Is there a property in the declaration? And if we find it in the registry? Or new methods of checking of declarations (pressure) of NACP

Is there a property in the declaration? And if we find it in the registry? Or new methods of checking of declarations (pressure) of NACP 150 150 Esquires

On August 31, 2021, the National Agency for the Prevention of Corruption issued Decree No. 553/21 “On Approval of the Procedure for Monitoring the Completeness of the Declaration Completion of a Person Authorized to Perform State or Local Self-Government Functions”, registered in the Ministry of Justice on September 14, 2021, No. 1208 / 36830.

This procedure significantly changes the approach for verification of declarations that has existed since the introduction of electronic declaration. In my opinion, this Decree contradicts the legislation and introduces an ineffective procedure for checking declarations. At the same time, the NACP actually creates additional levers of influence on the subjects of declaration and their family members, probably aiming to increase artificially the number of identified “violations” and indicators of the effectiveness of its work.

What has changed and what does the Law say?

The control over the correctness and completeness of filling in the declarations was carried out automatically during the filling in the declarations and had the goal to help the declarant in avoiding mistakes. For example, do not omit any required fields in the declaration or specify incorrect characters. If the declarant made such mistakes or omissions, the system did not allow to submitt the declaration until they were corrected, defining them as errors.

In addition, the system automatically “pulled up” the information reflected in the previous declarations, including regarding the movable and immovable property, in case of choosing the function “Create a new declaration based on this one”. Such control identified “red markers / fields” for the declarant to avoid inaccuracies. Such automated control actually contributed to the high-quality and complete filling of declarations, avoiding unnecessary bureaucratic procedures in the future (for example, when preparing and providing explanations to the NACP).

The existence of such functionality on the NACP portal / system at least helped the declaring subjects to avoid making formal inaccuracies that did not have any corruption component.

The main approaches to the control and checking the declarations are defined in the Law of Ukraine “On the Prevention of Corruption”. In particular, it is referred to three types of control that the NACP must carry out according to the declarations:

  • monitoring of the timely submission;
  • monitoring of the proper and complete filling;
  • logical and arithmetic check

In addition to these three types of control, the Law also provides for full check of declarations. Such a procedure is the most complex, because within its limits the reliability of the declaration and the accuracy of the assessment of declared assets, the presence of signs of a conflict of interest, the groundlessness of assets and illicit enrichment are checked.

However, by the above procedure, NACP artificially divided a common type of control, defined in the law as “control of the correctness and completeness of filling,” into two separate ones:

  • control of the correctness of completeness of filling” will be carried out automatically during filling in the declaration;
  • “control over the completeness of filling in the declaration” will be carried out after the submission of the declaration and will consist in reconciling the declaration with other Ukrainian state registers and databases.

Within the framework of the same control, NACP, after the stage of automated checking through specific employees, will check each revealed discrepancy in a “manual” mode. If there are signs of inaccurate declaration, such employee will compile a reasoned conclusion to NABU or another law enforcement agency or draw up a protocol on an administrative offense and send it to court.

However, the Law of Ukraine “On Prevention of Corruption” does not provide any “control over the completeness of filling in declarations.” NACP artificially divided one cohesive type of control into two, contrary to the requirements of the current legislation. This creates the first problem of the formal inconsistency of the new procedure with the legal provision of the above Law.

In addition, the NACP attempts to hide this procedure and combine it with another one defined in the Law, namely, monitoring the lifestyle of the subjects of the declaration, intended to reveal the discrepancies between the declared and the real lifestyle of the declarant. However, the Law provides only a general definition of the concept of “lifestyle monitoring” and does not establish procedures for its implementation. According to the Law, the monitoring procedure should be established by the NACP. However, such a procedure has not yet been established and does not exist.

Therefore, currently the priority of the NAPC in this procedure will be to find disagreements with an undefined list of state registers. In addition, such a check will be carried out without established rules, which will lead to the random use of the granted powers and the creation of pressure on individual subjects of declaration (determined by the NAСP in the “manual” mode). For example, NAСP specialists will be able to send requests to other persons regarding the mandatory provision of information, including those with limited access.

Such actions actually contradict the Law and the Constitution, despite the fact that the NAPC has formally chosen different names for the subject of analysis, control or check. Indeed, according to the Law, it is the complete check of the declaration that consists in identification the reliability of the declared information. Accordingly, the accuracy of the declared information should be checked within the framework of a full check of the declarations. At the same time, NAСP, having formally renamed the validity check to check the “completeness of filling in” the declaration, actually began to duplicate these procedures.

In our opinion, in this case, there will be interference in the personal and family life of the declarant, violation of the rights guaranteed by the Constitution of Ukraine and the Convention for the Protection of Human Rights and Fundamental Freedoms. Interference with privacy cannot be arbitrary and in the future will potentially lead to an appeal against such actions in the courts.

What are the risks?

First of all, with the introduction of such an approach, NACP wants to detect an arithmetically greater number of cases of deliberate non-declaration and “check more declarations”. The new NACP procedure unjustifiably gives priority to identifying the simplest cases of non-declaration of assets prior to working on identifying an unreasonable increase in the assets of employees or identifying conflicts of interest in them (this was the priority that was determined when the electronic declaration system was introduced in Ukraine). Rhetorical is the question of what will have a greater impact on the state of corruption in Ukraine – identifying officials who did not declare the asset specified in the register, or unreasonably enriched themselves in their position and hid such assets due to more complex steps.

With the adoption of the power by the Decree, the possibility to get under the “watchful eye” of the NACP bodies, and in the future representatives of law enforcement agencies, as well as close familiarity with the realities of the judicial system of Ukraine, quickly arose. After all, even insignificant errors and inaccuracies lead to negative consequences for the declarant and his family members.

Checks can be considered as quick because they will be completed within 35 business days (as compared to120 calendar days for full checks). It should be noted that the NACP has provided for an algorithm of actions when detecting signs of illegal enrichment or unfounded assets within the framework of such inspections. However, it remains only to guess how such signs can be detected if they are not the subject of this procedure.

So, the new procedure is another attempt by the NACP to simplify its life by avoiding certain procedural issues, an attempt to avoid liability in the future and shift the burden of proving innocence directly onto the declaring subject. Anyone can get under such a “quick” NACP check, since a simple mistake in spelling, a technical error or a reliance on system functionality (automatic detection of errors, “pulling up information” from previous declarations) when filling in a declaration can lead to falling into the category of “risky”…

What to do?

In our opinion, this approach of the NACP regarding the division of “control over the correctness and completeness of filling in declarations” into various procedures is at least irrelevant and conform neither formally nor in essence with the provisions of the Law of Ukraine “On Preventing Corruption”. Therefore, if such an approach is applied to the subject of declaration, it is quite reasonable and the most obvious to initiate the cancellation of the procedure, results and decisions of the authorized persons of the NACP in court.

Proper legal support of such a procedure, applied to the declarant by the agency, will contribute to the formation of convincing evidence of the unlawfulness of the actions of the NACP representatives and will considerably help in resolving this situation in favor of the declaring subject or even avoid bureaucratic procedures, which are undesirable for a client. The ESQUIRES team already supports cases of this category. Our algorithm of actions, first of all, is aimed at avoiding negative consequences for a client, groundless accusations of corruption offenses and, as a consequence, the risks of getting into the Register of corrupt officials.

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