Problem

To date, the legal provisions defining anticorruption prohibitions and restrictions have been sufficiently tested, and the outcomes of these tests indicate their insufficient effectiveness, which is partly due to the lack of practical experience in designing the relevant restrictions in Ukraine, as well as to disparate amendments made to the rules governing such anticorruption restrictions after the entry into force of the Law of Ukraine On Prevention of Corruption.
For example, the prohibition of concurrent employment (of the conduct of specific activities), the wording of which is unclear and can be interpreted in different ways, leads to discretion and, accordingly, corruption risks when making decisions on whether a particular activity is prohibited or permitted by specially authorized anticorruption entities, courts and/or misconceptions of the entities covered by the Law of Ukraine On Prevention of Corruption that there are no violations of anticorruption restrictions when signs of violations are present, which causes them to be held liable.
The existing wording of the restriction on receiving gifts makes it possible to argue that gifts exceeding the maximum permitted value (one-time or in total) are automatically prohibited, even if received as gifts within the framework of personal (friendly) relations during certain holidays (events) and not motivated by the person’s position or as diplomatic gifts.
Since the relevant restriction should primarily make it impossible to influence the objectivity and impartiality of the official in the performance of their official duties, the wording of the existing restrictions on receiving gifts appears excessive and does not ensure a fair balance between the private and public interests of the person.
In addition, the Law of Ukraine On Prevention of Corruption presumes that a decision made by an official in favor of a person from whom they or their next of kin received a gift is considered to be have been made in the conditions of a conflict of interest, regardless of how much time elapsed since the gift was received.
The wording of the relevant provision leads to situations where, even many years after receiving a gift, a decision made in the course of exercising their powers may lead to formal sanctions due to a conflict of interest, although the relationship between the gift giver and the recipient, on account of the amount of time that has elapsed, no longer implies the existence of a private interest as a mandatory component of a conflict of interest.
Enforcement problems are also linked to the flaws of the Law of Ukraine On Prevention of Corruption, which defines the rules for handling gifts or unjust enrichment, which are not sufficiently consistent and all-encompassing, and sometimes do not exist at all, for example, when it comes to gifts received in intangible form (money transfer to a bank account).
It is also worth noting that not all anticorruption restrictions are accompanied by the relevant type of liability. For example, a violation of a restriction committed after discontinuation of performance of the functions of state or local self-government has no negative legal implications for the violator, and therefore contributes to the commission of new violations of such restrictions.
This happens because it is impossible to impose a disciplinary sanction due to the specifics of the restriction, which begins to apply after the person has already stopped performing the functions of state or local self-government, as well as the absence of administrative liability for violations of said restriction.
Restrictions applicable after discontinuation of activities involving performance of the functions of state or local self-government, which are not supported by liability stipulations, renders the state unable to influence compliance with this restriction and, therefore, its effectiveness.
Moreover, chaotic amendments to the Law of Ukraine On Prevention of Corruption have led to a situation where some persons holding patronage positions (e.g., assistants and advisers to the President of Ukraine), due to their official functions and a sufficiently high level of corruption risks, are subject to anticorruption restrictions, while persons with similar functions and risks (e.g., assistants to Parliament members) are not.
These problems with normative regulation of mechanisms for preventing corruption lead to a decrease in the efficiency and effectiveness of such mechanisms and do not help curb corruption.