“Convenient legal reality for the DGF": human rights activist on Hetmantsev's draft law

The draft law No. 13007 on the regulation of the Deposit Guarantee Fund, submitted to the parliament, is a lobbying bill and is an attempt to create a convenient legal reality for the DGF. This opinion was expressed in an exclusive commentary to UNN by human rights activist, head of the NGO "Independent Anti-Corruption Bureau of Ukraine" Arsen Marinushkin.

Context

Danylo Hetmantsev, Chairman of the Parliamentary Tax Committee, has submitted to the Verkhovna Rada a draft law "On Amendments to Certain Legislative Acts of Ukraine on the Settlement of Certain Issues of the Deposit Guarantee Fund, the National Bank of Ukraine and Collective Investment Institutions". After a detailed study of the document, it became clear that the proposed amendments contradict the Constitution of Ukraine in terms of the right of citizens to free possession of property, as well as the right to judicial appeal and a fair trial. In addition, Hetmantsev's legislative initiative violates a number of existing laws and creates major corruption risks.

"This is not the first time I have observed a disturbing trend in lawmaking, when authors of special laws try to establish a "limitation period" where it cannot exist by definition. In my opinion, on the one hand, this is a legal manipulation to justify the Guarantee Fund for possible mistakes, and on the other hand, it is an elementary misunderstanding of the legal framework," said Arsen Marinushkin.

According to him, the draft law uses the "limitation period" that applies in civil or commercial cases, unlike administrative cases, where "time limits for going to court" are applied. "In my opinion, which is also confirmed by the Supreme Court's conclusions, no special law can change or establish its own limitation periods, as this obviously contradicts the principle of legal certainty. Attempts to shorten the limitation period through a special law - for example, as in this draft law to one year - look like an attempt to justify the mistakes of the Guarantee Fund, which can be appealed in court," Arsen Marinushkin emphasized.

The human rights activist added that this creates artificial obstacles to the protection of rights in court for participants in the process of bank liquidation.

According to Arsen Marinushkin, Hetmantsev's draft law looks like a lobbying effort, where the MPs who submitted it to the parliament did not understand its essence. "If the real goal of protection was pursued, then the time limit for consideration of the case in court would be set (although it would most likely be violated), not the time limit for filing a lawsuit," the human rights activist noted.

He also clarified that this is not the first time that the Deposit Guarantee Fund has tried to obtain powers that are not inherent in its legal nature or additional opportunities to avoid responsibility through draft laws.

"As a lawyer, I can say that such practices of lawmakers are dangerous, because tomorrow we may get a law that will reduce the limitation period to a few days, and it is not a question of whether a person can physically prepare a lawsuit in a month - if he or she wants to, he or she will certainly find the opportunity. But law is not about the ability of an individual to "make it" or "not make it," but about equal rules for everyone. I see here an attempt to create a separate legal reality for the Foundation that is convenient for it," the human rights activist summarized.

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The founder of Kasyanenko & Partners Law Firm, Dmytro Kasyanenko , criticized Hetmantsev's draft law limiting the timeframe for appealing against decisions of the State Deposit Fund in courts to 1 month. According to him, this contradicts the general principles of civil law and creates preconditions for abuse by responsible officials. The lawyer emphasized that this does not comply with Article 55 of the Constitution of Ukraine, which guarantees everyone the right to judicial protection, and also contradicts the practice of the European Court of Human Rights, which requires reasonable time limits for applying to the court.

Nina Yuzhanina, a member of the Verkhovna Rada Committee on Finance, Taxation and Customs Policy, noted that the MPs who signed Hetmantsev's bill do not fully understand its implications. She emphasized the need to review the Fund's activities, in particular in terms of transparency of the competitive selection of management.