Just 55 out of 1.3 million officials’ electronic asset declarations have passed full verification with no cases of illicit enrichment detected. After such a result, nobody should have any illusions regarding willingness of the Agency for Corruption Prevention to pursue anti-corruption reform.
However, the agency’s slackness has recently led even further, allowing all staff of the Security Service of Ukraine, or SBU, including public figures running it, to avoid both public asset disclosure and liability for illicit enrichment.
De jure, all SBU officials still declare their assets, de facto they do so into the secret parallel system with neither the agency, nor the National Anti-Corruption Bureau of Ukraine having any access to it. Moreover, the recently unreformed court under legitimized this violation of the law under questionable pretext.
And this new way to nullify the reform creates a dangerous precedent of pulling certain groups of officials out of the scope of the e-declarations.
Covering up with right goal
The law on corruption prevention envisages additional protection for certain groups of public servants: agents of intelligence bodies, undercover agents, people on positions protected by the state secrecy etc. These are positions in military units or state bodies which carry out investigation, intelligence and counterintelligence. According to the law, submission of asset declarations by these officials should be organized in a way that makes disclosure of their affiliation with the abovementioned institutions impossible. The Agency for Corruption Prevention must adopt the special procedure for such a submission.
Lawmakers were clear: secret agents are to be secured from disclosure of their work, but not against liability for illicit enrichment.
However, in violation of the legislation, the Agency has been failing to adopt the special procedure for more than a year already. Consequently, using the opinion issued by the state expert on secrets, who is also the SBU deputy head, the SBU classified the declarations of all their staff. This includes senior officials, who, apparently, are pretty public figures and have nothing to do with undercover activities. Moreover, the SBU has launched its own closed automatic system of e-declarations. Following the journalistic investigation of Radio Free Europe/Radio Liberty’s “Scheme” program about SBU staff’s luxurious cars, the SBU informed to have themselves verified declarations of their employees and no signs of illicit enrichment have been detected.
The Agency for Corruption Prevention blessed this whole process by approving such a secret system, giving unlawful possibility for SBU management and public officials to hide their assets from everybody.
Trying to put a good face on a bad game, in December 2016-January 2017 the agency prepared draft special procedure for submission of declarations by undercover agents. They even collected some recommendations from the respective state institution. However, since that time draft document is pending.
Failed attempts to restore justice
On Jan. 5, the NGO Anti-Corruption Action Center filed a lawsuit against the SBU and the Agency for Corruption Prevention for classification of the asset declarations of SBU top management and launching of the secret system of processing and storage of SBU’s e-declarations.
The judgment was passed 10 months after the suit was filed: the court rejected all the demands in their entirety.
The court stated that the work on development of the special procedure goes on and SBU’s parallel system and classification of their e-declarations are just forced measures for interim, yet absolutely unlimited period.
Moreover, the verdict articulates that no violations were done by the agency, as lawmakers did not set any deadlines for special procedure adoption, thus allowing this process to be everlasting.
But even more dangerous conclusion is that the court justifies assets of all staff members of investigation, intelligence and counterintelligence bodies to be secret.
This allows a number of other state agencies, as the National Police, Prosecutor General’s Office, State Fiscal Service, National Anti-Corruption Bureau, etc., part of whose personnel does investigation or intelligence to establish their own declaration systems for all staff members and ignore public register of e-declarations.
Should the situation not be addressed promptly, other institutions may be tempted to follow SBU’s example. This has already happened with the military prosecutor’s office, who successfully forced the agency to hide declarations of their prosecutors from public access using the pretext of being under the special protection regime.
Moreover, it would be impossible to bring these officials to justice for false statements or illicit enrichment, as their asset declarations, submitted to any other parallel system, are not recognized as e-declarations by the law.
The domino effect of this judicial decision will water down the whole reform.
What’s Next?
The Anti-Corruption Action Center will appeal this court decision, as it is regarded as having nothing in common with both legal reasoning and justice, up to the Supreme Court – to have grounds to appeal to the European Court of Human Rights.
Simultaneously, close monitoring and conditioning of the international assistance on effective e-declarations verification and bringing corrupt officials to justice for false statements in e-declarations and illicit enrichment is crucial for future of the reform.
In addition, in a strategic perspective it is important to reboot the Agency for Corruption Prevention and its current selection panel to make sure new independent and professional Agency commissioners take over. It is high time to recognize the reform is not working with this Agency composition and rescue it until it is not too late.
Olena Halushka is head of the international relations department for the Anti-Corruption Action Center in Kyiv.
