Hetmantsev's bill on the activities of the Deposit Guarantee Fund was subjected to devastating criticism by the Verkhovna Rada's scientific and expert department
Kyiv • UNN
The Verkhovna Rada's Scientific Expert Department has criticized Hetmantsev's draft law regarding the activities of the Deposit Guarantee Fund. Experts point to violations of legislation, corruption risks, and restrictions on the rights of depositors.
The Main Scientific and Expert Department of the Verkhovna Rada has criticized the draft law on the activities of the Deposit Guarantee Fund for Individuals, submitted by the Chairman of the VR Committee on Finance, Tax and Customs Policy, Danylo Hetmantsev. According to experts, the document contains systemic violations of current legislation, legal uncertainty, contradicts the Constitution of Ukraine and cannot be assessed for compliance with the Government's obligations to the IMF, writes UNN.
It should be noted that the accompanying documents to the project... do not provide proper justification for the expected socio-economic, legal and other consequences of the law after its adoption, other information necessary for consideration of the draft law, which would allow assessing the impact of the proposed innovations in the withdrawal of an insolvent bank from the market, in particular, on the protection of depositors' rights from the consequences of the bank's insolvency, the efficiency of the procedure for withdrawing insolvent banks from the market, as well as in the context of their compliance with the Memorandum on Economic and Financial Policy of 04.10.2024, which was signed between the Government of Ukraine and the International Monetary Fund, which is mentioned in the explanatory note to the project
Experts emphasize that the draft law does not contain a complete mechanism of legal regulation. According to them, most of the key norms proposed by Hetmantsev, in particular regarding the withdrawal of banks from the market, are transferred to the discretion of the Fund itself. This approach, according to experts, makes it impossible to objectively assess the consequences of the law, in particular the impact on the value of banks' assets, the procedure for compensation and the protection of depositors' rights.
In addition, experts criticized the vagueness and incorrectness of the definition of key concepts, such as "open competition", "interested person", "critical bank". In their opinion, the draft law actually endows the DGF with powers that belong to the exclusive competence of the National Bank, which contradicts current legislation.
In their opinion, the clause that allows Fund employees to simultaneously work in transitional banks looks particularly risky. This creates a potential conflict of interest and expands opportunities for corruption. And the provision on the possibility of non-disclosure of the Fund's financial statements directly undermines the principles of transparency and accountability.
The proposal of the updated part 5 of Article 18 of the Law regarding the exclusion of the requirement regarding the Fund's publication of annual/quarterly financial statements in accordance with the requirements of the legislation; the results of the assessment of the bank's assets with distribution by types of assets and indication of the independent appraisal entity, the method of assessment and the date on which the assessment was carried out, looks debatable, as this may negatively affect the publicity and transparency of information regarding the insolvent bank and, as a result, affect the ability of depositors and creditors of the bank to protect their rights and interests
Serious reservations of the Main Scientific and Expert Department of the Parliament are also caused by the restriction of the possibility to appeal the results of open tenders or actions of the Fund provided by the law. We are talking about reducing the statute of limitations to one month, which experts called legally dubious and such that may limit access to justice.
The provisions that allow the Fund to acquire ownership of property left for storage by bank customers if they do not apply for it in time were also severely criticized. Experts stressed that this violates Article 41 of the Constitution of Ukraine and Protocol No. 1 to the European Convention on Human Rights.
The permission proposed by Hetmantsev to change the creditor without the consent of the debtor, according to experts, directly contradicts the norms of the Civil Code of Ukraine. Also unacceptable is the removal of the prohibition on the allocation of a legal entity from the investment fund, which, according to experts, may create risks of asset dilution, and therefore introduces additional opportunities for abuse.
In conclusion, the Scientific and Expert Department believes that there is a risk of creating new legal conflicts, loss of control over the procedure for withdrawing banks from the market and a significant reduction in the protection of depositors' rights. In addition, it is interesting that the experts did not see a correlation between the draft law and the Memorandum between the Government of Ukraine and the IMF, the need for which is covered by Danylo Hetmantsev.
Let us remind you
Earlier UNN wrote that after a detailed study of the document, it became clear that the changes to the legislation in the part of the DGF activities proposed by Hetmantsev contradict the Constitution of Ukraine in the part of the right of citizens to freely own property, as well as the right to judicial appeal and a fair trial. In addition, the legislative initiative of Hetmantsev violates a number of current laws and creates great corruption risks. In addition, Hetmantsev's draft law contradicts the obligations undertaken by Ukraine to the International Monetary Fund (IMF) under the current financing program.
Let's add
The founder of the law firm "Kasyanenko and Partners" Dmytro Kasyanenko criticized Hetmantsev's draft law in terms of limiting the terms for appealing decisions of the DGF in courts to one month. According to him, this contradicts the general principles of civil law and creates preconditions for abuse by responsible officials. The lawyer stressed 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 ensuring reasonable terms for applying to the court.
The head of the NGO "Independent Anti-Corruption Bureau of Ukraine" Arsen Marinushkin believes that Hetmantsev's draft law is lobbying and is an attempt to create a convenient legal reality for the DGF.
I have been observing for the first time an alarming trend in lawmaking, when in special laws authors try to establish a "statute of limitations" where it cannot be 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, an elementary misunderstanding of the legal foundations
