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ACREC’s attitude to amendments to the draft law №1010

The Anti-Corruption Research and Education Center (ACREC) expresses its position on the draft law on amendments to the Law of Ukraine “On Prevention of Corruption” №1010. After conducting a legal analysis of this bill, ACREC experts came to the following conclusions:

  • Part 4 of Art. 53-1 of the bill prohibits the reporting of corruption through external channels (i.e. through the media, journalists, public associations, trade unions). This contradicts the fundamental law provided for in Art. 10 of the European Convention on Human Rights (freedom of expression). As a consequence, the case-law of the European Court of Human Rights. Thus, in the judgment of the European Court of Human Rights in the case of Bucur and Tom v. Romania, 8 January 2013 (case № 40238/02), the court noted that criminal liability for the communication of socially necessary information is a violation of Art. 10 of the European Convention.
  • Part 4 of Art. 53-1 of the bill creates a legal conflict, as it prohibits the reporting of corruption through the media, journalists, public associations, trade unions. At the same time, the current laws “On Information” and “On Access to Public Information” allow the dissemination of information with limited access, if it is socially necessary information. Following Art. 29 and Part 3 of Art. 30 of the Law of Ukraine “On Information” and Art. 11 of the Law of Ukraine “On Access to Public Information”, such information may be communicated in the public interest and the person is released from liability for disclosure of information with limited access, if the court finds that this information is socially necessary.
  • Part 4 of Art. 53-1 of the bill weakens the standards of access to public information. In particular, it makes it impossible to apply the provisions of Art. 39 of the Law of Ukraine “On State Secrets” on liability for the unjustified classification of information, including violations of the Law of Ukraine “On Access to Public Information”. Because, on the one hand, information that may indicate corruption offenses can not be attributed to information with limited access (including state secrets), and on the other hand – because of Art. 53-1 of the Law of Ukraine “On Prevention of Corruption” which prohibits the disclosure of information constituting a state secret through external channels, employees will be afraid to disclose information about illegal facts of classification of relevant information as a state secret. After all, the very fact of such a report will be a violation of the procedure provided for in Part 4 of Art. 53-1 of the bill.
  • Adoption of Part 4 of Art. 53-1 of the bill threatens to cancel the achievements of the previous 15 years on the formation of legal doctrine in Ukraine on the exemption from criminal liability for the dissemination of information that was classified as a state secret if it is socially necessary information (for example, information proving corruption).
  • Adoption of Part 4 of Art. 53-1 of the bill will be the reason for the courts to apply only Part 4 of Art. 53-1, according to the law in time and specialty of this norm in comparison with the norms of the Law of Ukraine “On Access to Public Information” and the Law of Ukraine “On Information”.

Thus, the experts concluded that Part 4 of Art. 53-1 of the draft law № 1010 “On Amendments to the Law of Ukraine“ On Prevention of Corruption against Detectors of Corruption ”only worsens the protection of whistleblowers, in particular, weakens the protection against criminal prosecution in comparison with the current legislation.

A corresponding letter with a request to take into account expert opinions was sent to the Committee on Anti-Corruption Policy of the Verkhovna Rada of Ukraine /wp-content/uploads/2020/04/Zminy-do-zakonoproektu-1010.pdf