Ukrainian President Petro Poroshenko on March 27 signed into law a measure that delivers a severe blow to anti-corruption activists and free speech, according to international and national experts.
According to various interpretations of the vague and ambiguous amendments to the income declaration law, they require activists of anti-corruption non-governmental organizations, their contractors, donors, investigative journalists and potentially even anti-corruption protesters to file publicly accessible electronic asset declarations, similar to those now required of state officials.
People’s Front lawmaker Tetiana Chornovol, who introduced the amendments, along with Poroshenko and their supporters, claim that the legislation will increase the transparency and accountability of NGOs.
They argue that they are in line with Western practices, although the Kyiv Post has found that this argument does not stand up to scrutiny.
Given Ukraine’s extremely politicized and corrupt law enforcement, the amendments provide vast scope for abuse, and could be used to fabricate political cases against the government’s critics or restrict their activities.
Some have compared the legislation to the dictatorial Russian law branding NGOs as “foreign agents,” as well as to the Ukrainian laws of Jan. 16, 2014, which severely restricted civil liberties.
Opponents says the amendments target anti-corruption activists even as corrupt top officials still go unpunished.
“For the first time since the (2013–2014) EuroMaidan Revolution, the authorities have openly declared war on civil society by adopting the law on electronic declarations for NGOs,” Mykhailo Zhernakov, an expert at the Reanimation Package of Reforms, said on March 26. “The amendments de facto renew authoritarianism in Ukraine and transform Ukraine into a police state similar to our northern neighbor.”
Crackdown on anti-graft NGOs
The wording of the amendments is so vague that there could be many different interpretations of how they will be implemented.
The amendments, which were backed by all parliamentary parties except for Samopomich and Batkivshchyna, require anyone who “takes part in measures linked to anti-corruption efforts” to file electronic asset declarations. Like state officials, they will have to disclose their assets, including land plots and houses, cash, money on bank accounts, their income, spending and the assets and income of their families.
The amendments are self-contradictory and stipulate two conflicting deadlines for declarations – April 1, 2017 and April 1, 2018.
Potentially the amendments can apply to any activists of anti-corruption NGOs, any journalists who write about corruption, especially those who get anti-corruption grants, and potentially even any protesters against corruption at opposition rallies, the Reanimation Package of Reforms and the Anti-Corruption Action Center believe.
Activists on March 28 protest pressure by the Security Service of Ukraine (SBU) on YouControl, a company that monitors business data and corruption. (Anastasia Vlasova)
The legislation can also apply even to any organizations cooperating with or getting money from anti-corruption NGOs, including donors, lessees, suppliers and printers, argues Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board. This clause could completely block NGOs’ operations, he warns.
Meeting with activists
Poroshenko met with civil society groups on March 27 to discuss the amendments and said he supported the requirement for anti-corruption NGOs and activists to file declarations, though he said such declarations should be different from those of officials, Shabunin said.
But Poroshenko said he was ready to remove the clause requiring all organizations that receive funds from NGOs to file declarations, Shabunin added.
The president said he had agreed to create a working group to change the amendments.
However, activists interviewed by the Kyiv Post see the working group as a stalling ruse that will not result in any actual improvement in the amendments.
Western practice
Poroshenko’s proponents claim that such public asset declarations for anti-corruption NGOs and their activists are a widespread Western practice.
In fact, there is no U.S. law targeting anti-corruption groups specifically, and the disclosure rules for NGOs are far less invasive and comprehensive than the Ukrainian amendments.
U.S. non-profits and lobbying groups usually have to disclose their organization’s income and spending and top employees’ salaries. In contrast with Ukraine, their individual employees do not have to publicly disclose their assets, including land plots and houses, their spending and income, cash and money on bank accounts and the assets and income of their families.
Some of Poroshenko’s proponents have even gone as far as to claim that all U.S. citizens have to file tax declarations similar to those introduced by the new Ukrainian amendments. However, these tax returns are private, not publicly available, and have nothing to do with declarations filed by state officials and Ukrainian anti-corruption activists.
Foreign agents
The new Ukrainian disclosure rules have also been compared with the U. S. Foreign Agents Registration Act (FARA), under which so-called “foreign agents” have to disclose the money they received from foreign governments.
However, the FARA applies to a very limited group of organizations under the control of foreigners or those representing them that are involved in political activities, not to any anti-corruption NGO. It is extremely difficult to prove that someone is a foreign agent, and since 1966 the Department of Justice has not won a single case to brand someone a foreign agent.
Also, U.S. law has not created any obstacles to any “foreign agents,” and even Russian propaganda outlets still freely operate in the United States.
In terms of vagueness and arbitrariness, the Ukrainian amendments are more similar to the Russian law on “foreign agents” passed in 2012. In Russia, the foreign agent law applies to any NGOs that receive foreign funds, and the strict application of this law has led to the destruction of NGOs and civil society in Russia.
Corruption loopholes
Apart from cracking down on anti-corruption activists and journalists, the amendments also provide loopholes for state officials’ corruption.
Yegor Sobolev, chairman of parliament’s anti-corruption committee, said on March 23 that the amendments allowed corrupt officials to delay filing declarations for alleged national security reasons.
The only non-controversial part of the amendments is that they exempt rank-and-file military servicemen from filing electronic declarations.
Declaration collapse
Meanwhile, the e-declaration system itself stopped working shortly after March 20, and the second stage of e-declaration filing has been effectively derailed. The deadline for filing declarations under the second stage, which applies to up to 1.5 million mid-level and lower-level state officials, is April 1.
Prime Minister Volodymyr Groysman on March 29 called on Natalia Korchak, head of the National Agency for Preventing Corruption and a protégé of the People’s Front party, to resign due to the failure, but she said she would not step down.
Another person blamed for the collapse is her deputy Rouslan Radetzky, an ally of Poroshenko.
In February, Ukrainian Special Systems, the state firm in charge of the e-declaration software, refused to administer the declaration system, saying that it was incapable of processing any more declarations. USS said it would have to develop a new system over four years and spend $12 million on it, Sasha Drik, head of the Declarations Under Control watchdog, said on March 3.
She also said that Poroshenko and Groysman would likely use Korchak as a scapegoat and blame her for all the failures, though in fact they themselves are to blame.
The authorities are apparently aiming to destroy the entire declaration system by saying that they need to replace it with a new one, which could take years, Drik argued.
While the declaration system was launched in September 2016, the agency started checking declarations only in February.
So far, the agency has checked just 11 out of the about 100,000 asset declarations filed under the first stage, and not a single official has been punished for them, Anastasia Krasnosilska, an expert at the Anti-Corruption Action Center, said on March 28.
The only result of the agency’s work is its efforts to prosecute anti-government lawmaker Sergii Leshchenko and the Anti-Corruption Action Center for the $333 he received for an anti-graft lecture, and ex-reformist customs official Yulia Marushevska for accepting a $19 bonus. The cases are widely seen as a political vendetta for their criticism of the government.
Previously Ukrainian authorities were accused of sabotaging the launch of the e-declaration system in 2015 to 2016. Poroshenko, Korchak and Radetzky deny trying to sabotage the system.
Meanwhile, the Security Service of Ukraine has refused to disclose its employees’ asset declarations not only to the public but also to the National Agency for Preventing Corruption, citing a state secret.
Attachment: Text of amendments introducing declarations for anti-corruption activists
1(The declaration requirement applies to) individuals who receive
money or property or other aid, including free aid, as part of the
implementation in Ukraine of programs (projects) in the field of fighting
corruption (either directly or through third parties or by any other means
stipulated by a specific program (project),
2(It also applies to) those that regularly and annually perform work or
provide services in the implementation of anti-corruption standards,
the monitoring of anti-corruption policy in Ukraine, and the preparation
of proposals on the formulation and implementation of such policy, if the
funding of or payment for such work or services is carried out directly
or through third parties through aid, including free aid, in the field of
anti-corruption efforts.
3(And it applies to) the heads or members of executive boards or
governing bodies of NGOs, other non-profit organizations that are
involved in activities linked to anti-corruption efforts, the implementation
of anti-corruption standards, the monitoring of anti-corruption policy in
Ukraine, the preparation of proposals on the formulation and implementation
of such policies, and/or those who take part in or join in measures
linked to anti-corruption efforts.
