Administrative liability of top-officials for false declarations also does not apply consequences of the CCU’s decision

The provision on criminal liability of officials for false declarations (Article 366-1 of the Criminal Code) was repealed by the Decision of the Constitutional Court of Ukraine (CCU) dated 27.10.2020 No. 13-p/2020. In fact, however, administrative liability of top-officials for corruption and corruption-related offences was also repealed. Let us explain why it is currently impossible to bring top-officials to administrative liability. What types of liability for corruption are available? Depending on the form and scale of corruption, there are four types of liability:

• disciplinary (admonition, dismissal),
• civil legal (indemnification for losses, collection of unjustifiable assets),
• administrative (penalty, confiscation, disentitlement to hold certain positions or engage in certain activities),
• criminal (imprisoning, fine, disentitlement to hold certain positions or engage in certain activities).

Why does administrative liability fail to work with regard to the above persons? In October 2019, there was a separation of powers between the National Agency on Corruption Prevention (NACP) and the National Police of Ukraine with regard to drawing up reports on administrative offences. In particular, the Agency started to draw up protocols exclusively for top-officials. In the event of a violation being detected, the NACP would submit an administrative offence report to the court and the court would decide whether to bring a person to liability or not. However, according to the CCU’s decision, the NACP was deprived of the right to submit administrative corruption-related offences reports to the court. Thus, the NACP currently may not initiate bringing top-officials to administrative liability for missed deadlines and filing false information during the process of submitting e-declarations, failure to submit information on essential changes in property status, acceptance of gifts, overlapping positions, and offences related to conflict of interests (the COAГ, Articles 172-4, 172-5, 172-6, 172-7, 172-9). The National Police retained the power to draw up administrative offence reports. However, police officers may draw up and submit reports to the court only in respect of lower level officials. Currently, for example, top-officials will not be held administratively liable for untimely declaration filing or receiving a luxurious gift. Who are the officials who are currently capable of avoiding liability?

• the President of Ukraine;
• the Prime-Minister and ministers of the Cabinet of Ministers of Ukraine, deputies thereof;
• Members of Parliament of Ukraine;
• judges and prosecutors;
• members of the High Judicial Council and members of the High Qualifications Commission of Judges of Ukraine;
• members of the Central Election Commission;
• the Head of the National Bank of Ukraine, deputies thereof;
• members of the National Council of Television and Radio Broadcasting of Ukraine, National Commission for Regulation of Financial Services Markets, National Securities and Stock Market Commission;
• members of the Antimonopoly Committee of Ukraine;
• the Head of the State Property Fund of Ukraine, deputies thereof;
• the Head of the State Customs Service of Ukraine, deputies thereof;
• the Head of the State Fiscal Service of Ukraine;
• the Secretary of the National Security and Defense Council of Ukraine, deputies thereof;
• the Head of the Office of the President of Ukraine, deputies thereof;
• other public officers of A and B categories, local government officials of first and second categories.