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Top 5 Successful and not working laws of independent Ukraine


Author: Oleksii Khrystoforov, attorney, Head of Kharkiv office, Ilyashev & Partners
Source: «Kontrakty»

On birthday it is customary to review the results of the past years’ work. As an expert in law, I propose to evaluate and analyze some of the most important statutory acts adopted over the last 22 years by the deputies of the Verkhovna Rada.

The Constitution of Ukraine

Anybody will tell you that it is the most important law over the years of Ukraine’s Independence. This supreme statutory act adopted in the summer of 1996 outlines initial legal framework for functioning of the state, enshrines the fundamental principle of the rule of law at the highest legislative level. No one can be above the law, no one can be punished by the state except for breaking the law, and no one can be convicted of a violation of law, except in the manner prescribed by law.

To date, many provisions of the Constitution of Ukraine are applied in litigations as rules of direct effect.

However, it should be mentioned that many provisions of the Constitution actually remained «declaration of intention», because their actual observation is not secured by the effective coercion mechanisms.

Tax and Customs Codes

Development and adoption of the Tax Code took almost twenty years. Many foreign experts believe that tax legislation of Ukraine has been and still is one of the most complex, contradictory and confusing in the world. Despite massive protests of entrepreneurs all over Ukraine, «tax Maidan», sharp reasonable criticism of the Tax Code and regular problems with its performance, it should be noted that a single document that sets forth an exhaustive list of taxes and fees charged in the state, and their administration is a welcome event.

The work aimed at consolidation of Tax and Customs Codes has already begun. It is necessary to adjust tax and customs relations in the country.

Code of Criminal Procedure

The new Code of Criminal Procedure of Ukraine came into force in November last year. It is a progressive and revolutionary document. Particularly noteworthy are the judicial procedure for choosing preventive measure and its extension, drastic restriction of remand in custody as a preventive measure, and equal rights and opportunities to collect evidence for the parties of criminal proceedings.

Individual deposit guarantee system

Deposit guarantee schemes were introduced by Leonid Kuchma, the second President of Independent Ukraine.

The law approved in the autumn of 2012 regulates legal, financial and organizational relations in the individual deposit guarantee system, relations between Depositors Insurance Fund, banks, the National Bank of Ukraine, sets forth the procedures for payment of refunds on deposits by the Depositors Insurance Fund, defines powers and functions of the Fund when removing insolvent banks from the market and winding up banking institutions.

However, along with successfully applicable laws there are those that exist, but for some reason do not work. I have identified the following «inoperative» laws.

On the principles of prevention and combating corruption. I have no doubt that this is a necessary law. It is clear that in our country any law, even a very good one, does not guarantee successful regulation of relations in the respective public sphere. Not the law is important, but who and how applies it. Anti-corruption legislation shall be constantly improved. In this context, promotion of best legal practice is crucial.

On personal data protection. In summer 2010, the Verkhovna Rada of Ukraine ratified the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Strasbourg, 1981, which performance was secured by the special law. Judging by vague wording, gaps and contradictions, the law was written and approved in a hurry, which resulted in difficulties of its integration in the effective Ukrainian legislation.

On access to public information.
It is a necessary and good law, which application on the one hand inspires cautious optimism and on the other – makes us think that we still have people who are «above the law».

I believe that the status quo can be changed by setting exact limits of responsibility of the officials for deliberate withholding of information and unreasonable refusal to provide information on request.

The pension reform.
Do we have many operating of private pension funds, savings programs for individual retirement accounts? Can young people start investing in their decent old age as part of the state pension system even today? I have not heard about it.

Prohibition of smoking. Adopted by the Parliament and signed by the head of the state the law that establishes quite clear and unambiguous prohibitions and «draconian» penalties for their violation is openly ignored everywhere and at all levels both in the hallway of the Parliament and in the «snack-bar» in the district center. This situation demonstrates that the state has to and, just as importantly, can provide actual implementation of the law, but for some reason fails to do it.

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