Ukraine’s political elite has been dragging its feet on introducing the new system for nearly a year, and it was only on Aug. 11 that President Petro Poroshenko finally publically stated that the launch would go ahead as planned. He said that “obvious weaknesses with the software” would not delay the new e-declarations system.
But it seems the government and the president might be counting on those same weaknesses to make sure officials who submit false information to the system go unpunished.
Fear of e-declarations
The system of e-declarations has rightly struck fear into the Ukrainian political elites: Many members of parliament, judges, prosecutors, mid-level officials of executive bodies and other public officials reportedly own assets with values wildly incompatible with their official salaries.
The new e-declaration system is supposed to make it harder to hide those assets. Officials must include cash and corporate rights, as well as property held in the names of their spouses. Moreover, the legislation introducing the e-declarations stipulates that those who submit false information in their declarations will face criminal charges.
Officials who have questionable assets are thus caught in a bind: if they declare them honestly, they may end up facing charges of embezzlement or corruption, while if they are found to have submitted false information they could also end up in the dock.
To make matters worse for them, charges against senior state officials of illicit enrichment or making false statements in declarations will now be investigated by the National Anticorruption Bureau of Ukraine, which is already demonstrating independence and effectiveness.
The threat of being brought to book due to their assets is a nightmare for politicians and other senior officials. And that nightmare starts with the launch of e-declarations.
Delaying tactics
Not surprisingly, the political elites have repeatedly trying to derail the introduction of e-declarations. There have been three such attempts in the last nine months alone.
In December 2015, parliament tried to postpone the launch of e-declarations by slipping an amendment into the law on the state budget (the amendment was quietly introduced on the evening before the vote). However, the ruse was noticed, and under pressure from Ukraine’s foreign partners and the public, the Presidential Administration was forced to cancel the amendment.
To “correct the mistake,” parliament then adopted a draft law by lawmaker Andriy Denysenko, which postponed the launch of the e-declaration system until 2016 and abolished criminal liability for submitting false information in the declarations.
But again, under pressure from Ukraine’s international partners, the president vetoed Denysenko’s bill.
The current version of the law on e-declarations was only adopted under strong pressure from the European Union and civil society. It was passed in March and made it a crime to willfully fail to disclose ownership of significant assets.
Passing the law was also the final condition Ukraine had to meet to qualify for a visa-free regime with the EU.
But in another delaying tactic, the government postponed the establishment of the National Agency for the Prevention of Corruption, which was to be responsible for launching the e-declaration system and verifying submitted information. Only four out of five of the verification commissioners were appointed in March.
In order not to give the government yet another opportunity to block the introduction of e-declarations, the software for the system was developed by an independent contractor in accordance with technical specifications laid out by the World Bank and United Nations Development Program. The development of both the software and necessary hardware for the system were funded by the UNDP.
In the end, on June 10, the anti-corruption agency announced that the system of e-declarations would be launched on Aug. 15 for top officials, judges, and prosecutors (50,000 people in total), and on Jan. 1, 2017 for all other declarants.
Anti-corruption priority
Ukraine’s international partners see the launch of e-declarations as a priority for Ukraine in its fight against ingrained corruption in the state.
Both the IMF and the EU have constantly reminded 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, Ukraine’s political elites ran out of space to maneuver, and were unable to postpone the launch of the e-declaration system to a date later than Aug. 15.
However, they are still trying to find a solution to their problem.
It seems that the country’s politicians are ready to tolerate the value of their assets being made public, but still hope to sidestep the possibility of being prosecuted for making false declarations. The politicians are now preparing to launch the system of e-declarations in a way that would guarantee their impunity.
How are they going to do it?
According to the regulations on the operation of the e-declaration software system adopted by the National Agency for the Prevention of Corruption, the system has to have state certification of proper data security to be able to function.
Should the system not receive such certification, all submitted declarations will have no 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. Neither will they be held to account if their declaration contains evidence of illicit enrichment.
Not surprisingly, the system of e-declarations has not yet obtained a state certification on data security.
The decision on whether to grant the certificate depends on the State Agency for Special Communications, which is directly subordinate to the Cabinet of Ministers, and which is said to be informally controlled by National Security and Defense Council Secretary Oleksandr Turchynov. According to the action plan for launching the e-declarations system adopted by the National Agency for the Prevention of Corruption and agreed upon with the Agency for Special Communications, the certificate is supposed to be granted by Aug. 12.
‘Small’ technical details
But again not surprisingly, the Agency for Special Communications is giving indications that the certificate of data security will not be granted to the e-declarations system on schedule.
The agency proposed to hire a state-owned company rather than an independent commercial firm to perform a data security audit of the e-declaration system. Moreover, the state-owned company the agency wants to hire is under the direct control of — the Agency for Special Communications.
Next, the Agency for Special Communications started to claim that the system of e-declarations was only 60 percent ready, and thus may not pass the data security audit in time. This is brazenly misleading: The module for the submission and publication of declarations, which is the part of the system that requires certification, is 100 percent ready and has been tested by both the Agency for Special Communications and the UNDP.
The module for the automatic certification of declarations is the one that is not ready, because it requires access to a number of state databases and registries that the National Agency for the Prevention of Corruption does not yet have.
Finally, the Agency for Special Communications came up with the idea of not just doing an audit of the data protection system, but the whole program code of the e-declaration software. In short, it is becoming obvious that the agency is making a series of excuses for not granting the e-declarations system its data security certificate in time.
If that happens, the e-declarations system will be launched on Aug. 15 without proper certification, which means anyone who submits declarations will not run the risk of being prosecuted either for submitting false information or for revealing ill-gotten gains.
Ukraine’s elites had hoped that the small technical detail of the lack of a certificate of data security for the e-declaration system would go unnoticed. They planned to present the launch of the system as a huge success, and then to act surprised when the legal impotency of the e-declarations became obvious.
But this plan has since been foiled, as the EU delegation to Ukraine has already made a statement requesting that the Ukrainian government grant the system of e-declarations all the certificates it requires for its launch on Aug. 15.
Plan B
However, Ukraine’s elites are not giving up yet. Plan B is to use the Constitutional Court to take the sting out of e-declarations. The court is already considering a submission by 50 lawmakers (former members of the Party of Regions) requesting that it declare the key legal provisions underpinning the e-declaration system unconstitutional. In particular, the submission questions whether making it a crime to give false information in an e-declaration is constitutional.
Should the court rule in favor of the lawmakers, the legislation introducing e-declarations will be cancelled without the need for it to be referred back to parliament, effectively making the whole system unusable.
So the true nature of the elites that gained power due to the EuroMaidan Revolution, which drove President Viktor Yanukovych from power on Feb. 22, 2014, will become obvious on Aug. 15, 2016.
If they are sincere in their promises to the people of Ukraine that they will tackle grand-scale political corruption, if they care about the visa-free regime with the EU, and IMF money for the state budget, the system of e-declarations will be launched with all of the certificate that will ensure that it can operate as was designed to.
But if the e-declaration system is not launched properly, it will be obvious that the elites have chosen to secure their illegal assets, rather than work for the good of all Ukrainians.
Anastasia Krasnosilska is project manager for the Anti-Corruption Action Center in Ukraine.
