The UNBA assessed the idea of increasing the liability period for ignoring requests

The inability of the state to ensure accountability for violations in the field of access to information, in particular for the late provision, non-provision, or provision of incomplete or inaccurate information in response to a lawyer's request, is not only a matter of freedom of speech but also a problem of access to justice.

The changes proposed by Draft Law No. 13332 of May 30, 2025, «On amendments to article 38 of the Code of Ukraine on administrative offenses to clarify the time limits for bringing to administrative responsibility for certain offenses», could help fix these problems.

Today, if an official fails to respond to a lawyer's request, violates someone's right to information or the right to appeal, or fails to comply with the lawful requirements of the Verkhovna Rada Commissioner for Human Rights, they can be punished under Articles 212-3 or 188-40 of the Code of Administrative Offenses. However, the law only allows three months from the date of the offense or from the date of its discovery, if it is ongoing.

During this time, it is necessary to:

• file a complaint;
• conduct an investigation;
• draw up a report;
• refer the case to court;
• hold a court hearing.

In practice, it is almost impossible to go through all these stages in three months, according to the UNBA Committee on Administrative Law and Procedure. Therefore, many cases are closed due to the expiration of the time limits without even being considered on their merits, and the guilty parties are not held accountable. This creates a situation of complete impunity for officials who violate the law and negates the preventive function of administrative responsibility, advocates explain.

Therefore, the draft proposes to extend from three to six months the period during which an official can be held administratively liable for violating the right of access to information or failing to comply with the Ombudsman's requirements.

The UNBA is convinced that the proposed changes are fully in line with international human rights standards, in particular the practice of the European Court of Human Rights.

Thus, in its judgment in the case of Társaság a Szabadságjogokért v. Hungary (2009), the ECHR recognized that a state's refusal to grant access to socially important information over which it has a monopoly may constitute an interference with the right guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In its judgment in the case of Magyar Helsinki Bizottság v. Hungary (2016), it established criteria under which a refusal to grant access to information is considered an interference with freedom of expression.

In addition, Article 13 of the Convention guarantees everyone whose rights and freedoms have been violated the right to an effective remedy before a national authority. The ECtHR has repeatedly emphasized that a remedy must be effective not only in theory but also in practice. Its effectiveness requires that it be capable of preventing the violation or its continuation and of providing adequate compensation.

At the same time, a mechanism for bringing to justice that systematically fails to function due to excessively short limitation periods is a classic example of a «theoretical and illusory» rather than a «practical and effective» remedy. The lack of a real possibility to punish an official for violating the right to information (violation of Article 10 of the Convention) means that there is no effective remedy against this violation (violation of Article 13).

Officials, aware that the risk of being held accountable under Article 212-3 of the Code of Administrative Offenses is minimal, tend to refuse or fail to provide requested information, especially «inconvenient» information, more often and without justification.

The rational calculation of risks for them is obvious: punishment for refusal is unlikely, while providing information may lead to negative consequences (dissatisfaction of management, exposure of abuses).

Therefore, the draft law significantly increases the likelihood of liability and restores the preventive function of the law, encouraging officials to comply with the requirements of the legislation on access to information.

The full text of the UNBA's comments and proposals on draft law No. 13332 can be found at link.