Restrictions on anti-corruption monitoring: what draft law No. 13271-1 provides and the hidden consequences that deputies are silent about

The parliament once again began to “improve” anti-corruption legislation and “fight corruption”, at least on paper. Bill No. 13271-1, which its authors present as “increasing responsibility” for corruption offenses, at first glance gives the impression of a decisive step in the right direction. The justification refers to the need for a balance: between the severity of punishment and the rights of citizens, between the effectiveness of the anti-corruption system and the predictability of law enforcement. But once you read the details, this balance turns out to be quite specific – one that leans towards the interests of those who have already had time to fill their pockets and leave their seats.

Bill No. 13271-1: its content and rationale of the People’s Deputies

Deputies proposed the Law of Ukraine “On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine on increasing responsibility for corruption or corruption-related offenses.” The initiators of the project were more than 90 people’s deputies, among them Oleksandr Tkachenko, Maksym Buzhanskyi, Yuriy Kamelchuk, Pavlo Halimon, Ihor Fries, Georgy Mazurashu, as well as former representatives of the People’s Party of Ukraine – Hryhoriy Mamka and Antonina Slavytska. Some of them are involved in journalistic or criminal anti-corruption investigations.

This draft law was submitted as an alternative to a similar initiative of Serhiy Vlasenko from “Batkivshchyna”, which was previously criticized by the Anti-Corruption Center. In the explanatory note, they noted that the adoption of this project is a necessary step to ensure a balance between effective anti-corruption and compliance with the rights of citizens, in particular, the right to fair, proportionate and predictable enforcement. It is about the introduction of clearly defined periods of storage of information in the Unified State Register of persons who have committed corruption or corruption-related offenses.

The initiators of the law point to the decision of the European Court of Human Rights in the case “Sytnyk v. Ukraine”, which refers to the violation of the right to respect for private life due to the indefinite storage of information in the Register of Corrupt Persons. As the authors explain, the draft law is aimed at eliminating this problem. In particular, the terms of data storage in the Register are established: for administrative offenses – in accordance with Article 39 of the Code of Administrative Offenses, and for criminal offenses – in accordance with the terms specified in Article 89 of the Criminal Code.

In addition, the responsibility for the deliberate entry of the subject of the declaration of knowingly inaccurate information increases. It is proposed to change the threshold values ​​in Article 366-2 of the Criminal Code — from 500 to 750 subsistence minimums, from 2000 to 2500, and also to change the sanctions from “from three to four thousand” to “from four to six thousand” of the relevant units.

Amendments are also being made to Article 216 of the Criminal Procedure Code regarding the change in the size of the object in criminal offenses investigated by NABU detectives. In the first paragraph of this article, it is now clarified that the investigation concerns cases, if the amount of known unreliable information differs from reliable information by more than 2,000 subsistence minimums.

Particular attention is paid to lifestyle monitoring in the explanatory note. The authors suggest establishing that the NAKC carries out monitoring only during the period when the person was in the position defined by the law. This restriction is presented as a “clear delineation of the limits of government intervention” and as a protection of the right to privacy.

In addition, the maximum term of such monitoring is established – no more than four months from the moment of the decision to start it. According to the authors, such a term “ensures predictability, efficiency, proportionality and legal certainty.”

The draft law also proposes to automate the process of submitting declarations: personal information should be uploaded from state registers. If the data obtained from state sources have discrepancies with other documents, the subject of the declaration will not bear responsibility. The same applies to situations where data has been distorted due to technical failures or unavailability of information. The authors explain this with the need to “protect bona fide declarants” and “reduce the administrative burden.”

Separately, the draft law changes the size of the subject in a number of criminal offenses investigated by NABU. This is presented as “improving the order of pretrial investigation” and “updating the criteria of criminal liability.” In particular, amendments are being made to Article 216 of the Criminal Code of Ukraine, which increase the monetary limits of liability. This means that NABU detectives will not be able to investigate cases of unreliable declaration, if the discrepancy in the data does not exceed the new increased limits (instead of 500 subsistence minimums, from now on 1000 or 2000).

The draft law adds a provision that the period of monitoring cannot exceed four months from the date of adoption of the relevant decision. Also, in Article 59, there is a rule that information about individuals who have been prosecuted for committing corruption or corruption-related offenses cannot be stored longer than it is provided by law: according to the Code of Administrative Offenses — for administrative cases, and according to the Criminal Code — for criminal ones.

The explanatory note emphasizes that such changes are a response to the conclusions of the ECtHR and are aimed at bringing the Ukrainian anti-corruption system into compliance with the standards of the European Convention on Human Rights. It is also consistent with the Law of Ukraine “On the Protection of Personal Data” and the principles of limiting the storage period provided for by the EU General Data Protection Regulation (GDPR). Thus, the authors propose to minimize the risks of violation of privacy and unjustified interference in personal life.

In their explanations, the deputies separately note that the introduction of automatic downloading of personal information from state registers when filling out the declaration will reduce the likelihood of errors. At the same time, if the information obtained from the registers does not coincide with other documents, the responsibility does not arise. Similarly, if the declarant made a mistake due to a malfunction of the registers, this will not be a basis for liability. It is also explained that the changes will allow to update the criteria of criminal and administrative liability in the field of declaration, to improve the procedure of pre-trial investigation, to eliminate gaps in information storage periods and monitoring periods.

The final provisions provide for changes to Article 290 of the Civil Procedure Code: instead of 500, 750 appears. In the Law “On Prevention of Corruption”, a new paragraph appears in the first part of Article 51-4: lifestyle monitoring is carried out exclusively during the period of a person’s tenure in the positions specified in paragraph 1, subparagraphs “a”, “c”-“e”, paragraph 2, paragraph 4 of the first part of Article 3 of the Law. The subject of monitoring can be only assets, income, expenses, services and other elements of the lifestyle acquired, performed or received during the occupation of these positions.

In justifying the consequences, the authors emphasize humanitarian and human rights aspects. According to them, the draft law aims to “avoid lifelong stigmatization for one-time or minor violations”, “opens up opportunities for returning to professional and social life”, “eliminates excessive interference in private life”. It is also stated that the implementation of the provisions “does not require additional costs from the state budget”, “does not have a discriminatory nature” and “does not carry the risk of corruption”.

It is predicted that the implementation of the proposed norms will have a positive impact on the legal position of the subjects of the declaration, will avoid lifelong stigmatization for one-time or minor violations and will ensure the observance of human rights.

What is actually behind the legislative initiative

The new draft law submitted to the Verkhovna Rada formally increases responsibility for corruption and corruption-related offenses. But behind the facade of an ostentatious fight “against evil” there are subtle adjustments that raise more questions than answers. The draft law declares its intention to increase responsibility for corruption by amending the Code of Ukraine on Administrative Offenses, the Criminal Code, the Criminal Procedure Code, the Civil Procedure Code and the Law of Ukraine “On Prevention of Corruption”. Some of the innovations really strengthen the sanctions — they are about increasing fines and threshold amounts for false declarations.

However, it is precisely in the key, system-forming provisions that the norms that actually undermine the principles of anti-corruption control are laid down. They significantly narrow the capabilities of the National Agency for the Prevention of Corruption in monitoring after dismissal from office, reduce the duration of control, limit the powers of NABU and de facto nullify the effect of the Register of Corrupt Persons as a tool of public control.

One of the central innovations is the amendment of Article 51-4 of the Law “On Prevention of Corruption”, which clearly states: the monitoring of the lifestyle of the subject of the declaration is carried out exclusively during his tenure in office. This provision reshapes the basic logic of the inspection. If previously the NAKC could study the sources of origin of assets regardless of when they were registered, now the entire monitoring system is limited exclusively to the official term of office. This creates an official loophole, which the official can use to remove the property from control: delay the registration until the moment of release — and the inspection will become legally impossible.

In addition, this provision makes it impossible to study those cases where the assets were acquired earlier, but registered later – a scheme that is widely used to cover up corrupt enrichment. The law thus deprives itself of the tool of deep verification: as soon as a person has gone beyond the boundaries of an official position, he automatically drops out of the state’s field of view.

Another change to Article 51-4 is the establishment of a time limit for monitoring: no more than four months from the moment of the decision. Formally, this is presented as a mechanism to avoid delays in procedures, but in practice it means an almost guaranteed impossibility to complete a comprehensive investigation in complex cases, especially if they involve international cooperation, examination of offshore, transactions, legal entities and related persons. That is, such a term does not correspond to the realities of the investigation of complex schemes, especially if international assistance, verification of transactions, related persons is required. This can lead to the formal closure of inspections due to the expiration of the deadline, even if there are signs of violations.

This provision effectively blocks the possibility of detecting illegal enrichment, which was formalized after dismissal, but has signs of origin from corruption schemes during the tenure of office. In practice, this means: if the official transferred the assets to relatives or issued them after dismissal, the NAZK will lose the right to check. Previously, the law did not limit the NACP in the time frame of the inspection, focusing on meaningful circumstances, and not only the temporary status of the official. That is why a serious gap is created, which allows high-ranking officials to withdraw assets from monitoring, delaying their registration until the moment of release.

Therefore, the law creates a restriction that does not correspond to reality. The complexity of the schemes requires time, but instead of strengthening the investigative toolkit, an artificial, hard time limit is introduced, which has neither organizational nor legal logic behind it. This is a direct way to close inspections on a formal basis: the term has expired.

In addition, the draft law introduces a change related to the functioning of the Unified State Register of persons who have committed corruption or corruption-related offenses. It is determined that information about a person should be kept in this register no longer than the duration of the administrative penalty — if the violation is administrative, or until the repayment/removal of the criminal record — if the violation is criminal.

In practice, this means the automatic clearing of a person’s reputational background after the end of the formal term of punishment. Such a norm did not exist until now. The register performed the function not only of accounting, but also of reputational memory — information was stored and could be consulted by personnel commissions, employers, the media, and the public. Now, after several years, the person disappears from the register formally, without any justification from the public interest.

The reference to the decision of the ECtHR in the case “Sytnyk v. Ukraine” looks manipulative: the ECtHR did indicate the inadmissibility of indefinite storage without the possibility of deletion, but in no way required the automatic erasure of all data after a minimum period. Instead of flexible regulation, formal oblivion is introduced, which makes the state short-sighted.

One of the most technically detailed changes is the new wording of Article 366-2 of the Criminal Code, which refers to the intentional declaration of false information. It directly affects the work of NABU and detectives investigating cases against high-ranking officials. The law increases the threshold amounts from which criminal liability begins:

– for the usual form — from 500 to 750 subsistence minimums (from 1.51 to 2.27 million hryvnias);
– for severe cases, from 2,000 to 2,500 subsistence minimums (from 6.04 to 7.56 million hryvnias);
– the maximum gap — from 4,000 to 6,000 subsistence minimums (from 12 million to 18 million UAH).

These changes are technical in nature and do not compensate for the loss of effective control caused by the limitations described above. At the same time, these figures directly affect the powers of NABU: under the new version of the Criminal Procedure Code, NABU detectives will be able to investigate only those cases in which the amount of unreliable information exceeds 2,000 subsistence minimums. Therefore, from the NABU’s point of view, all cases involving amounts from 750 to 2,000 subsistence minimums fall out, which is tens of millions of hryvnias in aggregate. These cases will now be investigated not by an independent anti-corruption body, but by the SBI or other structures that may be influenced by the political situation.

Note that civil confiscation is a tool that allows illegally acquired property to be returned to the state without a court verdict against a person, if its value clearly exceeds income. The draft law lowers the threshold amount from which criminal liability begins to 2,750 subsistence minimums. At first glance, this looks like a strengthening, but in practice it blocks some cases for consideration in a civil procedure: because as soon as the case falls under criminal proceedings, the mechanism of simplified civil confiscation is no longer applicable. This means that the state loses a quick and effective mechanism for the return of illegal property in cases where the evidence base is sufficient for civil but not sufficient for criminal prosecution.

As you can see, under the guise of slogans about “increasing responsibility”, a draft law is being promoted that significantly weakens the key tools of anti-corruption control in Ukraine. Formal changes—increasing fines and liability thresholds—are accompanied by regulations that systematically undermine the substantive essence of the fight against corruption.

Under the guise of increasing fines and clarifying the limits of liability, the draft law introduces a number of norms that actually exempt former officials from control. Limitation of lifestyle monitoring only to the period of tenure, four-month limit for inspection, limitation of the period of stay in the register of corrupt persons — all this opens new rifts for those who are used to playing by their own rules. And if the goal is really to strengthen the fight against corruption, then why are the mechanisms at the center of the draft law that allow you to quietly exit the game, having managed to remove assets beyond the limits of accountability?

This whole process is accompanied by the narrowing of NABU’s powers, raising the thresholds for criminal liability for false declarations, and creating legal grounds to avoid punishment if discrepancies arose as a result of “errors” in state registers. As a result, we do not have increased responsibility, but a detailed mechanism for legalizing the stolen goods after dismissal from office. The bill introduces new rules that allow high-ranking officials to avoid audits, dispose of assets out of control, and count on automatic clearing of their public reputations.

Collectively, these changes contradict the logic of anti-corruption control and open the way to the legalization of corrupt property by postponing its registration until the moment of release. Thus, this draft law is not a tool to fight corruption, but an instruction on how to avoid punishment while remaining within the legal field.