It should be reminded that Ukraine’s Constitutional Court previously ruled that the provisions of the Criminal Code providing for criminal liability for the above-mentioned violations and the authority of the National Agency for Corruption Prevention (NAPC) to verify declarations were unconstitutional.
The package of bills approved by the Verkhovna Rada includes:
- Bill of December 3, 2020 No. 4460-d, providing for amendments to the Criminal Code and the Code of Administrative Offences of Ukraine;
- Bill of December 7, 2020 No. 4470 defining the mandate of the NAPC to verify declarations and ensure the respect for ethical standards and conflict-of-interest provisions;
- Bill of December 7, 2020 No. 4471 determining the specifics of the proceedings concerning administrative offences committed by judges.
Liability for false declarations
The first bill adds articles 366-2 (Disclosure of inaccurate information) and 366-3 (Deliberate failure to submit information) to the Criminal Code.
Investigations into cases related to the violation of the above-mentioned articles will be conducted by the National Anti-Corruption Bureau of Ukraine, whilst their subsequent examination will be carried out by the High Anti-Corruption Court (in Russian).
The amendments provide for criminal liability for:
- deliberate failure to submit a declaration, punished with a fine of the non-taxable minimum individual income multiplied by 2,500 to 3,000 times (roughly from 1,500 to 1,900 USD) or community service of between 150 and 240 hours along with the deprivation of the right to hold certain positions or to engage in certain activities for up to three years;
- disclosure of knowingly inaccurate information in a declaration where the difference between real and declared assets amounts to the living wage multiplied by 500 to 4,000 times (around from 41,000 to 327,000 USD), punished by a fine of the non-taxable minimum individual income multiplied by 2,500 to 3,000 times (roughly from 1,500 to 1,900 USD) or community service of between 150 and 240 hours along with the deprivation of the right to hold certain positions or to engage in certain activities for up to three years;
- disclosure of knowingly inaccurate information in a declaration where the difference between real and declared assets exceeds the living wage multiplied by 4,000 times (around 327,000 USD), punished by a fine of the non-taxable minimum individual income multiplied by 3,000 to 5,000 times (roughly from 1,900 to 3,000 USD) or community service of between 150 and 240 hours or the restriction of liberty for up to two years along with the deprivation of the right to hold certain positions or to engage in certain activities for up to three years.
The bill also amends the Note to article 172-6 of the Code of Administrative Offences (Violation of the financial control requirements) lifting the upper threshold of the difference between disclosed and real information; once it is detected, administrative punishment is imposed: if the disclosed assets differ from the real ones by a sum of living wage multiplied by 100 to 500 times (roughly from 8,200 to 41,000 USD) a fine of the non-taxable minimum individual income multiplied by 50 to 100 times (from 27 to 54 USD) is imposed on the respective official.
Besides that, the bill clarifies who are the subjects of the administrative offence, extending the norms of the article also to officials of public corporations and organisations, representatives of public associations and academic and educational institutions, experts and individuals who are members of selection and disciplinary commissions etc.
The mandate of the NAPC and verifications concerning judges
The second bill reinstates the authority of the NAPC to verify declarations of officials, which the Constitutional Court of Ukraine found unconstitutional. The mandate of the NAPC also covers:
- detection and management of conflict-of-interest situations;
- recording and public disclosure of declarations;
- control over timely filing of declarations;
- monitoring of the way of life of declarants.
The bill also obliges the NAPC to develop the procedure for a comprehensive verification of declarations and the monitoring of the way of life of judges, including those of the Constitutional Court, within a month since the law comes into force. Within the following month, the Supreme Council of Justice and the Constitutional Court should agree on the verification procedure, otherwise the verifications concerning judges will be conducted on a general basis.
In addition, the bill defines the specifics of drafting of reports on the breaches committed by judges, including those of the Constitutional Court. For instance, if the NAPC detects indications of an infringement of standards of ethical conduct, prevention and management of conflict-of-interest situations in the conduct of judges, it should inform accordingly the Supreme Council of Justice or the Constitutional Court that will autonomously decide whether to hold the offender liable.
At the same time, the third bill stipulates that if signs of a corruption-related administrative offence are detected, the NAPC forwards the respective report to a court in accordance with the procedure established by the law and informs accordingly the Supreme Council of Justice or the Constitutional Court.
At the time of writing the aforementioned bills have been presented to the Ukrainian president for signature. However, the NAPC has already sent a letter to the head of the State asking to veto bill No. 4460-d.
The Agency believes that the introduction of the restriction of liberty as the most severe of all possible penalties for knowingly failing to submit a declaration or for filing inaccurate information does not constitute a punishment which corresponds to the gravity of the offences. According to the NAPC, the Verkhovna Rada actually recognises that the failure to submit a declaration or the submission of inaccurate information are criminal misdemeanors rather than crimes, which means, in particular, that a corrupt individual may be released from liability due to active repentance. Besides that, the NAPC highlights that in the event of the restriction of liberty the offender will be in a detention centre rather than in prison, which means that he/she will be free to use means of communication and leave the centre with the permission of its head. The NAPC is of an opinion that in those cases where an official does not disclose the information about assets whose value exceeds a million UAH (roughly 36,000 USD) in a deliberate manner, he/she should be punished with imprisonment.