The Constitutional Court again tries the standards of anti-corruption legislation for compliance with the Constitution. And again- at the request of members of the Parliament.
On August 4, 47 MPs sent the constitutional motion, which in particular concerns the constitutionality of certain provisions of the Law of Ukraine “On Corruption Prevention”. Asset declarations are the focus of attention.
In fact, this is another attempt to call into question the obligation of public officials to submit declarations. According to the authors of the motion, this may restrict their rights and freedoms.
The CCU opened the case and on October 8, the open part of the plenary session took part. Unfortunately, so far, we have not heard the positions of the parties, because the meeting was deferred.
However, even now we can conclude that acknowledging certain provisions of the Law as inconsistent with the Constitution will lead to serious repercussions.
- This will be a significant blow to the system of corruption prevention and generally successful experience with public officials’ asset declarations.
- The absence of the obligation to declare assets will lead to a number of changes in criminal prosecution, for example, for declaring false information or illicit enrichment.
- In general, such a decision will be a significant rollback of the achievements of the anti-corruption reform in Ukraine.
Now let me come to the details.
Declaring the assets of state and local officials is not an innovation in the Ukrainian legal system. The e-declaration system has been operating/working on the official website of The National Agency on Corruption Prevention since 2016. These declarations, except for personal ones, are published for review in accordance with the current legislation. Asset declaration is one of the most effective anti-corruption tools. This is confirmed by numerous successful examples of international experience.
As of the day of passage of the Law of Ukraine “On Corruption Prevention,” corruption was on the list of the main real and potential threats to the national security and public stability of Ukraine. In particular, this was defined in Article 7 of the Law of Ukraine “On the Fundamentals of National Security of Ukraine”.
Therefore, any possible restrictions on the rights and freedoms that the declaration system may entail are inflicted in the interests of national security, as stipulated by the Constitution of Ukraine.
The provisions that members of the Parliament are trying to challenge are based on the principles of regulating anti-corruption activities contained in acts of international law- the Civil Law Convention on Corruption ratified in 1999, The Criminal Law Convention on Corruption, 1999, and the United Nations Convention against Corruption, 2003.
According to the Law of Ukraine “On Corruption Prevention,” the imposition of a declaration obligation on a person authorized to perform the functions of the state or local government cannot be considered as interference in the private and family life of this person.
In terms of open round-the-clock access to the Unified State Register of Declarations on the NACP website:
The content of the right to private and family life is not identical for persons authorized to perform the functions of the state or local government, and for persons who do not perform such functions.
The public also has the right to be informed about aspects of the private life of public persons, as indicated in the ECtHR decision (Karhuvaara and Iltalehti v. Finland). At the same time, the limits for interfering with the privacy of public persons, including access to information about them, are wider compared to individuals who do not have a public status.
Public figures, especially politicians, voluntarily and deliberately let every word and every act to be an object of a meticulous analysis by journalists and society as a whole (Porubova v. Russia).
However, public figures are not completely deprived of the right to privacy. Therefore, the court considers reports, even controversial ones, that may contribute to public debate. If the information/data concerns a person’s purely private life and cannot affect the public interest, an interference with the right to privacy will not be necessary and permissible (Von Hannover v. Germany).
In terms of the possibility of disclosing medical secrets in the process of entering data in the declaration and their further publishing, the declaration subject is not obliged to indicate personal data. Third parties will not be able to find information about the health conditions, illnesses, diagnosis, the fact of requesting medical assistance, treatment methods, private and family aspects of life (such fields are not even available in the declaration form). That is why information that makes it possible to identify a particular medical service will not get into the public space.
At the same time, if the results of a full verification of the declaration reveal characteristics of the unreasonableness of assets, the NACP can ask the declaration subject for written explanations. However, in this situation, the relevant employee of the NACP, who receives such data and illegally discloses it, will potentially be held liable under Article 145 of the Criminal Code of Ukraine “Unlawful disclosure of confidential medical information.”
If a certain person needs additional information, they can contact the NACP, which provides the necessary explanations. Thus, we do not consider this situation as a violation of the principle of legal certainty.
Lifestyle monitoring of declaration subjects
The arguments in the constitutional motion are based on assumptions. Based on the provisions of Article 51 of the Law of Ukraine “On Corruption Prevention,” lifestyle monitoring does not contain any signs of investigative activities/police operations.
The concept of “selective monitoring” adopted by the legislator does not give grounds to assert that the NACP actions violate the constitutional principle of equality. Article 51 of the Law of Ukraine “On Corruption Prevention” does not contain any specific instructions or criteria for selectivity. According to its powers, the NACP carries out law enforcement activities (it can bring guilty persons to administrative liability, etc.) and is a central executive authority with a special status.
Lifestyle monitoring of the declaring subjects is a form of state control over the integrity of persons performing certain functions of the state or local government.
In terms of the unconstitutionality of Article 366-1 of the Criminal Code of Ukraine
The law considers that family members of the declaration subject cannot be required to provide information about their transactions, expenses, etc. At the same time, the Law of Ukraine “On Corruption Prevention” imposes the obligation to obtain this information on the declaration subject.
If a family member refuses to provide the necessary information about their income, the declaration subject can submit a declaration without such information. Choosing such an option does not lead to the criminal liability of the declaration subject. At the same time, if the declaration subject does not notify about a change in the material status — an amount equivalent to 250 minimum living wages, they will be criminally liable. We consider such actions to be socially dangerous and such that require persistent criminalization.
Moreover, for declaring deliberately false information and deliberately failing to submit a declaration, disciplinary, administrative, and if the previously mentioned limits are reached, criminal liability can be applied. Asset declarations are effective tool for tracking the property status of persons authorized to perform the functions of the state and local government. Its aim is to prevent their illegal enrichment and malfeasance.
Declaring deliberately false information and deliberately failing to submit a declaration violates the requirements provided for by the Law of Ukraine “On Corruption Prevention.” Thus, it jeopardizes the effective functioning of the financial control system, which makes it impossible to effectively fight corruption in Ukraine, which is recognized at the official level as a threat to the national security.
The challenged provisions of legislation that MPs indicate in the constitutional motion generally and fully comply with the Constitution of Ukraine.