On August 31, 2021, Oleksandr Novikov, head of the National Agency on Corruption Prevention, issued Order No. 553/21 “On Approval of the Procedure for Monitoring the Completeness of Filling out the Declaration of a Person Authorized to Perform the Functions of the State or Local Self-Government”. The Ministry of Justice registered the order on September 14, and it immediately provoked numerous comments among the public.
Why was this order issued? Wasn’t there such control before?
There was. Holistic control over the correctness and completeness of filling out declarations was carried out at the stage of entering data.
In other words, the system automatically checked whether the declaration contained incorrect characters (for example, the letters “O” instead of the number “0” in the asset value), and whether all the required fields were filled in. If something was wrong, then it was impossible to submit a declaration with errors. The main purpose of such a “red flag” for the declarant was to avoid inconsistencies or technical errors.
Such control, together with the control of timely submission of the declaration and the logical and arithmetic control (LAC), preceded the full verification of the declaration. This model was approved by international experts several years ago.
What did the new leadership of the NACP change?
The fact is that the Law does not envisage separate control over the completeness of filling out declarations and control over its correctness. In other words, the law does not allow the NACP to divide a certain type of control into two separate ones. The Agency does not have unlimited discretion in determining the content of such control. However, the “correctness” control will now include both checking the use of symbols and the availability of information in all required fields of the declaration.
Control of the completeness of filling out a declaration is artificially singled out into a separate autonomous procedure, which will be carried out after the declaration is submitted. The results of reconciliation check of declarations with state registers will be sent to law enforcement agencies (for example, to the NABU) without conducting a full verification of the declaration.
Previously, such a reconciliation check was a component of the LAC, which led to a full check before sending information to law enforcement agencies. Only, it is not clear why external reconciliation check with registers has such significantly different legal consequences compared to internal LAC.
Stop, stop, stop! Will the NACP no longer check declarations?
It will. Monitoring the completeness of filling out a declaration — the so-called “quick” checks — will become an additional procedure along with full checks of declarations. However, it is worth recalling that “quick” checks are not aimed at finding signs of illegal enrichment, unreasonableness of assets, or conflicts of interest. A full verification is aimed at this.
That is, now the priority of the NACP in this procedure will be to search for inconsistencies with an indefinite list of Ukrainian (not even foreign!) registers. Moreover, such verification will take place without the determined rules.
Such actions actually contradict the Law and the Constitution, even if the NACP has formally chosen different names for the subject of analysis, control, or verification. Because according to the Law, it is the full verification of the declaration that consists, in particular, in finding out the validity of the declared information.
In addition, such activity of the NACP can be regarded as a significant interference with the declarant’s exercise of their constitutional rights and freedoms at the level of full verification of the declaration. For example, specialists of the National Agency will be able to send requests to other persons regarding the mandatory provision of information, including that with restricted access. If the legislator provided for such an approach to the application of the procedure for monitoring the correctness and completeness of filling out the declaration, then the scope of regulation at the level of the Law would be wider.
After all, for more serious procedures — for example, for full verification of declarations or monitoring the lifestyle of declaration entities —the legislator has introduced a larger scope of regulation. Among it are clearly indicated grounds for starting such procedures and applicable measures to respond to the identified circumstances and signs of offenses.
The clarity of such wording is important because such actions involve interference in the personal and family life of the declarant, the protection of which is guaranteed by the Constitution of Ukraine and the Convention for the Protection of Human Rights and Fundamental Freedoms. Interference in personal life cannot occur arbitrarily and, in the future, will potentially lead to its appeal to the KAC, the Constitutional Court, or even the ECHR.
However, can this control really be effective?
Hardly. Checks can be considered “quick” because they will be performed within 35 business days, as opposed to 120 calendar days for full verifications. At the same time, in practice, 35 business days will cover at least 47 calendar days, which is already more than a third of the main period for full verification. From the point of view of the resources spent, this period is also too long because the subject of a full verification is broader and includes 5 components, and with a “quick” check, only specific inconsistencies with registers should be checked.
It is worth noting that the NACP has envisaged an algorithm of actions when detecting signs of illegal enrichment or unreasonableness of assets in the framework of “quick” checks. However, we can only guess how such signs can be detected when they are not the subject of such a procedure. Even if illegal enrichment or unreasonableness of assets is detected deliberately, this will already become a duplication of full verification of the declaration within the framework of an arbitrarily invented procedure.
An alternative replacement for the idea of “quick” checks could be further improvement of the LAC. Unfortunately, the NACP has not changed its illegal approach to concealing the LAC rules; previously, it was widely criticized by the Public Council under the NACP. The LAC rules remain a mystery, and at the moment the public cannot help the NACP improve them.
In order for declarations with minor inconsistencies not to be selected for full verification, the NACP should set thresholds for such minor inconsistencies. This is what would make it possible to avoid minor violations that do not entail liability and are rather inadvertent minor mistakes of the declarant.
The potential for increasing the number and optimization of full verifications and allocation of staff resources remains untapped. At the same time, it is almost impossible to check all or even 20% of the submitted annual declarations (and there are about 750,000 of them in Ukraine), but attention should be paid primarily to high-rank officials.
A special feature of the legal technique of the Order is that, despite the direct instruction not to extend this procedure to the control of declarations of intelligence officers and counterintelligence officers, etc. submitted in accordance with Article 52-1 of the Law, the document contains a provision on the need to comply with the requirements of this article when publishing an act on the results of control.
So, what happens next?
Unfortunately, the Ministry of Justice of Ukraine has not refused state registration of the procedure submitted by the NACP for monitoring the completeness of filling out declarations of persons authorized to perform the functions of the state or local self-government. Moreover, contrary to the requirement of Article 15, part 3 of the Law of Ukraine “On Access to Public Information,” the draft of this regulatory legal act was not published on the NACP website no later than 10 working days before the date of its consideration.
In addition, the NACP did not conduct mandatory broad public consultations with the public. This is necessary under the law because this normative legal act concerns the constitutional rights, freedoms, and obligations of citizens.
Given the above-mentioned shortcomings of the proposed procedure, the NACP will only be able to increase its own statistical indicators in a dubious way, while achieving a qualitative impact on the state of corruption in the public sector will be extremely insignificant. Consequently, the risks of this approach outweigh the practical benefits of it.
One of the G7’s priorities regarding the fight against corruption in 2021, is the support for the NACP, in particular, effective verification of electronic declarations. We believe that only the implementation of the existing full verification procedure, enshrined in international standards and best practices, can ensure effective verification of e-declarations.
The NACP should cancel the above-mentioned Order, which will have a negative impact on the e-declaration system, as soon as possible, and focus its efforts on the proper implementation of another financial control measure — full declaration verifications. This is necessary in order not to jeopardize the passage of an external independent audit of the National Agency in the aspect of financial control. Only in this way will the institution be able to detect signs of illegal enrichment, unreasonableness of assets or conflicts of interest, and the strengthening of the anti-corruption influence of the electronic declaration system.
Source: blog.liga.net
