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E-declarations of Public Officials: Final Countdown or New Battles Ahead

Despite public promises of the President Poroshenko to launch e-declaration system in time, it seems those in power found the way to secure impunity for officials who submit false information.  

On August 15 the electronic system for submission and publication of declarations of public officials must be launched.  The date was finally scheduled, but only after considerable pressure from the EU, the US, IMF and NGOs, who jointly overcame the resistance of political elites.

On August 11 the President publicly stated that the system of e-declarations will be launched on August 15 as was previously planned. He emphasized that obvious weakness of the software may not cause any delay in launch of the system.

However, it seems that the government and the President are preparing to launch the system of e-declarations in a way that will secure impunity for officials who submit false information.

The horror of e-declarations

E-declarations has turned out to be one of the most frightening reforms for Ukrainian political elites. And many MPs, judges, prosecutors, mid-level officials of executive bodies and other public officials do have what to worry about.

Firstly, the new declaration makes it harder to hide property by requiring the declaree to declare cash and corporate rights and possessions of spouses other than his/her wife/husband.

Secondly, launching of the e-declaration also introduces criminal liability for submitting false information in declarations. Officials with questionable assets face the dead end of criminal liability: declaring may make them suspects of the crime of illicit enrichment while non-declaring at least some assets will create liability for the crime of declaring false information.

Thirdly, both illicit enrichment and false statements in declarations by senior state officials will now be investigated by the National Anticorruption Bureau (NABU), which is already demonstrating independence and effectiveness.

Therefore, the threat of being brought to justice for inadequate assets becomes a nightmare for politicians and other senior officials.  The nightmare commences with the launch of e-declarations.

Attempts to kill e-declarations

Not surprisingly, political elites are repeatedly trying to undermine e-declarations. As many as three such attempts took place over the last nine months.

In December 2015, the parliament tried to postpone the launch of e-declarations through the law on the state budget (the amendment was introduced on the final eve before the vote). However, under pressure from foreign partners and the public, the Administration of the President promised to repeal the amendment. To “correct the mistake”, the parliament adopted the draft law of MP Andriy Denysenko, by which rescheduled the launch of the e-declaration system for 2016, but abolished criminal liability for recording false information in the declarations. Again, under the pressure of international partners, the President vetoed Denysenko’s bill. The current version of the law on e-declarations was adopted under strong pressure of EU  and civil society only in March 2016 and provided for criminalization of willful non-disclosure of significant assets. This was the final milestone Ukraine had to accomplish to receive green light for visa liberalization.

In the meantime, the government delayed the establishment of the National Agency for Prevention of Corruption, which is responsible for launching e-declarations and verification of submitted information. Four of five commissioners were appointed in March 2016.

In order not to give the government another opportunity to block e-declarations, software for the system was developed by an independent contractor and in accordance with technical terms from the World Bank and UNDP. Both software development and necessary hardware were funded by the UNDP.

Finally, on June 10 the Agency announced an official decision that the system of e-declarations should be launched on August 15, 2016, for top officials, judges, prosecutors, etc. (50 000 people), and on January 1, 2017 – for all other declarants.

Ukraine’s international partners see the timely launch of e-declarations as a current anticorruption priority. Both the IMF and the EU constantly remind the President and the government that an effective system of e-declarations is a precondition for visa liberalization and further financial assistance. For this reason Ukrainian political elites do not have space for maneuvering so as to postpone the e-declaration system for a later date than August 15. However, they seem to have found another solution.

Declarations without liability?

It seems that politicians are ready to tolerate publicity of their assets, but not the perspective of criminal sentence for false declarations. Politicians are preparing to launch the system of e-declarations in a way that will guarantee impunity of those who submit declarations. How is this possible?

According to the Regulations on the operations of the e-declarations software system adopted by the Agency for prevention of corruption, the system should have state certification of proper data protection to be able to function.

Should the system not receive the certification, all submitted declarations will not have  legal value and may not be presented as evidence in court. Therefore, people who submit declarations via an uncertified software system may not be brought to justice for submitting false information or for illicit enrichment.

Not surprisingly, the system of e-declarations does not yet have a state certification of data protection. The decision on whether to grant the certificate depends on the State Agency for Special Communications, which is in direct subordination to the Cabinet of Ministers and is said to be informally controlled by O.Turchynov. According to the action plan on launching the system of e-declarations, adopted by the Agency for prevention of corruption and agreed upon with the Agency for special communications, the certificate has to be granted by August 12.

 “Small” technical details

The Agency for Special Communications is giving indications that the certificate of data protection will not be granted to the system of e-declarations on time.

Firstly, they offered the Agency for Prevention of Corruption to hire a state-owned company rather indepdendent commercial firm to perform expertize of data protection, in the system of e-declaration. Not surprisingly, the state-owned company is under direct control of the Agency for Special Communications.

Secondly, the Agency started to claim that the system of e-declarations is only 60% ready and thus may not pass the expertize on data protection in time. This is a unique manipulation. The module for submission and publication of declarations, which is the one that requires certification, is 100% ready and has been tested with the participation of the Agency for special communications and the UNDP.

The module for automatic cerification of declarations is the one not ready, because it requires access to a number of state databases and registries that the Agency for prevention of corruption does not yet have.

Finally, the Agency for Special Communications came up with the idea to not just expertize the data protection system, but the whole program code of e-declarations. It is becoming obvious that the Agency is introducing excuses for not granting e-declarations with the certificate of data protection in time.

Therefore, the e-declarations system may be launched on August 15 without proper certificates, which does not create any threat of criminal liability for those who submit declarations.

The elites hoped that a small technical detail of certificate of data protection for e-declarations would go unnoticed. They planned to present the launch of e-declarations as a huge success and then to act surprised when the legal impotency of the declarations becomes obvious. This did not work as the EU delegation in Ukraine has already made a statement requesting the Ukrainian government to launch the system of e-declarations on August 15 with all proper certificates.

Plan “B”

Elites seek to win time to ensure the total erosion of the system of asset declarations. For this, they have at least one plan – to cut the potential of e-declarations through Constitutional Court. The Court is already considering a complaint  of 50 MPs (former members of the Party of Regions) requesting the Court to declare key legal provisions on e-declarations unconstitutional. In particular, the complaint questions whether provision on criminal responsibility for the false information in the declaration is constitutional.

Should the Court rule that this provision is unconstitutional, it will be cancelled without further decision of the Parliament and the system of asset disclosure would become ineffective.

August 15 will show the true nature of elites that gained power due to the Revolution of Dignity. If they are sincere in their promises to the people of Ukraine to tackle grand political corruption, if they care for visa-free regime with the EU and IMF money for the state budget, the system of e-declarations will be launched with the certificate that ensures its legal validity. If e-declarations are not launched in a proper way, it will be obvious that the elites chose to secure their illegal assets instead of the well-being of Ukrainians.

by Anastasia Krasnosilska for Kyiv Post