E-Declaration or E-Legalisation – Something of a shambles

August 15, 2016

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.

Non Compliance grunge rubber stamp on white background, vector illustration

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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