The Business Ombudsman Council provides recommendations to state bodies on the basis of individual cases and in accordance with published systemic reports. Here we have collected information on the implementation status of systemic recommendations only.
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Report name
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Issued recommendations
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Execution status
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Systemic report "Main problems faced by business in customs sphere" |
To ensure existence of effective legal framework on governing mechanism of authorized economic operators, which would be consistent with the relevant European Union legislation, - to ensure prompt adoption of the Draft Law of Ukraine No.7473, whose provisions would, inter alia, foresee:1.1.Grounds for extension (or suspension) of 120-day time period for conducting assessment of compliance with Authorized Economic Operator eligibility criteria to enable requesting from a candidate (and corresponding disclosure) of additional documents and information - for instance, when additional information is required to ensure a comprehensive compliance assessment, whose disclosure requires significant time.1.2.That existence of a pre-trial investigation in a criminal proceeding should not, by itself, constitute a self-sufficient ground for suspending Authorized Economic Operator status (contrary to what was envisaged by the Draft Law of Ukraine No.4777).1.3.That while contemplating revocation of Authorized Economic Operator status due to infringement of customs rules, it is mandatory to ascertain existence of connection between the amount of losses (losses of the State/unpaid taxes resulting from such infringements) and total invoice value of goods that were moved by an entity across customs border of Ukraine during period of time employed by customs administration for conducting such a comparison. Verkhovna Rada of Ukraine |
Implemented
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Systemic report "Combatting raidership: current state and recommendations" |
To include in the Draft Law No.6232 provisions which would: -Introduce amendments to the Administrative Procedural Code of Ukraine providing that the subject matter of the claims in the administrative proceedings cannot be demand to cancel or revoke the registration entries in the state registries, if enforcement of decision taken in such a case would directly result in the emergence, modification or termination of real rights or encumbrances.
Verkhovna Rada of Ukraine |
Implemented
— comments:
In accordance with p. 3 of Art. 19 of the Code of Administrative Adjudication of Ukraine dated 07.01.2018, administrative courts do not consider claims that derive from claims in a private-law dispute and are filed therewith, if this dispute is subject to consideration other than as provided hereunder, and is being considered by the relevant court.
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To include in the Draft Law No.6232 provisions which would:-Introduce amendments to the Civil Procedure Code of Ukraine and the Commercial Procedure Code of Ukraine, which would foresee that property owner, when applying to the court for the protection of his/her property right, can unite in a single claim several related claims due to be considered under the rules of different types of litigation, provided that a separate consideration of such claims by the courts of different jurisdictions would deprive him/her of efficient legal protection envisaged in Article 13 of the European Convention on Human Rights and Fundamental Freedoms.
Verkhovna Rada of Ukraine |
Implemented
— comments:
According to para. 13 of Art. 20 of the Commercial Procedural Code of Ukraine, commercial courts shall consider cases in disputes arising in connection with the conduct of economic activity, in particular, claims for the registration of property and property rights, other registration actions, invalidation of acts violating rights to property (property rights), if such claims derive from a dispute regarding such property or property rights or a dispute deriving from corporate relations, if this dispute is subject to consideration in the commercial court and submitted thereto for consideration along with such claims;According to p. 12 of Art. 30 of the Commercial Procedural Code of Ukraine (exclusive jurisdiction), claims for registration of property and property rights and other registration actions, if consideration of such claims falls within the jurisdiction of the commercial court, are considered by the commercial court determined by the rules of jurisdiction of the dispute, the derivatives whereof such laims are.The Civil Procedural Code of Ukraine Para. 2 of p. 1 of Art. 19 of the Civil Procedural Code of Ukraine states that courts shall, in accordance with the procedure of civil proceedings, also consider claims for the registration of property and property rights and other registration actions, if such claims derive from a dispute regarding such property or property rights, if this dispute is subject to consideration in the local general court and referred thereto for consideration with such claims.According to p.8 of Art. 30 of the Civil Procedural Code of Ukraine (exclusive jurisdiction), the claims for registration of property and property rights, other registration actions are considered by a court determined according to the rules of jurisdiction of the dispute, the derivatives whereof such claims are.
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Systemic report "Challenges for government and business in dealing with local government" |
To adopt laws that remove legal gaps and foster voluntary unification of territorial communities (No.4772 dated 3 June 2016, and No.5520 dated 9 December 2016).
Verkhovna Rada of Ukraine |
Implemented
— comments:
1) The Law “On Amendments to Certain Legislative Acts of Ukraine (regarding Voluntary Joining of Territorial Communities)” has been adopted on 9 February 2017 (Draft Law No.4772).2) The Law “On Amendments to Certain Legislative Acts of Ukraine regarding Peculiarities of the Voluntary Joining of Territorial Communities Located on the Territories of the Adjoining Areas” has been adopted on 14 March 2017 (Draft Law No. 5520).
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Systemic report "Challenges and problems in the sphere of competition protection and oversight" |
To amend Article 18, para 10 of the Law of Ukraine "On Public Procurements" to enable complaining bidder or any other participant of the appeal procedure to submit additional documents related to the merits of the complaint. Antimonopoly Committee of Ukraine |
Implemented
— comments:
The relevant amendments to the clause 10 of the Article 18 of the Law of Ukraine "On Public Procurements" is currently being drafted by the AMCU. It is planned that the MEDT would submit the foregoing draft with VRU in 2018.
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Whereas public procurement procedures and non-judicial appeal procedure are documented in electronic form, - to ensure admissibility of evidence lodged with the Ukrainian courts in the form of electronic documents by either:a) amending Article 79, para 1 of the Administrative Procedural Code of Ukraine and relevant regulations governing circulation of electronic documents accordingly; or byb) amending Article 12, para 3 of the Law of Ukraine “On Public Procurements” along with relevant provisions of the Administrative Procedural Code of Ukraine on evidences, to provide administrative courts with the right to access electronic procurement system.
Verkhovna Rada of Ukraine |
Implemented
— comments:
The clause 9 of the Article 79 of the Administrative Procedural Code of Ukraine recognizes admissibility of evidence submitted in electronic form.
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Systemic report "Abuse of powers by the law enforcement authorities in their relations with business" |
To amend legislation to increase the threshold amount of actual sums due to be paid to the budget (arising from the unpaid taxes, levies and unified social tax), triggering treatment of such action at the part of taxpayer as criminal offence. Verkhovna Rada of Ukraine |
Implemented
— comments:
On 18 September 2019, the Verkhovna Rada adopted the Law "On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine on Reducing Pressure on Business". The law decriminalizes fictitious entrepreneurship (provided for in Article 205 of the CC) and raises the thresholds for bringing individuals to justice under Article 212 of the CC. The threshold for criminal proceeding initiation increased from 960 500 UAH to 2 881 500 UAH.
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To amend Article 214 of the CPCU to impose a duty on investigator/prosecutor to notify an applicant about their receipt of application or notification about committed criminal offence, registration of the respective data with the URPTI and commencement of pretrial investigation based on such application/notification.
Verkhovna Rada of Ukraine |
Implemented
— comments:
The BOC's recommendation has been implemented via adoption the Law of Ukraine "On amending certain laws regarding enforcement of the rights of the parties to the criminal proceeding and other persons by the law enforcement authorities during the pre-trial investigation" dated 16 November 2017 No.2213-VIII.
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To amend Article 219 of the CPCU to prescribe maximum time limits for conducting pre-trial investigation of criminal proceedings until suspicion notice is furnished to a person. Such time limits could be extended subject to consent of the superior prosecutor. Currently, time limits for conducting pre-trial investigations are foreseen by the CPCU only starting from the day when a person is furnished with a suspicion notice.
Verkhovna Rada of Ukraine |
Implemented
— comments:
The BOC's recommendation has been implemented via adoption the Law of Ukraine dated 03 October 2017 No.2147-VIII.
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To amend Article 308 of the CPCU to enable third parties, whose rights are being restricted and/or violated in course of the pre-trial investigation (in whose relation a pre-trial investigation is taking place) with the right to challenge failure to observe reasonable time limits to the superior prosecutor. Currently only suspected person, accused person and victim are vested with such right.
Verkhovna Rada of Ukraine |
Implemented
— comments:
The BOC's recommendation has been implemented by adopting the Law of Ukraine "On amending certain laws to ensure enforcement of the rights of the parties to the criminal proceeding and other persons by the law enforcement authorities during the pre-trial investigation" dated 16 November 2017 No.2213-VIII.
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The CPCU shall be comprehensively amended to provide for a special procedure of seizure of digital data, which, inter alia, would not contemplate seizure of computer hardware and would allow avoiding stoppage in the work of businesses due to seizure of servers. Hence, in the Council's view, it is appropriate to introduce respective amendments to the Chapter 20 ("Investigatory actions") of the CPCU.
Verkhovna Rada of Ukraine |
Implemented
— comments:
The BOC's recommendation has been implemented via adoption of the Law of Ukraine "On amending certain laws to ensure enforcement of the rights of the parties to the criminal proceeding and other persons by the law enforcement authorities during the pre-trial investigation" dated 16 November 2017 No.2213-VIII (Article 168 of the CPCU).
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To consider amending Article 236 of the CPCU to introduce mandatory video recording of such investigatory action as search. In the Council's view, it might be appropriate to provide that such video recording shall commence when the manager of the entity is furnished with the resolution issued by an investigatory judge sanctioning such search and shall last until he/she is provided with the copy of the protocol of search. It is also worth providing that only that evidence, whose collection was video recorded, is admissible.
Verkhovna Rada of Ukraine |
Implemented
— comments:
The BOC's recommendation has been implemented via adoption of the Law of Ukraine "On amending certain laws to ensure enforcement of the rights of the parties to the criminal proceeding and other persons by the law enforcement authorities during the pre-trial investigation" dated 16 November 2017 No.2213-VIII (Article 104 of the CPCU).
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To improve mechanism of personal liability of employees of law enforcement agencies for violations committed while carrying out investigatory actions. In particular, in addition to the existing Disciplinary Charters (Codes) of the Public Prosecutor's Office of Ukraine and Draft Law of Ukraine "On Disciplinary Charter of the National Police", both of which represent internal institutional mechanisms, to consider the opportunity of involving NGOs to the work of such disciplinary commissions.
Verkhovna Rada of Ukraine |
Implemented
— comments:
The BOC's recommendation has been implemented via adoption of the Law of Ukraine "On amending certain laws to ensure enforcement of the rights of the parties to the criminal proceeding and other persons by the law enforcement authorities during the pre-trial investigation" dated 16 November 2017 No.2213-VIII.
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