACP’s quasi-judicial role, which will discreetly decide whether to hold the declarant accountable for late submission of the declaration. According to Article 124 of the Constitution of Ukraine, justice in Ukraine is administered exclusively by the courts, and the appropriation of these functions by other bodies or officials, shall not be permitted. The NACP is not an exception here, just like any other state institution. The jurisdiction of the courts extends to any legal dispute, and, of course, any fine for failure to submit a declaration on time, which is imposed by the NACP, is simply meaningless in essence. 

Therefore, taking over the judicial function of the NACP, in our opinion, at least contradicts the Basic Law of the state.

What should be left in the new law

As we noted earlier, TI Ukraine positively assesses the introduction of time limits for staying in the Register of Corrupt Officials. This problem is long overdue because such a restriction corresponds to the legal principle that after a certain time for a person brought to legal responsibility, all negative legal consequences associated with it should be stopped.

In addition, during the second reading, the MPs adopted an amendment that proposes to provide in the draft law a list of valid reasons why the declarant could not submit the declaration on time. They are: 

• arrest, detention, or serving a sentence; 
• restriction of freedom of movement due to a law or court ruling;
• force majeure, i.e. epidemics, military events, natural disasters, or other similar circumstances; 
• serious illness or stay in a health care facility for treatment or in case of pregnancy, provided that it is impossible to temporarily leave such facility; 
• technical failures in the official NACP website; 
• requesting information for inclusion in the declaration. 

These exceptions represent a generally favorable development, affording the declarant at least some chance to offer their explanations and prevent the automatic imposition of fines without appealing in court. Since the list of justifiable reasons for such delays is quite exhaustive, this will help minimize the potential for exploiting this provision to avoid accountability. 

However, on the other hand, such exhaustion will also not allow to cover all possible situations that prevented the official from submitting a declaration. Therefore, it is probably worth adding some other variable point that will add flexibility — recent years have shown that it is hardly possible to provide for all the obstacles to the timely submission of declarations by officials.

Thus, this law must also be vetoed by the President

We are convinced that the President should veto this bill and also return it for revision. Especially in terms of harmful recent amendments that allow avoiding responsibility for lying in the declaration up to UAH 1 million 342 thousand, and to give powers to the NACP that were previously assigned to the court. 

The triumph of civil society, which collaboratively achieved the veto on draft law 9534 and the opening of the declaration register, must not overshadow the need to veto 9587-d. After all, it can also lead to a significant weakening of the anti-corruption reform, which we definitely do not want to happen.