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Visa-Free Regime: EU Formal Requirements and Realities of Ukrainian Legal Environment


Ivan Bozhko, Attorney at Ilyashev & Partners Law Firm Source:

Verkhovna Rada of Ukraine has actually passed the whole package of documents required for liberalization of visa regime with the European Union. What is to be expected?

Verkhovna Rada of Ukraine has recently passed in the second reading the last of the necessary laws of the “visa-free package”. The Draft law No. 3755 “On introduction of amendments to certain Ukrainian acts of legislation related to particularities of filing by officials of declarations relating to their property, profits, expenses and financial liabilities in 2016” with proposals of the President of Ukraine, Petro Poroshenko and coordinated with the European party, was approved by votes of 278 Ukrainian People’s Deputies.

The Speaker of the Parliament, Volodymyr Groysman, was quick to report that Ukraine did its best to near itself to visa-free regime with the European Union. In this context almost unnoticed was the media report that the process on competitive selection of members of the National Agency for Prevention of Corruption (NAPKA), which is one the main requirements for visa liberalization – has turned to be blocked.

Forbes decided to ask lawyers how new “visa-free” laws will actually improve Ukrainian legal environment, whether it will be possible to consider this process to harmonious and if there are grounds to blame the European officials with over formalistic approach towards this matter. Ivan Bozhko, Attorney at Ilyashev & Partners Law Firm, has shared his views with the readers.

The “visa” dialogue between Ukraine and the European Union was officially started October 29, 2008 – after the EU-Ukraine summit held in September. The Road map related to liberalization by the EU of visa regime approved on September 22, 2010 stipulates for two stages and included four blocks of matters:

1. Safety of the documents, including biometrics; 2. Illegal migration, including readmission; 3. Public order and security; 4. International relations and fundamental rights.

If realization of the matters contained in groups 1, 2 and 4 caused no problems the matters of public order and security have posed a real obstacle towards introduction of visa-free regime with the EU. First and foremost it is related to the fact that this group of matters includes a number of “anti-corruption laws”.

The most striking example is passing the law “On the state budget of Ukraine 2016” with a scandalous amendment (paragraph 10) which stipulates for suspension (till January 01, 2017) of entrance into force of provisions of the Law of Ukraine “On prevention of corruption” relating to the process of electronic declaration.

It needs to be reminded that with introduction of electronic declaration procedure the National Agency for Prevention of Corruption shall be authorized to monitor the way of life led by state officials with the aim of establishment of conformity of property owned by them and members of their families and their profits according to the their corresponding profit declarations. At the same time intentional failure to submit the declaration or deliberate declaration of false information may form the basis of bringing a person to criminal responsibility stipulated by Article 366(1) of the Criminal Code of Ukraine.

In relation to the legislation “sabotage” with deferred electronic declaration an EN representative to Ukraine, Jan Tombiński, stated that the current version of the law is in express contradiction with requirements of anti-corruption liabilities undertaken by Ukrainian power elite.

Another example is the procedure of passing the law No. 4055 “On introduction of amendments to the Law of Ukraine “On prosecutor’s activities” as regards to ensuring transparency of organization of activities of Special anti-corruption prosecutor’s office for compliance with the recommendations of the International Monetary Fund”. At first this draft law stipulated for very broad discretional authorities of the Prosecutor General regarding his right to reject candidates for the position of specialized anti-corruption prosecutor and his deputies, appointed by an independent appointment commission. The representatives of the European community pointed at the corresponding violations right away – their existence will not guarantee full independence of the official who is going to be actually in charge of fighting corruption.

Great public attention devoted to consideration of laws from “visa-free package”, as well as close supervision exercised by European officials, constitute the effective tool of influence onto our political elites. An evidence of such fact is that as a result of such pressure Laws No. 4055 (related to powers of the Prosecutor General relating to rejection of candidates for the position of specialized anti-corruption prosecutor) and No. 3040 (on establishment of the National Agency for detection, search and management of assets gained from corruption and other crimes) were approved in the versions corresponding to requirements of the European Union.

In relation to the electronic declaration the said factors made Ukrainian deputies quickly initiate consideration of the Draft Law No. 3755 “”On introduction of amendments to certain legislative acts of Ukraine as for particularities of submitting by the state officials of their declarations related to their property, profits, expenses and financial obligations in 2016” according to which the scandalous amendments are excluded from the current version of the Law on prevention of corruption. This draft law, with consideration for the President’s proposals, was considered yesterday as urgent and was approved in its entirety. Thus, as of the present moment Verkhovna Rada of Ukraine has actually approved the whole list of laws required for liberalization of visa-free regime with the EU.

If we talk about implications of the adopted laws stipulated by the Roadmap of actions for liberalization by the EU of visa-free regime for Ukraine one should not expect positive social and economic effect for ordinary citizens in the nearest future. Ukrainians may expect certain results in medium- and long-term perspective – its achievement is related to the systematic fight with corruption and construction of transparent economy which will result in realization of norms of anti-corruption legislation which is included into the 3-rd group of matters of the Roadmap of actions for liberalization by the EU of visa-free regime for Ukraine. This, in its turn, will promote establishment of trust between business and power circles, attraction of investments, creation of workplaces and increase of budget revenues.

However, we should not idealize “visa regime laws” as soon as the enacted acts of legislation may contain numerous conflicts and shortcomings which will not only allow circumventing particular legal mechanisms, but also misrepresent the aim of adoption of such laws. It is not uncommon when such “shortcomings” of legislation initiative manifest themselves at the stage of realization of the adopted laws, especially of the laws related to formation of newly-established bodies. An example of such controversial norms may be represented by provisions of Article 23(4) of the new law “On prosecutor’s activities” which, as of today, actually deprives this state agency of the opportunity to protect the interests of the state and of the state local authorities even in case of evident violations of law.

Such condition makes it impossible to adequately react to violation of legislation in the sphere of land relations. With same legal conflicts regulated also was the procedure under which selection of the heads of local prosecutor’s offices was carried out. The system of operation of corresponding commissions non-transparently and improperly regulated by the current Law of Ukraine “On prosecutor’s activities” (Article 39) and the Order of the Prosecutor General of Ukraine No. 98 as of July 20, 2015 has resulted in the situation when more than 90% of the heads of prosecutor’s offices saved their positions subsequent to the results of competitions to fill the corresponding positions.

Similarly was complexified the procedure of selection of the candidates to the National Agency for Prevention of Corruption which makes it impossible for this state official body (establishment of which was the compulsory prerequisite of liberalization of visa regime with the EU). Additional example of one of the Parliament’s imperfect work is adoption of a new law “On the state service” provisions of which deprive many state officials of such status. Not once it was stated that such legislative amendments may lead to creation of new corruption schemes and lifting limitations regarding the use of official powers in violation of the states interests.

At the same time, as it was indicated earlier, the representatives of the European Union pay close attention to adaptation of Ukrainian laws to the European standards, as well as quickly and adequately react to any attempts of our politicians to deflect from the declared vector of development. So, such an approach can hardly be qualified as formal. In addition, the EU has great leverage over the representatives of Ukrainian power: starting from financing of special-purpose programs, directed at realization of certain provisions of newly-adopted legislation and ending with adoption of decisions under the results of implementation of the Roadmap of actions for liberalization by the EU of visa-free regime for Ukraine.

It should be noted that introduction of visa-free regime depends not only on adoption of corresponding regulatory legal acts, but on ensuring their practical implementation. It is the second stage of the Road map which mainly directed at the performance of the mentioned procedures. This is why it is premature to make judgments on possibility of obtaining the possibility to make visa-free travels to the European Union by out fellow-countrymen.


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