Weakening asset declarations system and limiting investigative powers of National Anticorruption bureau of Ukraine
Legal Initiatives to limit public access to electronic asset declarations on public officials: whether they aim to protect property and privacy rights of public officials or to water down the system of e-declarations?
Recently, a set of legislative initiatives appeared in parliament aiming to close public access to part of information from newly introduced electronic asset declarations of public officials. Respective draft laws offered to hide information on cash savings, expensive movable property, gifts of public officials under the pretext of possible security threats to people submitting asset declarations, whose assets allegedly could be exposed to criminals.
AntAC believes, that these initiatives are unreasonable because:
- information about gifts and expensive movable property of top officials – judges, prosecutors, parliamentarians – has been public and available online since 2014, but here is no evidence that such publicity brought about any increase in property crimes against respective public servants;
- According to effective legislation expensive movable property must be declared only if is worth more than USD 5 000 worth; with an average public sector salary of USD 250, most public servants simply cannot owe the property to be declared.
There are acceptable solutions for security concern of the legislators:
- To display publicly cash and bank savings of public officials in one amount (preserving the obligation to declare these separately);
- To partly close public access to some information on assets of low-level public servants.
However, any changes to the legislation on e-declarations now, when there only three weeks left until the deadline for first 50 000 officials to submit their declarations, will undermine the system before it produces any result. It would be preferable to open the discussion on amending respective legislation after the practice of its implementation appears.
State of the system of e-declarations: does it allow to bring public servant to justice for fraud in e-declaration?
As of now, the form of electronic declaration, offered for submission through the system, does not comply with the requirements of the law on prevention of corruption regarding disclosure of assets of public officials. The form does not allow to declare cash savings, gives wrong value thresholds for declaring movable property, gifts and savings, allows to submit more than one declaration for one period et cetera.
Through this, the forms gives public servants an opportunity to hide some of their assets. Most importantly, shortcomings of the form make it impossible to bring public officials to justice for the fraud in e-declaration. The latter was recently confirmed by the head of Anticorruption Bureau of Ukraine A. Sytnyk. However, these shortcomings may be eliminated very quickly through technical measures.
Full responsibility for this lies on the Agency for prevention of corruption and the Agency for special communications.
Legal initiatives aimed to limit investigative powers of Anticorruption Bureau of Ukraine
The Prosecutor General of Ukraine Yuriy Lytsenko announced an intention to change investigative jurisdiction over crimes of grand corruption in order to give bodies other than Anticorruption bureau of Ukraine an opportunity to investigate these crimes. In addition, Lytsenko calls for supreme authority of the Prosecutor General to resolve so-called disputes over investigative jurisdiction in corruption-related cases.
At least two draft laws of this nature are already registered in the Parliament:
Draft law #5212 by M. Palamarchyk from Petro Poroshenko’s block: offers to give Prosecutor’s General of Ukraine a right to forward cases that must be investigated by NABU to other law-enforcement bodies, at the same time denying NABU a right to dispute such decisions of the Prosecutor General.
Draft law #5097 by V. Karpyntsov from Poroshenko’s block: offers to give the Prosecutor’s General of Ukraine supreme authority to resolve so-called disputes over investigative capacity over corruption-related crimes.
It must be mentioned, that currently there are no disputes over investigative jurisdiction in corruption-related cases. The Code on Criminal Procedure of Ukraine defines clear rules of investigative jurisdiction. Any disputes are artificial and reflect desire of other law-enforcement bodies to interfere into investigations of Anticorruption bureau.
In addition, there is a legal initiative to oblige NABU and Special Anticorruption Prosecution to receive approval from the Prosecutor General prior to requesting the Parliament to waive immunity from the legislators (draft law # 5213 from M. Palamarchyk, Petro Poroshenko’s block).
If adopted, these draft laws will give the Prosecutor General a tool to interfere into investigations of NABU and even to remove NABU investigating some cases of corruption.