Weekly analytics for 25 – 31 March 

Preventing Administrative Pressure on Declarants or Enabling Evasion of Liability for False Declarations?

Event

On February 18, the Draft Law “On amendments to the Law of Ukraine “On corruption prevention” to clarify the declaration procedure” (reg. № 13026, hereinafter – the Draft Law) was registered in the Parliament. It proposes the following:

1. to amend Part 8 of Article 46 of the Law “On corruption prevention” (hereinafter – the Law) to remove declarants liability for discrepancies between information recorded in information and telecommunication systems, reference databases, registers, and other official documents.

2. to amend paragraph 1, part 3, Article 47 of the Law, stating that the National Agency on Corruption Prevention (NACP) shall ensure the automated uploading of information about declarants and their family members, as recorded in official registers, into the declaration form; supplement the Article 47 of the Law with part 4, exempting declarants from liability for providing incomplete information in their declaration if the NACP fails to ensure the automated data upload; introduce part 5 of Article 47, requiring that restricted-access information from the Unified State Register of Declarations of Public Officials (USRDPO) be provided to third parties only with mandatory notification to the declarant, no later than the day following the disclosure.

3. to amend part 5 of Article 51-3 of the Law to specify that a full verification of a declaration will cover only assets not previously subjected to a full audit in prior reporting periods – unless a final court ruling in a criminal case determines otherwise; introduce part 6 of Article 51-3, requiring the NACP to verify a declarant’s assets and income, as well as those of their family members, exclusively for the period during which the declarant performed duties related to state or local self-government functions, plus one year after ceasing such activities.

CPLR’s position

The Draft Law has several significant flaws:

1. Amendments to Article 51-3 of the Law conflicts with EU requirements. The European Commission’s Report on Ukraine (November 8, 2023), explicitly states that: “Ukraine should still enact a law raising the legislative staffing cap for the NABU and remove from the law on corruption prevention the provisions restricting the NACP’s powers to continued verification of assets that have already undergone the verification process and limiting NACP’s powers to verify property acquired by declarants before joining the public service, without prejudice to the rules applying to national security during wartime” (Step 3 of the European Commission’s conclusion on the implementation assessment). In response, the Law № 3503-IX (of December 8, 2023) introduced relevant amendments to part 5 of Article 51-3 and repealed part 7 of Article 51-1 to align with these requirements. However, the current Draft Law appears to be an attempt to roll back to the previous version.

The NACP has recently acquired new tools to detect previously undisclosed income. Furthermore, the legal process from indictment to conviction can be lengthy, complicating efforts to verify facts established in court rulings. Additionally, official statistics indicate that only a small percentage of corruption-related criminal cases result in convictions. As a result, the proposed changes in the Draft Law would effectively prevent the NACP from conducting full checks on assets even in cases where corruption-related facts emerge during criminal or administrative proceedings.

The Explanatory Note to the Draft Law states the need to prevent administrative pressure on declarants and eliminate duplicate inspections. However, it fails to clarify how repeated inspections exert pressure on declarants.

2. The rationale for exempting a declarant from liability for incomplete information in their declaration, should the NACP fail to ensure the automated upload of data into the declaration form, is not convincing. Moreover, the appropriateness of assigning this responsibility to the NACP (part 4 of Article 47 of the Law) is questionable. Furthermore, considering the wording in the new version of Part 8, Article 46 of the Law, the declarant may (but is not required) to clarify and/or supplement the automatically uploaded information regarding themselves and their family members.

The NACP should not be tasked with automatically filling out declarations based on available registers. The declaration is submitted by the declarant, who bears sole responsibility for the accuracy of the information provided. Registers and NACP systems are meant to simplify the declaration process, not to replace the declarant’s responsibility, and should be viewed as supporting tools. While technical issues with registers and systems may arise, this should not justify a failure to submit or an incomplete submission of the declaration. The declarant, better than any registry, is aware of the extent of his/her property, income, and expenses, which must be disclosed in the declaration. The core principle of declaring is based on the voluntary disclosure of one’s income and expenses. According to proposed amendments, the responsibility for gathering this information is shifted to the state, represented by the NACP. However, it is clear that the NACP, with just a dozen of employees, cannot ensure the accurate completion of even a portion of the declarations submitted by the two million declarants. Moreover, it is not their role.

3. The justification for the proposals in the Draft Law concerning the revision of Part 5, Article 47 which addresses the obligation to inform the declarant about third parties’ access to their own and their family members’ full data from the USRDPO – cannot be agreed upon, particularly with the argument that this constitutes a violation of the right to privacy.

European, international, and national practices have consistently emphasized that the right to privacy for individuals holding public office, such as government or local self-government officials, differs significantly from that of private individuals. The Parliamentary Assembly of the Council of Europe, in Resolution № 1165 (1998) of December 25, 2008, stated that public figures must recognise that the position they occupy in society automatically entails increased pressure on their privacy (para. 6). The practice of the European Court of Human Rights, regarding the application of Articles 8 and 10 of the European Convention on Human Rights, further establishes that, in a democratic society, public officials must accept being subject to public scrutiny and criticism. This is necessary to ensure transparency and accountability in the execution of their duties (e.g., Novaya Gazeta v. Voronezh v. Russia, Castells v. Spain). The Constitutional Court of Ukraine, in its decision № 2-rp/2012 of January 20, 2012, stated that “holding a position related to the performance of state or local self-government functions not only guarantees the protection of the rights of the individual but also imposes additional legal obligations. The public nature of both the authorities as subjects of power and their officials requires the disclosure of certain information to shape public opinion on trust in the government, and support its authority in society” (para. 3.3). This understanding of the right to privacy of public servants is also supported by legal professionals.

Therefore, Draft Law №13026 does not align with the EU requirements outlined in the European Commission’s report and unjustifiably and disproportionately limits the powers of the NACP.

“Remuneration Reform” Once Again and Legislative Peculiarities for Certain Public Authorities

Event

On March 25, the Verkhovna Rada of Ukraine adopted the Law of Ukraine on amendments to the Law of Ukraine “On Civil Service” to improve the procedure for correlating the ranks of civil servants with those of local self-government officials, military personnel, diplomats, and other specialized positions. The amendments also provide for the inclusion of the time an official worked in certain positions within military administrations in the calculation of civil service tenure.

CPLR’s assessment 

Draft law № 9478, passed in the first reading, aimed to address two issues outlined in its title:

– granting higher ranks to certain civil servants based on correlation between these ranks and other special titles;

– recognizing time served in military administration positions as part of civil service tenure.

What actually “important” aspects were addressed

Ahead of the law’s vote in the plenary hall, the Committee on State Power Organization, Local Self-Government, Regional Development, and Urban Planning reviewed the Comparative Table for the second reading of this draft law.

Among the proposed changes was amendment № 6, introduced by several committee members. This amendment sought to add the phrase “certain issues of civil service tenure” to the law’s title. However, in fact, it aimed to introduce an unrelated provision concerning special salaries for specific public authorities – an issue beyond the original scope of this draft law.

The amendment provides for higher salaries for four ministries: the Ministry of Finance, the Ministry of Economy, the Ministry of Justice, and the Ministry of Digital Transformation. These ministries have been “upgraded” to the so-called constitutional state bodies (the first type), where higher salary levels are set. Other ministries will remain the second type, alongside several central executive authorities.

An apparent inconsistency also arises, as Parliament reversed its position within a week. A similar amendment was proposed during the previous plenary session, but it failed to gain sufficient support.

Furthermore, this is not the full list of “special” public authorities. The Pension Fund has been upgraded to the second type, along with its territorial bodies. Additionally, territorial units of central executive authorities coordinated by the Ministry of Finance (such as the Customs Service, the Tax Service, and the State Audit Service) have also been upgraded.

Moreover, it seems one-sided to maintain a seniority allowance of up to 50% of the salary exclusively for employees of the Verkhovna Rada of Ukraine Office who acquired this right prior to the enactment of the Law of Ukraine “On Amendments to Certain Laws of Ukraine Regarding the Introduction of Unified Approaches to Public Servants’ Salaries Based on Job Classification”. In contrast, for all other civil service positions in public authorities, the allowance will be no more than 30% of the salary. The reform table in the EU’s Ukraine Facility Plan did not include any exceptions to the reduction of the seniority allowance from 50% to 30%.

It is also important to note that adoption of this draft law is not considered urgent, unlike the recently adopted draft law № 8222, which was a key indicator for the implementation of the Ukraine Facility Plan. Additionally, this law is not included in the legislative work plan.

This approach to lawmaking poses challenges to the policy development integrity in the civil service sector, with an increasing trend of restricted access to decision-making processes. While the Law of Ukraine “On Committees of the Verkhovna Rada of Ukraine” states that meetings and other committee activities held openly may be attended by, among others, representatives of civil society organizations, the actual implementation of this right requires attention and resolution.

In light of this, the CPLR generally supports the establishment of fair salaries for all political positions and civil servants. However, this should be done in a systematic, comprehensive, and transparent manner, not selectively. It should align with the position of each authority within the public governance system and the work performed by the official, while adhering to one of the EU’s core principles: “equal pay for equal work”.

The CPLR once again stresses that lobbying for own salary increases by certain representatives of public authorities creates the impression of a conflict of interest among those involved. As a result, issues of transparency and fairness in public sector remuneration policies will continue to be a highly sensitive matter for society.

The full text of the adopted law is expected for further review by the President of Ukraine. Our conclusions are based on the information available in the card of the draft law, which is available on the Ukrainians parliament website at the following link: https://itd.rada.gov.ua/BILLINFO/Bills/Card/42269.