MPs adopted in the second and final reading with 307 votes in favor of Draft Law #4651 on Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine on Improving Responsibility for Declaring Inaccurate Information and Failure to Submit a Declaration by a Person Authorized to Perform State or Local Self-Government Functions (dated 27.01.2021).
Authors: On January 27, the President signed a decree enacting the decision of the National Security and Defense Council of Ukraine «On the Draft Law “On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine to improve responsibility for declaring inaccurate information and failure of the subject of declaring to submit the declaration of a person authorized to perform the functions of the state or local self-government”». The bill 4651 was submitted by the President as urgent, on January 27.
Main idea and advantages: The draft law provided for the improvement of the provisions of the legislation, which establishes the responsibility for declaring inaccurate information and failure to submit a declaration, as well as the strengthening of such responsibility. The bill, in particular, provides for the punishment in the form of restriction of liberty or imprisonment for inaccurate declaration and failure to submit a declaration. Such responsibility will help strengthen the fight against non-submitting accurate declarations. It is important that the Committee took into account amendment № 11 (submitted by the Speaker of the VRU Dmytro Razumkov) and proposes to include Articles 366-2, 366-3 of the Criminal Code of Ukraine as corruption-related offenses, because in the sense of Article 1 of the Law of Ukraine “On Prevention of Corruption” these offenses are not corrupt.
Previously, the Main Scientific and Expert Department concluded that declaring inaccurate information and failing to file a declaration does not fall under the definition of a “corruption criminal offense”. Potential problems: On May 6, the Venice Commission and the Directorate General of Human Rights and Rule of Law of the Council of Europe issued the Urgent Opinion on the draft Law amending certain provisions of the Code of Administrative Offences and the Criminal Code of Ukraine regarding the liability of public officials for inaccurate asset declaration (4651 dated 27 January 2021). The urgent opinion is generally positive. But the Venice Commission found it regrettable, that the proposed increase of sanctions will be applicable only to the next declaration cycle (1st of April 2022).
At the same time, the Venice Commission reiterated that “while having imprisonment as a sanction under Articles 366-2 and 366-3 may have a useful deterrent effect, in practice the anti-corruption bodies and the courts in Ukraine should apply a gradual approach, in line with the principle of proportionality”. So, the imprisonment is considered by the Commission as “a penalty of last resort”. The Venice Commission made one more important remark. It stated, that “higher sanctions alone do not solve the problem of corruption. Equally important – and probably more important – is the effective implementation of anti-corruption legislation. The increase in the level of sanctions will have no effect if corrupt public officials enjoy de facto impunity if appropriate investigative mechanisms are not in place, or bodies prosecuting or adjudicating such cases are not professional, independent, or active enough”. Therefore, changes to the legislation are important, but they cannot replace the professional and effective work of anti-corruption and law enforcement agencies.