Today, the text of a new draft law No. 7333 has been published, which proposes to fill the budget with funds stolen by corrupt officials and fraudsters. At the same time, they propose to release the latter from criminal liability.

Why is this not a good idea even in times of war?

War pushes all problematic issues into the background and a ‘truce’ is declared. For example, the High Anti-Corruption Court, with the consent of those accused of corruption offences, transferred about UAH 100 million in bail to the Armed Forces.

How far will this cooperation go?

MPs from the EU and the Servants of the People propose to go further and ‘review the hidden opportunities provided by criminal proceedings in the field of property crimes’ and release corrupt officials from criminal liability for simply returning stolen goods.

This draft law was initiated by Serhiy Alekseev, Oleksandr Bakumov, Mykola Halushko, Serhiy Ionushas, and Sofia Fedyna.

What can be avoided?

The draft law proposes to amend Article 45 of the Criminal Code of Ukraine (hereinafter - the CC), which defines the prerequisite and grounds for exemption from criminal liability due to effective remorse.

In other words, persons who have committed misappropriation, embezzlement or seizure of property through abuse of office (Article 191 of the CC), legalisation (laundering) of the proceeds of crime (Article 209 of the CC), abuse of power or office (Article 364 of the CC), negligence (Article 367 of the CC) and in respect of whom criminal proceedings were opened before 24 February 2022 will be released from criminal liability, provided they compensate for the damage in full.

The amount of damage is determined in accordance with an expert assessment of the value of the property in respect of which the misappropriation, embezzlement, misappropriation through abuse of office or loss through negligence was committed, at the time of such actions.

Who can really get away with it? Spoiler: the Privat case is also being leaked

Do you remember the story about the legalisation of the schemes of the famous developer Mykytas? Back then, the former commander of the National Guard of Ukraine, Yuriy Allerov, was able to make money on housing for military personnel. The total amount of this scheme was UAH 81.64 million.

Allerov was served with a notice of suspicion under Article 191 (misappropriation, embezzlement or seizure of property by abuse of office) of the Criminal Code of Ukraine. That is, if this draft law is passed, he will be able to avoid liability if he compensates for the damage.

This way, corrupt officials will understand that if they fail to steal unnoticed, the maximum they will face is simply to return the stolen goods. This opportunity is open to all those who have committed these crimes and the relevant cases were opened before 24 February 2022.

The former head of the State Reserve Agency of Ukraine, Vadym Mosiychuk, will also be able to return UAH 9.5 million of budget funds. Recently, the Prosecutor General's Office notified him of suspicion of official negligence (part 2 of Article 367 of the Criminal Code of Ukraine).

The investigation found that in 2017, Mosiychuk used this amount to pay for and supply excessive tonnes of motor oil to the state reserve, which was not authorised for financing.

The high-profile PrivatBank case can also be used to leak this mechanism. In 2021, the NABU and the SAPO served suspicion notices of embezzlement of UAH 8.2 billion on the former chairman of the board, his deputy and the head of the interbank operations department of PrivatBank.

Thus, the former CEO of the bank, Oleksandr Dubilet, who is suspected of embezzling PrivatBank's funds shortly before its nationalisation, may simply ‘pay off’.

To date, the Privat case has recorded $250 million in losses, but more than $5 billion has actually been stolen.

The moral for corrupt officials here is this: steal, but don't spend it all at once to buy your way out of jail.

Why should the draft law be passed in this form?

This approach of lawmakers cannot be implemented. And here's why.

Firstly, the new provisions are inconsistent with the general logic of exemption from criminal liability due to effective remorse. According to the Criminal Code, such a measure applies only to persons who have committed a criminal offence or a negligent minor crime.

Instead, the draft law proposes to exempt from liability persons who have committed not only such criminal offences, but also serious and especially serious intentional crimes.

In addition, under current law, this type of exemption from criminal liability does not apply to corruption-related criminal offences. The draft law proposes to release persons who have committed abuse of power or office that is corrupt.

Secondly, the only ground for exemption from liability in the proposed rule is full compensation for the damage caused. That is, there is no question of any remorse, let alone effective remorse.

A person may not be aware of his or her guilt in the act, and may not regret or condemn his or her behaviour in any way. There is also no requirement to assist law enforcement agencies in establishing the circumstances of the case, as well as the persons involved in the crime.

Thirdly, the choice of such crimes, the commission of which is a prerequisite for exemption from criminal liability, is not justified in any way. It is unclear why the authors of the draft law chose these and not other articles to be reflected in the new rule.

Fourthly, not in all cases, the damages to be compensated as a result of these crimes are losses to the state budget, they may also be damages to private individuals. Therefore, the purpose of legislative regulation in the form of ‘additional sources of funds for the economy of Ukraine and the State Budget of Ukraine, financing of the defence capability of Ukraine’ will not always be achieved.

In addition, the authors did not propose any additional regulation that would allow the use of the funds received specifically for defence. Therefore, the issue of a significant filling of the revolving budget remains questionable.

Thus, in view of the above arguments, there are reasonable grounds to believe that the proposed approach is selective, and the draft law is designed to exempt specific defendants in criminal cases from liability.

Who else will have to be bribed to avoid prison?

And one more important nuance. The draft law proposes to establish that the amount of damage is determined according to an expert assessment of the value of the property in respect of which the misappropriation, embezzlement, or seizure through abuse of office, or loss through negligence, was committed at the time of such actions.

The proposed approach contributes to significant corruption risks, despite the fact that one of the objectives of the draft law, as defined in the explanatory note, is ‘to reduce corruption risks, eliminate abuses in bringing persons to criminal liability’.

The cost of the results of the expert's work, which will determine the value of the required compensation, will be raised many times over in order to understate such value. This will be especially true in cases where the damage is estimated at hundreds of millions of hryvnias. Let's just mention the Rotterdam+ case, where such an assessment is actually worth the case.

The Institute of Legislative Ideas opposes the adoption of this draft law in its current form, as it may create conditions for selective exemption from liability of persons suspected of serious crimes, including corruption.

The war in our country should not be a reason for granting indulgence to criminals. After all, it is we who will live in the country after the war together with corrupt officials who, having paid off, will again steal budget funds and destroy the country from within, destroying what Ukrainians give their lives for every day.

Source: Ukrainska Pravda