A bill that reinstates penalties for officials who lie in their asset declarations should be good news for Ukraine’s battle with corruption. Instead, it has provoked a backlash from civil society activists, who say the punishment is too meager, making it easy to get away with graft.
The bill, which was approved by parliament in the first reading on Dec. 4, ostensibly seeks to resolve the problem created by an Oct. 29 Constitutional Court ruling that eliminated previous, more severe penalties for lying in declarations. The decision also destroyed the entire asset declaration system by depriving the National Agency for Preventing Corruption (NAPC), which is tasked with checking declarations, of most of its powers.
Anti-corruption activists lambasted the new bill because it imposes extremely mild penalties — fines, community service and restrictions on freedom that do not include imprisonment. Meanwhile, the bill does not restore the NAPC’s authority to run the asset declaration system.
Moreover, the new bill does not resolve the underlying problem of the discredited and allegedly corrupt Constitutional Court, which can still cancel any new penalties for lying in declarations and dismantle the rest of Ukraine’s anti-corruption infrastructure.
The authorities’ failure to provide a viable solution for the Constitutional Court crisis may also deprive Ukraine of Western funding.
In a Dec. 4 video address, President Volodymyr Zelensky said that he was happy with the bill’s approval, although he would like the penalties to be more severe. The President’s Office did not respond to a request for comment.
Mild penalties
“This is an attempt to deceive all Ukrainians,” Oleksandra Ustinova, a lawmaker from the 20-member Holos (Voice) faction, told the Kyiv Post on Dec. 8. “When they say that they are reinstating criminal responsibility, this is a lie.”
Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, argued on Facebook that “voting for the bill in this format is lawmakers’ corrupt collusion against their country.”
“The lawmakers did what the Russians recommended – they told Western ambassadors to f**k off,” he added.
According to the new legislation, if an official deliberately conceals assets worth between Hr 1.3 million and 9 million ($46,000 and $318,000), they can be fined between Hr 42,500 and 51,000 ($1,500 to $1,800). Alternately, they can be sentenced to between 150 and 240 hours of community service.
Those who fail to declare assets worth over Hr 9 million will face a fine of between Hr 51,000 and Hr 85,000 ($1,800 to $3,000), between 150 and 240 hours of community service or up to 2 years of “restrictions of freedom” that do not include imprisonment.
The bill does not envisage jail time for lying in declarations. The previous law, which the Constitutional Court canceled, stipulated fines, community service and up to two years in jail.
NAPC Chief Oleksandr Novikov urged Zelensky to veto the bill.
“A corrupt official may intentionally hide that he owns a (Pablo) Picasso painting or the most expensive yacht in the world and get at most two years at a dormitory,” Novikov said on Dec. 4, referring to the “restriction of freedom” punishment, which involves living in a dormitory. “I’m sure this proposal does not meet Ukrainian society’s demand.”
Restrictions on freedom
According to Ukrainian law, “restrictions on freedom” are a special kind of punishment similar to community service.
People sentenced to such restrictions are required to work at special penitentiary dormitories and have the right to leave such dormitories in some cases. They also have the right to use mobile phones and television sets and have money and personal property.
After six months, a convict may be allowed to return to live at their home and check in at the dormitory several times a week.
Under Ukrainian law, it is also very easy for officials to evade such restrictions on freedom by claiming to have sick relatives and coming up with other excuses, according to Ustinova.
Ustinova argued that a very high threshold was set for “restrictions on freedom” (Hr 9 million), which means this penalty will almost never be applied. In most cases, convicts will be sentenced to fines or community service — the lightest penalties in Ukraine.
The bill also classifies lying in asset declarations as a misdemeanor, not as a crime, and officials will not even have a criminal record for incorrect data in declarations, Ustinova said.
Yet another problem is that former officials are exempted from responsibility for lying in declarations under the bill.
No solution to the crisis
Since the Constitutional Court ruling, several other bills have been submitted to parliament to resolve the impasse with the Constitutional Court. However, none of them have been passed.
On Oct. 30, Zelensky submitted to the Verkhovna Rada, Ukraine’s parliament, a bill seeking to fire all incumbent Constitutional Court judges and treat their decision on asset declarations as null and void.
On Nov. 2, Verkhovna Rada Speaker Dmytro Razumkov and about 100 other lawmakers submitted a bill to reinstate the asset declaration system in the same form as before the Constitutional Court decision. Anti-corruption activists and legal experts lambasted the bill, saying that the Constitutional Court will again immediately recognize it as unconstitutional and that it does not solve the underlying problem.
On Nov. 3, lawmakers from the Servant of the People and Holos factions submitted a bill to temporarily block the Constitutional Court’s work by increasing its quorum from 12 to 17 judges. Currently, three of the 18 Constitutional Court seats are vacant.
Four Constitutional Court judges who did not support the cancellation of the asset declaration system – Serhiy Holovaty, Oleh Pervomaisky, Viktor Kolesnyk, and Vasyl Lemak – said on Nov. 5 that they would temporarily refuse to attend court hearings. This effectively blocked the court’s work due to a lack of quorum.
However, the Constitutional Court announced that it would resume work on Dec. 8. It’s not clear whether it indeed resumed hearings. This implies that the court may deal further blows to Ukraine’s anti-corruption infrastructure.
Ustinova said that Zelensky’s rhetoric targeting the Constitutional Court a month ago was “pure populism” and that his failure to solve the crisis shows that he “does not run the country.”
Western reaction
The Ukrainian authorities’ weak reaction to the destruction of a crucial anti-corruption institution may disrupt Western lending and even lead to the suspension of visa-free travel with Europe.
Mykhailo Zhernakov, head of legal think-tank DEJURE, told the Kyiv Post the International Monetary Fund (IMF) is unlikely to disburse the next payment in its ongoing lending program to Ukraine in the near future. Before the Constitutional Court crisis, Ukraine was scheduled to receive the next payment by the end of 2020.
The IMF said it could not comment on the issue.
“G7 Ambassadors met today with Speaker Razumkov and Rada faction leaders, encouraging close cooperation with the Office of the President to urgently reinstate with a firm legal basis the anti-corruption provisions recently declared unconstitutional,” the ambassadors said on Twitter on Dec. 3.
“In particular, it is important to ensure that penalties for false and unfiled asset declarations will not be weakened and effectively deter corruption, and that NABU’s independence and effectiveness is upheld by legislative amendments by December 16.”
