The abolition of the article on illegal enrichment by the Constitutional court caused a whole flurry of discussions and fears. DUMKA found out whether the repealed article indeed contradicted the presumption of innocence, what are the chances of losing visa-free regime and tranches of the IMF, how it will affect the international image of the country and whether the further fight against corruption is possible.
How correct is the court’s position on the violation of the presumption of innocence?
As the managing partner of Pravovest Law Firm Hlib Sehyda explained to DUMKA, the reasoning of the court is quite correct, since the repealed article contradicted the Ukrainian Constitution.
“If we consider the rule of law, the position of the CC is correct. Let’s not claim the judges are bad if the legislators couldn’t establish norms in the law correctly. Why they did so – accidentally, being under pressure, or on purpose to destruct people, knowing that this rule will never work – it is a question to the deputies and authors of the law.
Such a norm should exist and can be formulated correctly. There is a formulation in the UN Convention against corruption, also accepted by Ukraine: “the illegal enrichment, that is, a significant increase in the assets of a public official, which exceeds his legitimate income, and cannot be reasonably justified.”
Roughly speaking, if we used this formulation in the Ukrainian legislation – “the person couldn’t rationally justify the enrichment within the judicial process”, the CC wouldn’t be able to cancel the article anymore. Therefore, the primary task for now is to introduce a bill with a legally competent formulation. And to ask the deputies why they first voted for such a norm, and then signed the petition to the Constitutional court,” Hlib Sehyda said.
Ihor Markevych, the founder of Amigo Partners law firm and REVICO consulting company, also agrees with the position of the Constitutional court. The expert emphasizes that we have clear rules on proving crimes and the presumption of innocence, and they do not contain any exceptions for corruption offenses.
“However, we should also pay attention to the opposite opinion of the judge Serhii Holovatyi, who did not support the decision of the Constitutional court and provided arguments in support of his position, referring to the practice of the European court of human rights, which is compulsory in Ukraine.
In its decision, the Constitutional court has also fairly stressed that the fight against corruption should be carried out exclusively by legal means in compliance with the constitutional principles and regulations of the legislation adopted in accordance with the Constitution of Ukraine,” the expert explained.
But Dmytro Sinchenko, the head of the public organization Association of Political Sciences, noted that the argument about the violation of the presumption of innocence was refuted by a number of Ukrainian and international experts.
“The decision to repeal the article on the violation of the presumption of innocence is no more and no less than an attempt of the ruling elite to avoid responsibility for their crimes. And this decision is beneficial not only to the deputies who were the initiators of this process but also to the judges who accepted this decision because they might as well be potentially convicted under this article. The argument of the initiators of the abolition of the article on the violation of the presumption of innocence was completely refuted by both international and Ukrainian experts and scientists. This article may and should exist because even in its current form it does not violate the presumption of innocence,” Mr. Sinchenko said.
What will happen to the already open proceedings?
According to Hlib Sehyda, due to the abolition of the article, now it is impossible to apply the norms on illegal enrichment to all declarations of officials submitted during the last three years.
“It is no longer possible to apply the norms on illegal enrichment to all the declarations of officials that they submitted under the new norms for the last three years. If the deputies adopt the new formulation of this rule, it will be possible to apply it only to electronic declarations submitted after the entry of the law into force. The deadline for submitting the declarations is April 1. Thus, most likely, it will be possible to prosecute officials for illegal enrichment only for the declarations for the year 2019 submitted in 2020,” the expert explains.
Dmytro Sinchenko also supports the opinion of Mr. Sehyda, emphasizing that the abolition of the article actually negates all the work of NABU and even gives a chance to the accused to file a counterclaim and turn from the accused to the victims.
“More than 60 proceedings of the National Anti-Corruption Bureau, in fact, all its work during its existence, will go down the drain. The cases that are currently reviewed by the courts will be closed. All corrupt officials will happily go free and will continue their hard work of robbing our state with clear consciousness and a double zeal. I do not exclude that the most brazen ones will actually file claims for compensation for moral and material losses for “harassment” by law enforcement agencies,” the expert comments.
Liliia Brudnytska, the expert of the Center for structural politology “Choice” is convinced that we should expect the lawsuits from the defendants in cases of illegal enrichment.
“Of course, the politicians and officials will go to court, because “you snooze, you lose”. This is extremely important for their image both at home and abroad, especially in the West. The presence of the case in court by its mere fact partially “whitens” the corrupt official. Perhaps, in this regard, we will observe extremely interesting personnel decisions,” the expert believes.
The end of the IMF tranches and visa-free regime?
Hlib Sehyda is convinced that we may really face a number of problems in obtaining new tranches from the International Monetary Fund. But the decision on visa-free regime depends on the assessment of the European Commission, which is responsible for monitoring compliance.
“There is a norm in the list of the rules on the visa-free regime that the EU may cancel visa-free regime: “the European Commission must monitor the implementation of specific requirements which were crucial in making the decision on the readiness to the introduction of the visa-free regime. If the EC report shows that at least one of the specific requirements in a particular state is no longer met, the procedure (of preparation for suspension of the visa-free regime) should be initiated.”
As for the IMF – they will not be able to take their tranches back, but the problems with obtaining new ones may actually arise,” the managing partner of Pravovest Law Firm believes.
Dmytro Sinchenko shares a similar opinion. According to him, many commitments of Ukraine were connected to this particular article which was repealed by the court.
“The consequences may be simply catastrophic – from the loss of support from the International Monetary Fund to the termination of the visa-free regime with the EU countries. We had a lot of obligations connected to this small article of the law. It forms the basis of the whole anti-corruption legislation and the entire reform. Corrupt officials knew what to hit to avoid responsibility. And they hit it just before the elections. However, such a decision may significantly affect the rating of the current president, up to the fact that it may cause his defeat in the presidential elections,” Mr. Sinchenko says.
How will the abolition of the article affect the fight against corruption?
Ihor Markevych explained in the comments for DUMKA that the fight against corruption will not stop with the abolition of the article on illegal enrichment, but may become much more complicated.
“First, the cases regarding illegal enrichment will be closed. Secondly, the nature of the electronic declaration will be formal, because it will not be necessary to explain certain incomes. It is possible to fight corruption without this article, but this process will be more difficult,” the commentary says.
Dmytro Sinchenko is also reflecting on the reduction of the effectiveness of further anti-corruption work. The expert believes that the abolition of the article negates the sense of electronic declarations and even the existence of anti-corruption bodies.
“The abolition of this article is a huge victory for corrupt officials. Of course, it is possible to counteract corruption without it, but we were able to see the effectiveness of such counteraction during all the previous years of our independence when the level of corruption was just growing year by year. Corruption declined only after the Revolution of Dignity, but now we see its undisguised revenge. Without this article, the sense of electronic declaration is lost, the sense of the existence of new anti-corruption bodies is lost, and there is a large amnesty for corrupt officials. Both present, and future,” the speaker assumes.
A similar opinion was expressed by Hlib Sehyda – he stressed that in any case, the fight will not stop at this point: there are other mechanisms and norms through which offenders can be brought to justice.
“Of course, we can fight. We can record the facts of bribery, illegal decisions of officials etc. Even the “illegal enrichment” may be identified and punished due to the rules on tax evasion.
After all, corrupt officials don’t specify in their declarations “I received a bribe – I paid all taxes – I bought a new car”. The limit on cash transactions is UAH 50 thousand. All expensive purchases can be tracked. There is also a responsibility for false declaration. However, the norm on illegal enrichment significantly expands the capabilities of anti-corruption bodies and increases the chances of bringing corrupt officials to justice,” the expert said.
But Lilia Brudnytska stressed that the court’s decision would have no impact on the fight against corruption. In her opinion, it is much more important that from now on anti-corruption structures will change their “weight category”.
“The decision of the constitutional court will not affect the fight against corruption in any way since corruption is carried out, so to speak, not under one article, there is usually a “bouquet” of violations. The Ukrainian legislation contains many anticorruption positions, strong enough to give law enforcement authorities a broad range of tools to eradicate this phenomenon,” Ms. Brudnytska says.
Are there any risks in foreign policy?
According to the forecast of Hlib Sehyda, the negative consequences in the international arena should indeed be expected. Moreover, the abolition of the article is supported by other aspects that are not too useful for the image of the country.
“There will definitely be a reaction of the international community. Ukraine worsens its image and harms relations with the West in the background of the missing creation of an anti-corruption court and a recent scandal with corruption in the defense sector,” Mr. Sehyda explains.
As a result, according to Dmytro Sinchenko, we may weaken our position in the war with Russia, because the reduction of international support can unleash the aggressor.
“In foreign policy, we as a state will receive huge reputational losses, because the abolition of this rule of law will lead to Ukraine’s violation of its international obligations and agreements. A decrease in international support of Ukraine will have a negative impact on our position in the Russian-Ukrainian war, and may lead to a new large-scale offensive of the Russian army, and accordingly – an increase in human casualties in the ranks of our Armed forces and among the civilian population,” the expert predicts.
Text by Dmytro Zhuravel
