Government vs civil society in Ukraine: e-declarations for anti-corruption activists still not withdrawn

For almost a year, the government has been pretending to work on a project cancelling e-declarations for anti-corruption activists. Photo: pravda.com.ua 

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It has been almost a year since the Ukrainian president, Petro Poroshenko, declared war on activists fighting corruption in Ukraine. At least that is how activists view the Amendments to the Law of Ukraine on Prevention of Corruption. Introduced in March 2017, the amendments would require anti-corruption activists to submit e-declarations on their assets like it is now required from government officials. While the president later recognized the law as a “general mistake,” a compromise between Poroshenko and the activists was not found in 2017. Moreover, the president’s side proposed to replace the law with legislation which would require expanded reporting for NGOs – a move which Amnesty International said could bring even more controversial results.

According to the amendments signed by the president, anti-corruption NGOs and those assisting them, civic activists who fight corruption, as well as candidates to local councils, or presidential candidates, are required to submit e-declarations on their property and income. The e-declarations are similar to the ones state officials submit, with those failing to do so having to face criminal responsibility. All the above-mentioned persons will be obliged to declare their property in 2018.

Read also: Supporting transparency or fighting it? New law on assets declarations for NGOs raises scandal in Ukraine

The bill was immediately criticized by the EU, the Council of Europe, Transparency International, and Freedom House. The law was regarded as going against the achievements Ukraine has made in the fight against corruption and as an attempt to intimidate civil society and the significant role it has played in the reform process.

“Who would want to run for the next presidential and parliamentary elections with so many young citizens who continue to constructively criticize the lack of reforms and flourishing corruption?” says Oleksandr Lemenov, the leading anti-corruption expert of the Ukrainian reform coalition Reanimation Package of Reforms.

Activists criticize the law as moving Ukraine closer to an authoritarian regime, alleging that the legislation contains mechanisms which can paralyze the work of NGOs. Namely, the law contains vague definitions, and the failure to submit declarations might result in criminal proceeding for the civic activists.

Another dangerous aspect of the law is that it forces the subcontractors of anti-corruption NGOs to submit declarations as well. This can significantly narrow down the number of people who would want to work with such organizations.

However, Yaroslav Yurchyshyn, the Director of Transparency International Ukraine, believes the state will use the law not to prosecute the activists, but discredit them with the financial information they obtained. “For example, when fees of the lawyers who developed draft bills become public, they will be compared to the salaries of soldiers in the ATO zone,” he told.

The law was seen as absurd: because unlike state officials, activists don’t use state funds and therefore don’t need to report to Ukrainian taxpayers. But the latest actions of Poroshenko and the government reveal their dissatisfaction with the involvement of international partners of Ukraine, who cooperate with Ukraine’s civil society and often take on the role of donors, in the reforms process in Ukraine.

In Poroshenko’s recent interview with the Financial Times regarding his draft bill on the anti-corruption court, he defended its prohibition on foreign experts, including donors, receiving a right to veto appointments to the court, which is seen as the final link in the chain of anti-corruption institutions in Ukraine, citing national sovereignty.

“If anybody can imagine that foreign donors will form Ukrainian courts, this is against the constitution, because only the Ukrainian people can have a decisive role in creating the Ukrainian parliament, Ukrainian court system, and, through parliament, the Ukrainian government.”

However, anti-corruption activists say that if independent international experts are prevented from having a decisive say in the appointments, the creation of this court will be just another imitation of reform.

The story of unequal compromises

As Poroshenko has since realized that the bill as it is cannot escape unnoticed by Ukraine’s international partners, nor remain in its current form, bargaining has commenced. A working group to amend the law was created in the Parliament based on the President’s Office.

However, during all the time that Poroshenko and his inner circle were working on the issue, they were actually creating a visage of looking for a compromise. In fact the interests of society were being ignored once again. A number of activists refused to take part in the group from the very beginning:

“They said that it will buy the government time and allow it to present the process as constructive work to fix a situation which arose within the walls of parliament,” explains Lemenov.

Nevertheless, the working group produced two bills proposed by Poroshenko:

  • #6674 “On Amendments to Certain Legislative Acts On Providing Public Information On the Financing of the Activities of Public Associations and the Use of International Technical Assistance.
  • #6675 “On Making the Corresponding Changes to the Tax Code”.

The legislation cancels the e-declarations requirement for anti-corruption activists. However, it replaces it with additional burdens on all NGOs:

“Just one mistake in such a report will cancel the non-profit status of an NGO. The cancellation will be backdated for the last year, meaning the organization will have to pay taxes for the whole previous year as if it had been carrying out profitable activity. There is no such practice anywhere in the world,” says the Director of Transparency International Ukraine, Yaroslav Yurchyshyn.

The Reanimation Package of Reforms published a statement expressing its hope that the Venice Commission’s recommendations on the legislation expected in March 2018 will be taken into account, and calling upon MPs to cancel the electronic declaration requirements.

While civil society organizations raised the alarm, the president’s inner circle announced that a compromise with them had been found. Iryna Lutsenko, an MP from the Petro Poroshenko Bloc, wrote on 6 February 2018 this compromise foresaw a waiver of the requirement for submitting e-declarations for anti-corruption activists as private individuals, and raising the threshold starting from which NGOs would have to report on their activities. She claimed that a result the number of affected NGOs would decrease from 77,000 by “several times.”

However, civil society representatives called out the news, saying that no compromises with them had been reached.

“This is a manipulation. We and dozens of other organizations stand against the crackdown on civil society in Ukraine and narrowing down the space in which it can operate. We will not have one repressive law cancelled at the cost of another one,” wrote the head of the Human Rights Information Centre, Tetiana Pechonchyk.

Her organization was one of the 72 signatories which signed a joint declaration protesting the new bills.

Particularly, the declaration slams the excessive tax reports which not only NGOs but their subcontractors are obliged to submit, which exceed those required from businesses and recipients of public funds, and stresses that the punishment of stripping an NGO of its non-profit status is “pronouncedly punitive in nature and is nothing more than the introduction of a tool for selective pressure on the non-governmental organizations indisposed towards the authorities.“

The signatories claim that under the guise of a care for transparency, such governmental interference in the work of NGOs led to their “almost absolute annihilation” in Russia, Kazakhstan, Azerbaijan, Turkmenistan and others countries.

While the discussions are ongoing, it is becoming apparent that the government’s tactic to play for time is working.

“I think that no one now will vote for these bills [instead of e-declarations]. The President’s Administration and government would play for time and force the activists to submit the declarations,” Lemenov told Euromaidan Press, noting that the amendments which foresee the e-declarations are still in place.

Playing for time is a common practice for the Ukrainian authorities during key processes in the country. The same method was used during work on the creation of the country’s anti-corruption court. While the president comes up with different versions of it which are criticized by civil society and Ukraine’s international partners, time is running, elections are approaching, and fewer chances remain to finalize cases of corruption amongst the country’s top-officials.

Edited by: Michael Garrood

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