OpinionWeaknesses of e-declaration
Having studied the anti-corruption legislation, it can be concluded that the prospects of bringing corrupt officials to justice are rather ambiguous. The lawyers see how they can exploit the gaps in anti-corruption legislation in favor of their potential customers.
According to Law of Ukraine "On Prevention of Corruption" (hereinafter - the Law on Corruption), the right of inspection and control of e-declarations filed by persons authorized to perform functions of the state and local government, is granted to the National Agency for Corruption Prevention (NACP). In accordance with Article 48 of the Law on Corruption, the NACP has the right to exercise any control of declarations or their full check.
Prospects of bringing corrupt officials to responsibility in Ukraine are rather ambiguous
Moreover, the control applies only to the timeliness of submission of declarations, the completeness and accuracy of data filed, as well as logical and arithmetical errors. The key offense of an official filing a declaration in this context may be his failure to file his declaration before deadline, which shall result in criminal liability under Article 366-1 of the Criminal Code of Ukraine. In my view, this, in many ways, explains the high percentage of the Ukrainian officials who chose to file their declarations in due manner.
At the same time, in the context of a full check, the NACP has the right to inspect:
1) the accuracy of data filed;
2) the accuracy of the evaluation of assets declared;
3) the existence of conflict of interest;
4) the existence of signs of illicit enrichment.
However, the Law on Corruption stipulates no exact procedure of these kinds of verification, delegating these issues NACP, which should settle these issues with their own regulations.
To date, the decision of the NACP on a control procedure and full verification of declarations has not been registered by the Ministry of Justice due to the imperfections of the draft submitted by the NACP.
So, what will this full verification be like in this case? Will the NACP really be able to come to the official’s home and demand that he present for inspection millions of cash hryvnias, dollars, euros, or their paintings, wine collections, churches, and holy relics? Will they seek and verify, for example, the receipt of foreign exchange transactions, bank account statements, facts of receipt of dividends from controlled entities?
We already can say that all of the above-mentioned is highly unlikely, if not impossible.
Verification of declarations of Ukraine’s officials will, for the most part, be a formal process of exchanging requests and documents. According to the Law on Corruption, the NACP has no right to require from the declarant to present cash or other valuable property specified in the declaration, only copies of documents and written explanations. Checking the cash flows in bank accounts of declarants and entities they control is no easy task, either. That’s because we are talking about banking secrecy, the disclosure of which is carried out in a specific order, which, as a rule, is by a court order. At the same time, the Law on Corruption does not provide for any other options.
Verification of declarations of Ukraine’s officials will, for the most part, be a formal process of exchanging requests and documents
However, it makes no sense to deny that the NACP will continue with their attempts to show the "result" of their work and to bring to justice some of the officials. But the actual result of their work will largely depend on the persistence of law enforcers and the efficiency of defense.
Oleh Hromovoi is a lawyer and a partner at GENTLS law firm