Editor’s Note: The following op-ed represents a joint position of the 11 organizations listed below.
On Dec. 4, the Verkhovna Rada, Ukraine’s parliament, adopted law #4460-d aimed to restore criminal liability for false statements in asset declarations. Speaker Dmytro Razumkov explained that this was the compromise reached by all parliamentarian factions in order to repair damages to the assets disclosure system following the decision of the Constitutional Court.
However, the adopted legislation compromises the system of asset disclosure and significantly weakens criminal liability comparing to the legal framework established in 2014-2016. The latter was positively supported by civil society and key international partners, including the European Union and the International Monetary Fund.
The head of the National Corruption Prevention Agency calls on President Volodymyr Zelensky to veto draft law #4460-d, as it does not envision imprisonment as a sanction for failure to submit asset declaration or submitting intentionally false statements.
Until the Constitutional Court decision on Oct. 27, 2020, it was a crime to submit an intentionally false statement to asset declarations about assets worth Hr 500,000 (approximately $17, 000). The criminal code envisioned either a fine of Hr 42,500 – 51, 000 (approximately $2 000), or public works for 150-240 hours, or imprisonment for up to 2 years for such a crime, depending on the severity of the offense.
By adopting draft law #4460-d, parliament failed to introduce imprisonment for submitting intentionally false statements to asset disclosure forms and increased a monetary threshold for the crime from Hr 500, 000 to Hr 1 million (approximately $35,000). For a false statement in a declaration from Hr 1 million to Hr 9 million (approximately $318, 000) a new article of the Criminal Code foresees a fine from Hr 42,500 to Hr 51, 000 (approximately $2,000) or public works from 150 to 240 hours with the possibility of deprivation of the right to hold certain positions. If the difference between real and declared information exceeds Hr 9 million, the fine is increased from Hr 51,000 to Hr 85,000 (approximately $3,000), public works or restriction of liberty up to two years are foreseen.
Instead of imprisonment, parliament introduced the sanction of “restriction of liberty,” which has limited enforcement on practice and is about to be changed for probation procedures under the upcoming criminal justice reform foreseen for the next months. Restriction of liberty is a soft type of sanction. It means serving a sentence in special correctional centers without isolation from society and may be lifted after six months of serving the term.
The new provision of the Criminal Code also has a shorter statute of limitation of two years. It means that law enforcement authority and the court will have a shorter period for investigation and trial for false statements in asset declarations with a threshold from Hr 1 million to Hr 9 million, which will complicate the investigation of top corruption cases, especially if undeclared assets are in foreign jurisdictions.
The adopted provisions fail to impose deteriorative and dissuasive effect for non-submission asset declarations or provide false information. Thus, the system of asset declarations will lose public trust and reliability. In the case of top-level corruption, such provisions will only encourage impunity. With such weak sanctions for false statements in declarations, it will be more difficult to receive a full picture on the assets of any officials and to reveal the crime of illicit enrichment through analysis of asset declarations. For public officials, it would be much easier to hide assets with the low risk to be liable for that or to have soft punishment rather than to show all the assets and to allow identification of illicit enrichment or unexplained wealth with more severe sanctions.
Anti-Corruption Research and Educational Centre NaUKMA
All-Ukrainian Association Automaidan
Centre for Economic Strategy
Chesno Movement
Kharkiv Anticorruption Center
Anticorruption Action Centre
DEJURE Foundation
Transparency International Ukraine
Institute of Legislative Ideas
Bihus.info team (Kantselyarsʹka sotnya, NGO “TOM 14”)
NGO StateWatch
