April 17, 2019
On February 26, the Constitutional Court of Ukraine adopted a decision, according to which the article of the Criminal Code of Ukraine that established liability for illegal enrichment for public servants, was recognized unconstitutional. There were quite a lot of discussions around this article, and, despite the decision of the CCU, many experts believe that its previous version was in accordance with the Constitution, although it had somewhat imperfect design.
Criminalization of illegal enrichment is not a Ukrainian invention. The UN Convention against Corruption contains a provision stipulating that Member States consider the possibility of a deliberate illegal enrichment being a crime. Undoubtedly, they do it subject to the constitution and the fundamental principles of the legal system of each country. This kind of responsibility exists in around fifty countries of the world.
In Ukraine, responsibility for this crime was introduced in 2011, but the effective wording at that time had nothing to do with the act of illegal enrichment, except for the title of the article of the Criminal Code itself. Therefore, in February 2015, Ukrainian parliamentarians approved a new version of this article in order to bring it in line with the standard established by the Convention.
Starting from 2015, investigators and prosecutors have begun investigating crimes of illegal enrichment. Detectives of the National Anti-Corruption Bureau of Ukraine together with prosecutors of the Specialized Anti-Corruption Prosecutor’s Office were the most active in this area. During almost four years of investigations, the former prosecutor of the ATO, the head of the State Audit Service, the Minister of Infrastructure and one judge have been prosecuted for this crime. Their cases have already been submitted to the court, but due to the decision of the CCU, Ukrainian society could not see fair sentences against these officials – they simply escaped the punishment for this crime. Another 60 cases were at the investigation stage by the NABU and SAP, and the disclosed list of officials prosecuted in these cases strikes with its diversity. Unfortunately, all proceedings under this article are now closed. However, investigators and prosecutors should carefully investigate whether the actions of these officials have any other evidence of other crimes, such as tax evasion.
The Constitutional Court of Ukraine determined that the article about unlawful enrichment is unconstitutional because of non-compliance with the principle of legal certainty, alleged violation of the presumption of innocence of a person and the transfer of the burden of proof to the accused person, who allegedly had to prove his/her innocence. Each of these arguments can be refuted. In particular, the violation of the presumption of innocence and the transfer of the burden of proof simply could not take place, as the investigation procedure is determined by the provisions of the Criminal Procedure Code of Ukraine, which guarantee to any person the presumption of innocence, and the right to remain silent, while the obligation to prove beyond reasonable doubt the commission by a person of the crime relies exclusively on the prosecution side.
However, these discussions about the decision of the Constitutional Court of Ukraine, unfortunately, will not renew investigations into Ukrainian officials over the last four years. It is impossible to challenge this decision, only the CCU itself can develop and specify the legal position of the Court, modifying it in the event of a significant change in regulatory framework.
Now, the public, the legal community and international experts are interested in restoring criminal responsibility for illegal enrichment. Immediately after the decision of the CCU, 14 different draft laws were submitted to the Parliament for consideration – the President and the deputies demonstrated a remarkable speed, which, however, damaged the quality: analysis of the first submitted draft laws revealed their imperfection. At the moment, these draft laws are being finalized by a working group which includes deputies, scholars, lawyers, prosecutors and law enforcement officials, international experts. Basic version of the new draft law has become the output of its activity.
However, even despite the renewal of criminal liability for illegal enrichment, the Constitutional Court of Ukraine by its decision actually legalized all the corruption income of Ukrainian officials, which have been acquired over the last four years, since the new law on criminal liability will not have a retroactive effect in time.
It is now important to adopt such a wording of the article of the Criminal Code, which will not even allow to doubt its unconstitutionality, as well as create an effective mechanism for civil confiscation of unjustified assets of Ukrainian public servants.
While it is still possible to return the article on illegal enrichment to the Criminal Code of Ukraine in the new wording, renewal of prior investigations would not be possible. This means that in this issue Ukraine just lost four years and missed the chance to persuade the public that officials will bear responsibility for the acquisition of wealth received by them from obscure sources.
Authors: А. Marchuk, D. Kalmykov, M. Khavroniuk (Centre of Policy and Legal Reform)Author : Ukrainian Liaison Office in Brussels