Weekly analytics for 13 — 19 September

Restoring declarations and access to the register of declarations: Is it a victory?

Event

At the beginning of September, the Verkhovna Rada adopted the Law “On amendments to certain Laws of Ukraine on defining the procedure for submitting the declarations by individuals authorized to perform state or local self-government functions under martial law” (Law on restoring of declarations), which provides for the restoration of mandatory declaration of assets by civil servants.

In the first version of the draft of this Law, which was already analyzed by the experts of the CPLR, it was proposed to restrict the disclosure of certain information (the name of the locality where the declared objects are located, the last name, first name, and patronymic of the declarant’s family members and third parties) in the public section of the Unified State Register of declarations of persons authorized to perform the state or local self-government functions (Register of Declarations). During preparation of the document for the second reading, amendments were proposed, according to which public access to the Register of Declarations will generally remain closed for another year, but the declarants could voluntarily apply to the National Agency for the Corruption Prevention to request publication of their declarations. This amendment was supported by the majority of MPs. Consequently, the Law with this provision was sent for the President’s signature.

On September 12, the President of Ukraine returned the Law on the restoration of declarations to the Parliament, exercising his veto right and providing recommendations regarding open access to the Register of Declarations with certain limitations. This was preceded by a petition for the immediate opening of the Register, which gathered the necessary number of signatures within a record-breaking three hours (as a general rule, the collection of signatures takes 90 days) and demonstrated the level of public dissatisfaction with the prospect of not being able to exercise public control over the incomes of public servants for another year.

CPLR’s expert assessment

Why should the Register of Declarations be open to citizens?

Opponents of opening the Register of Declarations referred to the need to protect the data of public servants from being obtained by the special services of the aggressor state. Ostensibly, by having access to part of the data about property and income of Ukrainian officials, the enemy will easily be able to collect information that might be used to exert potential influence on them.

However, such arguments do not take into account the fact that the mechanism of electronic declarations and publication of declarations in open access was introduced back in 2016, when the Russian-Ukrainian war was already ongoing. Article 52-1 of the Law “On Corruption Prevention” already contained provisions (before the full-scale war began) that set forth the peculiarities of declarations by certain categories of individuals whose workplace should not be open to public access.

Over the course of existence of the Register of Declarations, the public has had numerous opportunities to make sure for themselves that the Register is an effective tool for detecting and preventing corruption. Facts of illegal enrichment and acquisition of unjustified assets have been exposed repeatedly by public activists or journalists. Moreover, an open Register of Declarations ensures the proper performance of tasks by authorized units (authorized persons) responsible for the prevention of corruption, which includes verifying the timely submission of declarations, as well as by the Public Integrity Council, which facilitates the cleansing of the judiciary. The public’s frustration with the prospect of public servants’ declarations being closed for another year is entirely justified. 

What positive aspects are contained in the Law on Restoration of Declarations?

Besides the provisions that caused public controversy, the Law on the Restoration of Declarations proposes specific improvements to the anti-corruption legislation.

1. Part 4 of Art. 23 of the Law “On corruption prevention” specifies that if a public servant makes a decision in favor of a person from whom he/she or a person close to them received a gift, such a decision is deemed to have been made under a conflict of interest and is to be repealed. The law on restoration of declarations proposes to specify that no more than three years should pass between the receipt of the gift and the issuance of the decision. This provision eliminates legal uncertainty and improves the system for preventing conflicts of interest.
2. The law extends the deadline for submitting a corrected declaration by individuals authorized to perform state of local self-government functions from 7 to 30 days. However, it removes the limitation on the number of corrections, which according to the current law can not exceed three times.
3. The law on restoration of declarations establishes clear timelines for when a person can submit a declaration or correct inaccurate information in it after facing legal responsibility. The current provision of the Law “On corruption prevention” only requires the submission of a relevant declaration with accurate information without clear time limits.

What does the President propose?

The version of the Law on restoration of declarations as adopted by the Parliament, along with the Register that will remain closed for another year, provides that certain categories of individuals will not be required to submit declarations during the period of martial law, even after this Law enters into force. In particular, this applies to military personnel, police officers, rescuers, border guards who are directly involved in the defense of the country, intelligence officers, and employees stationed in the occupied territories or active hostilities zones. For these individuals, the obligation to submit declarations will arise within 90 days after the end or termination of the legal regime of martial law or their dismissal from service.

The President proposes that the declarations of these specific categories of individuals would not be opened to public access. Instead, access to the declarations of MPs, employees of ministries and other central executive bodies, local self-government officials, and employees of territorial recruitment centers (so called military committees) should remain open to the same extent as before the introduction of martial law.

Президент ветував Закон. Що далі?

The President vetoed the Law. What’s next?

Article 106 of the Constitution of Ukraine establishes the President’s right to veto laws adopted by the Verkhovna Rada of Ukraine (except laws on amendments to the Constitution of Ukraine), followed by the return of these laws for reconsideration to the Verkhovna Rada of Ukraine.

The Rules of Procedure of the Verkhovna Rada of Ukraine provide for the procedure and deadlines for reviewing the President’s proposals regarding a vetoed law. According to Art. 132 of the Rules of Procedure, the results of the vote on a vetoed law are canceled and the procedure for its re-examination begins urgently during a plenary session within 30 days of the law’s return, unless the Parliament decides otherwise.

According to Art. 135 of the Rules of Procedure, the President’s proposals must be considered first, and they will be deemed adopted if the majority of MPs from the constitutional composition vote in their favor. Likewise, the law as a whole is adopted if the Parliament approves the President’s proposals.

Thus, there are several possible scenarios for the development of events.

Scenario one (an optimistic one): The Verkhovna Rada accepts the President’s proposals and the Law as a whole is passed by a simple majority of votes (at least 226). In this case, public servants will have 90 days to submit declarations for 2021 and 2022, and until April 1 to submit income declarations for 2023. Access to the Register of Declarations should be opened within two months from the date of publication of the Law.

Scenario two (a fantasy one): The Verkhovna Rada with a two-thirds majority of constitutional members (at least 301 votes) overcomes the presidential veto and leaves the Law unchanged. In this case, public servants will still be required to submit declarations, as in the first scenario, but all information will remain closed to the public for another year or until the end of martial law (if it is canceled or terminated earlier). As already mentioned, this would not only allow officials to hide their assets for another year, but also hinder the work of anti-corruption authorities in checking the timely submission of declarations and block integrity vetting of judges.

Scenario three (a realistic-pessimistic one): The Verkhovna Rada is unable to either overcome the veto or accept the President’s proposals and adopt the Law as a whole. In this case, the restoration of declaration, which is demanded not only by the civil society in Ukraine but also by international partners (in particular, as a condition for financial assistance) will be blocked for an indefinite period.

The near future will show how the events will develop along the lines of one of these scenarios. Currently, public statements by certain MPs on social media, combined with pressure from the society and representatives of European and international institutions, suggest that the first scenario is the most likely one.

Field office of the International Criminal Court opens in Kyiv

Event

On September 14, 2023, the Prosecutor General of Ukraine A. Kostin and the Prosecutor of the International Criminal Court K. Khan announced the opening of a field office of the ICC in Kyiv.

As noted, the operation of the office will enhance the efficiency of the Court’s work and speed up the restoration of justice. 

The ICC field office in Ukraine will become the largest representation of the ICC outside The Hague, where the Court is located.

CPLR’s assessment

Back in March 2023, a year after the beginning of the large-scale Russian aggression, the Prosecutor General A. Kostin and the Secretary of the ICC P. Lewis signed an agreement in The Hague, Netherlands, regarding the opening of an ICC office in Ukraine. Now, almost exactly six months later, demonstrating dedication to its commitments before the international community, the ICC has launched the operation of its largest representation outside The Hague in Kyiv.

As stated by the Ukrainian side and confirmed by K. Khan, the work of this institution will help strengthen cooperation between Ukraine and the ICC, because staff of the Prosecutor’s Office of the Court will be able to investigate international crimes committed by the aggressor state directly “on the spot”. First of all, this means stable situation guaranteed by a bilateral agreement, prompt access to information and the location of events, consultations with Ukrainian state authorities and CSOs in “live” mode; and timely interviews with victims and witnesses, with the possibility of quick involvement in procedural actions jointly with Ukrainian investigators and prosecutors.

It is known that the investigation of Russia’s international crimes against Ukraine is a top priority for the ICC Prosecutor. We can already see the intermediate results of the work of his team. In particular, thanks to close cooperation with the Ukrainian authorities, the ICC has issued arrest warrants for V. Putin and M. Lvova-Belova. As of today, more than 104,000 criminal proceedings related to war crimes committed by Russian combatants – from the lowest to the highest ranks – have been registered. However, the ICC is primarily interested in the military-political leadership based on the principle of complementarity. Therefore, in accordance with the limits of the Court’s jurisdiction recognized by Kyiv, in order to investigate the situation in Ukraine regarding all these crimes, as well as the crime of genocide, K. Khan and his team need to be as close as possible to the scene of criminal offenses.

As K. Khan rightly noted on Thursday, “the law must be at the forefront”. Indeed, the field office of the ICC in Kyiv will allow to respond more effectively to both past and future crimes committed by Russia. Although Ukraine has not yet ratified the Rome Statute of the ICC, an official branch of this powerful international criminal justice body will operate in its capital. It is worth noting that the ICC is currently doing perhaps the most to bring the top political leadership of Russia to criminal responsibility for international crimes against Ukraine. Therefore, it is crucial for Ukraine to support and develop cooperation with K. Khan’s office and to facilitate unhindered work of the ICC team in Kyiv.