Foreign Policy Research Institute

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Foreign Policy Research Institute

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Ukraine’s long fight against corruption has failed

The Constitutional Court of Ukraine declared unconstitutional article 368-2 of the Criminal Code of Ukraine, which provided for the punishment of officials for illegal enrichment. The court explained its decision by the fact that this article violates the principle of presumption of innocence and inadmissibility of bringing a person to responsibility "for refusing to give evidence or explanations about himself/herself, family members or close relatives".

The corresponding submission to the Constitutional Court of Ukraine was sent by 59 people's deputies in December 2017. Some of them "pass" in criminal cases under this article. At the same time, more than 20 signatories of the constitutional submission voted for the article 368-2 in this edition in 2014. The decision of the constitutional court is mandatory and not subject to appeal. Decriminalization of illegal enrichment will mean a complete amnesty for absolutely all officials with dubious incomes and practically neutralizes all anti-corruption reform in Ukraine. So think representatives of 11 anti-corruption organizations of Ukraine representatives of 11 anti-corruption organizations of Ukraine who published the corresponding joint statement. The decision on the unconstitutionality of this article of the Criminal Сode will be retroactive in effect. The National Anti-Corruption Bureau of Ukraine (NABU) has already confirmed that the decision of the Constitutional Court means that all criminal proceedings regarding the illegal enrichment of suspects will be closed. As well as cases that are already being heard in court.

The parliamentary faction of the Petro Poroshenko Bloc (BPP) has already stated that they will initiate the "urgent" development of a bill, where the article on illegal enrichment will "fully comply with the Constitution." President Petro Poroshenko, commenting on the decision of the Сonstitutional Сourt, also hastened to say that he will submit to Parliament a new draft law on the responsibility of officials for illegal enrichment. The head of state assures that the new version of the article will be written in such a way that there will be nothing to complain about.

However, one can hardly rely on the sincerity of the President, who constantly slowed down the implementation of anti-constitutional reforms, therefore, Constitutional Court, controlled by Poroshenko in a timely manner played along in this. After all there is no 100% guarantee that Poroshenko will be able to be re-elected for a second presidential term, and then the anti-constitutional reform itself can become an immediate threat for him and for corrupt judges. Evaluating such a statement made by President Poroshenko, the Executive Director of the Center of counteraction of corruption Daryna Kalenyuk notes: "It is cynical fraud. The consequences of the Constitutional Court's decision are irreversible. This decision cannot be replaced by a new law. If there will be a new law on illegal enrichment, it will act on those actions that were committed after the entry into force of this law. This means that there will be a full amnesty for corrupt officials who illegally enriched themselves, " the expert notes, according to "Deutsche Welle".[1]

At the same time, the G7 countries, together with the World Bank, called on the Ukrainian authorities to intensify efforts to ensure the effectiveness of anti-corruption legal institutions by restoring criminal liability for illegal enrichment in accordance with international standards. The corresponding statement was posted on Twitter of the French presidency of the group of G7 ambassadors in Kyivv on Monday, March 4. The statement states that the recent abolition of responsibility for illegal enrichment in the Criminal code is "a significant defeat in the fight against corruption in Ukraine."" This weakened the influence of the entire anti-corruption architecture, including the Supreme Anti-Corruption Court, which should soon be established and, as expected, had to decide on a significant number of cases of illegal enrichment, and it also affected the ability of the NABU to investigate corruption in the higher levels of government"2, - the statement said according to "European Truth".

The G7 countries and the World Bank emphasize that ongoing investigations into illegal enrichment gave hope for bringing to justice those who took advantage of their position for personal enrichment. They note that the practice of criminal punishment for illegal enrichment exists in many countries of the world. "Courts around the world have recognized that punishment for illegal enrichment is a powerful tool in the fight against corruption," the statement said, as reported by "European Truth". "The G7 and the World Bank call on the Ukrainian authorities to intensify efforts to ensure the effectiveness of anti-corruption legal institutions, including the restoration of criminal liability for illegal enrichment in accordance with the principles of the UN, OECD and ECHR, and to find a way to continue dozens of investigations and criminal prosecutions, the completion of which was jeopardized by this resolution," the statement reads, reports "European Truth".[2]

In turn, the EU Anti-Corruption Initiative in Ukraine (EUACI) has refuted the evidence of the Constitutional Court in support of the abolition of the criminal article on illegal enrichment. "A General comment to the arguments in the constitutional petition is their general nature "3, – reported in the EU initiative, reports"". In the constitutional petition dated December 12, 2017, states that Part 1 of article 368-2 of the Criminal Code of Ukraine contradicts the constitutional principles of protection from self-incrimination, the presumption of innocence, the right to a fair trial and equality of the parties, the principle of legality, the principle of "non bis in idem" and the principle of no retroactive effect. In addition, the article does not require the accused to give any explanation and does not oblige the accused to provide information in a direct form. "The article 368-2 of the criminal code should be interpreted in the light of other provisions of the Criminal Code, which establishes general rules for the application of criminal law in time. According to such an interpretation, there is no reason to argue that  the definition of illegal enrichment provides for the application of the law with retroactive force, " the EUACI believes, according to "European Truth".[3]

Thus, Ukraine gains a very negative reputation in the international arena, because on the one hand Ukraine is fighting corruption within the country and at the same time cancels the article on illegal enrichment. And therefore no wonder why we received a lot of sharp criticism directed at Ukraine. Of course, the adoption of this decision is beneficial for the corrupt officials, but it poses a great threat to relations with our partners. Accordingly, we cannot but agree that the high politicization of the Constitutional Court negate Ukraine's fight against corruption.