Fines for refusal to provide information to arbitration managers want to be introduced without exceptions for official secrets

A draft law is under consideration in the Verkhovna Rada that provides for the introduction of criminal and administrative liability for pressure on arbitration managers, which may strengthen their legal protection, but certain provisions of draft law No. 15217 require refinement.

According to Articles 12 and 12-1 of the Bankruptcy Procedure Code of Ukraine, an arbitration manager has the right to:

• appeal to state authorities, local self-government bodies, enterprises, institutions, organizations, and individuals with requests to obtain information and documents necessary in the bankruptcy case of the debtor and his family;
• receive from banks, payment and other financial institutions information about the debtor's accounts, cash flows, balances, and financial transactions, as well as data on contracts regarding the storage of valuables;
• have access to information about the debtor, his property, income, and funds, including data from state registers and databases, including confidential information.

Arbitration managers have broad powers to obtain information about debtors, their property, income, and accounts. At the same time, current legislation does not provide for criminal or administrative liability for illegal influence, pressure, or interference in their activities.

What changes does the draft law propose

As reported by the "Judicial and Legal Newspaper", it is proposed to amend the Criminal Code of Ukraine by expanding the circle of persons to whom liability for resistance, interference in activities, or encroachment on life in connection with the performance of official duties applies, supplementing it with arbitration managers.

In addition, amendments to the Code of Ukraine on Administrative Offenses provide for the introduction of administrative liability for officials for unlawful refusal, untimely, incomplete, or unreliable provision of information in response to requests from an arbitration manager.

Amendments to Article 212-3 of the Code of Ukraine on Administrative Offenses propose to establish administrative liability for officials in the form of fines for:

• unlawful refusal to provide information;
• untimely or incomplete provision of information;
• providing unreliable information in response to a request from an arbitration manager in accordance with the Bankruptcy Procedure Code of Ukraine;
• the amount of the fine is proposed to be set at the level of 25 to 50 non-taxable minimum incomes of citizens.

In particular, the draft law provides that cases of such offenses will be considered by courts, and officials of the Ministry of Justice of Ukraine and its territorial bodies will have the authority to draw up the relevant protocols.

At the same time, the Criminal Code of Ukraine provides for liability for such acts regarding employees of law enforcement agencies, state and private executors, servicemen, and other persons. Private executors, like arbitration managers, are independent specialists who act on the basis of law and court decisions, and their decisions are mandatory for execution.

What shortcomings does the draft law contain

However, the Verkhovna Rada drew attention to a number of provisions that require refinement.

The proposed amendments to the Criminal Code of Ukraine use the new term "arbitration manager," but the draft law lacks its definition or reference to the norms of the Bankruptcy Procedure Code of Ukraine. Therefore, it is proposed either to fix the definition of the term in a separate note to the relevant articles or to directly refer to the provisions of the specialized code.

In particular, according to the Law of Ukraine "On Lawmaking Activity," the terms of normative legal acts must be unambiguous and clear, and in the case of using narrowly specialized concepts, they must be mandatorily defined.

To ensure unambiguous understanding of the provisions of the draft law, it is proposed to clarify the wording of certain norms of the Criminal Code of Ukraine.

In particular, it is proposed to restate part one of Article 343 of the Criminal Code of Ukraine in a version that provides liability for influence in any form on an employee of a law enforcement agency, a forensic expert, an employee of the state executive service, a private executor, an arbitration manager, as well as their close relatives, with the aim of obstructing the performance of official duties, conducting forensic expert activities, or obtaining an illegal decision.

It is also proposed to restate part one of Article 347 of the Criminal Code of Ukraine in a version that provides liability for intentional destruction or damage to property belonging to an employee of a law enforcement agency, an employee of the state executive service, a private executor, an arbitration manager (including after dismissal), or their close relatives, in connection with the performance of their official duties or forced execution of court decisions in the past.

It is noted that the proposed wording more fully takes into account the special nature of the powers of state and private executors regarding the forced execution of court decisions.

Also, comments concern the fact that procedural guarantees in the Criminal Procedure Code of Ukraine are not fully consistent with the Bankruptcy Procedure Code. In particular, the current Bankruptcy Code requires notifying the bankruptcy authority and the self-regulatory organization of arbitration managers in case of their detention or notification of suspicion, while the Criminal Procedure Code lacks similar norms or they require clarification.

In addition, the current Criminal Procedure Code already contains norms regarding notification of the Ministry of Justice of Ukraine in case of detention of private executors, but the draft law does not fully take into account similar approaches regarding arbitration managers.

Regarding procedural guarantees, it is also proposed to expand the scope of information sent to the Ministry of Justice of Ukraine and the National Association of Arbitration Managers of Ukraine, providing for notification not only about preventive measures but also about all measures to ensure criminal proceedings concerning arbitration managers, as they are related to significant interference with the rights of the person.

The Verkhovna Rada also drew attention to another shortcoming in the proposed amendments to Article 212-3 of the Code of Ukraine on Administrative Offenses. In particular, the norms on liability for unlawful refusal to provide information upon request of an arbitration manager should be supplemented with a reservation that it does not apply to cases of refusal to provide secret or official information. This will allow harmonizing the new provisions with the current norms of the Bankruptcy Procedure Code of Ukraine.

The changes proposed by the draft law do not fully meet the requirements of legal certainty, completeness, and systematic nature of legislation, and are insufficiently coordinated with the norms of other laws. This may further complicate the practical application of the new norms and achieving the declared goal of strengthening the legal protection of arbitration managers.

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