BY
The 15th August witnessed Ukraine launch its e-declaration
system which obliges senior officials to declare their assets – a significant
attempt at transparency for those atop the cesspit of the Ukrainian State
holding public positions.
Despite much doubt that
it would be launched on 15th August as national legislation required, launched
it was – but not without problems.
The system has been
launched on time – but without certification (Special Connection Service
Certificate) regarding its integral robustness and ability to protect the
personal data it will hold (and it will surely be a magnet for hackers) –
despite a legislative requirement to do so.
At best, it can perhaps
be seen as (and the Ukrainian leadership will want it to be seen as) Ukraine
complying politically with the obligations it has made to the IMF and the
software financing donors – but technically, and perhaps morally, deliberately
creating loopholes and non-compliance issues – at least in the short term
before such matters are rectified.
It should be noted that
the National Agency for the Prevention of Corruption (NAPC) was not keen to
launch the system without it first having received the required certification
by law. Nevertheless both President Poroshenko and Prime Minister
Groisman made it very clear that they expected the launch on 15th August –
without excuses.
This raises questions as the system is not fully
compliant with national legislation – nor for that matter State obligations
more generally when it comes to data protection within any regional and
international instruments to which it may be a party.
It therefore follows
that there will be legal issues when obliging those at the very top to adhere
to a law and e-declaration system that is in itself, not entirely compliant
with the law that created it, nor other overlapping legislation.
How long it will take
the system developers (Miranda) to eliminate the deficiencies within the
programme and subsequently receive certification fully legitimising the system
remains entirely unclear. The cynical and skeptical will naturally err
toward “just long enough”, for there are clearly legal advantages to the
odious, the criminal, and the nefarious elites to submit their e-declarations
now – before matters are put squarely within the law and wiggle
room/exploitation room is therefore removed.
It may be argued, and
probably will be in a court, that the criminal liability for any fraudulent
entries is null and void when forced to comply with a submission requirement on
a system that is not all that national legislation states is has to be.
Alternatively, now
making a full disclosure of all nefariously and criminally obtained assets
previously hidden in years past whilst now almost certainly being able to avoid
criminal responsibility in any e-declaration, can be seen as a possible method
of legalising previous criminality or precariously dubious activity prior to
the system developers putting the technicalities right that would then close
loopholes and bring criminal liability to e-declarations.
Even quality legislation
is not retrospective, so the chances of this deliberately created mess being
straightened out and applied retroactively to any submissions made prior to the
necessary system corrections are slim to say the least – non-existent to be
blunt.
In short, now is perhaps
a deliberately manufactured window to come clean in an e-declaration whilst
there is in effect an e-declaration amnesty pending full system legislative
compliance.
How this shambles will
then effect agencies such as NABU and other anti-corruption bodies is also
unclear – but ramifications can be expected.
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