THE CCU REPEALED THE GREATER PART OF ANTI-CORRUPTION REFORM: A LEGAL ANALYSIS OF THE DECISION

On 27 October 2020, the Constitutional Court of Ukraine adopted Decision No.13-р/2020 in the case No.1-24/2020(393/20) on the constitutionality of separate provisions of the Law of Ukraine “On Corruption Prevention” and the Criminal Code of Ukraine, which it declared inconsistent with the Ukrainian Constitution (unconstitutional):

• Article 11, part 1, clauses 6, 8; part 1, clauses 1, 2, 6–101, 12, 121; Article 12, parts 2-5; Article 13, part 2; Article 131, part 2; Article 35; Article 47, part 1, paragraphs 2, 3; Articles 48–51; Article 52, parts 2, 3; Article 65 of the Law of Ukraine “On Corruption Prevention” of 14 October 2014 No.1700–VII with changes;
• Article 3661 of the Criminal Code of Ukraine.

They shall become invalid since the adoption of this Decision by the Constitutional Court of Ukraine. The CCU’s decision is binding, final, and not subject to appeal.

Judge Serhii Holovatyi has issued a counter opinion and Judge Vasyl Lemak has issued a separate opinion on the constitutionality of separate provisions of the Law of Ukraine “On Corruption Prevention” and the Criminal Code of Ukraine.

We shall note that the constitutional motion in this part of the adopted Decision concerned other provisions of the legislation, namely: separate provisions of Article 1, part 1, paragraph 17; Article 1, part 1, paragraph 18; separate provisions of Article 11, part 1, clause 8; Article 12, part 1, clause 2; clauses 2, 21, 3; separate provisions of clause 8; Article 46, part 1, clauses 9, 10, 11; Article 46, part 3; Article 47, part 1, paragraphs 2, 3; separate provisions of Article 50, part 1; Article 51; Article 52, part 2 of the Law of Ukraine “On Corruption Prevention” and related Article 3661 of the Criminal Code of Ukraine.

In addition, on 27 October, the CCU ruled the Resolution on the division of constitutional procedure into separate constitutional procedures on the constitutionality of Article 368-5 of the Criminal Code of Ukraine; separate provisions of the Civil Procedural Code of Ukraine, of the Laws of Ukraine “On the Prosecutor’s Office,” “On the National Anti-Corruption Bureau of Ukraine,” “On the State Investigation Bureau,” “On the National Agency of Ukraine for Finding, Tracing, and Management of Assets Derived from Corruption and other Crimes.”

Therefore, we will still be able to witness the CCU’s Decision on the constitutionality of illegal enrichment, special confiscation, etc.

This analysis aims to provide a legal assessment of the justification of the legal position outlined in Decision No.13-р/2020. The analysis shall be structured in accordance with the structure of the Decision.

 

What were the arguments presented by the CCU?

On the principle of independence and non-interference in the activity of a judge; the balancing of the distribution of state power

The Court’s arguments about the exclusivity of the judiciary set out in the Decision appear to be manipulative:

• “It is the judicial and constitutional control bodies that perform, in particular, the main functions of the proper legal deterrence of legislative and executive power, as well as the exercise of control over these branches of power to prevent transgression of powers.”
• “The Constitutional Court of Ukraine emphasizes that the exclusivity of judicial and especially constitutional control bodies involves, inter alia, the special procedure for the formation of the judiciary, including internal judicial bodies exclusively in terms of the prosecution of judges.”

 

Such statements do not correspond to reality due to the fact that the principle of power distribution presupposes the distribution of state power into three branches: legislative, executive, and judicial.

On numerous occasions, the CCU has stated in its prior decisions (which contradict its latest decision) the following:

 

• “The purpose of the functional distribution of state power into legislative, executive, and judicial (Article 6 of the Constitution of Ukraine) is the demarcation of powers between different bodies of state power and the prevention of state power assumption by one of the branches of power” (clause 2, paragraph 1 in the reasoning of the Decision of the Constitutional Court of Ukraine in the case on the constitutional motion of the Supreme Court of Ukraine with regard to the conformity with the Constitution of Ukraine (constitutionality) of the provisions of Articles 19, 42 of the Law of Ukraine “On the 1999 State Budget of Ukraine” (the case on the financing of the courts) of 24 June 1999 No.6-рп/1999)
• The principle of the distribution of power serves as the basis for the organization and exercise of state power in Ukraine. The Constitution of Ukraine does not contain such a term as “the branch of power.” The statement from the constitutional motion saying that provisions of Article 30, part 1, clauses 1, 2, 4, as well as Article 38, clauses 1, 2 of the Law do not comply with the constitutional provision on “non-interference of the representatives from any branch of power in the internal activity of the other branch,” is incorrect, for there is no such provision in the Constitution of Ukraine.” (clause 7, paragraph 6 in the reasoning of the Decision of the Constitutional Court of Ukraine in the case under the constitutional motion of the Supreme Court of Ukraine on the conformity with the Constitution of Ukraine (constitutionality) of the provisions of Article 1, parts 2, 4; Article 18, part 1, clause 8, paragraph 2; Article 25, part 1; Article 30, part 1, clauses 1, 2, 4; Article 31, part 1; Article 32, part 1; Article 33, part 2, clause 2; Article 37, parts 2, 3, clause 2; Articles 38 and 48 of the Law of Ukraine “On the High Council of Justice” (the case about the Law of Ukraine “On the High Council of Justice”) of 21 May 2002 No.9-рп/2002)
• “The distribution of state power is the structural differentiation of three main equivalent functions of the state: legislative, executive, and judicial. It represents the functional certainty of each of the state bodies, presupposes not only the demarcation of their powers but also their interaction, a system of mutual checks and balances, which aim at the provision of their cooperation as a unified state power. The principle of the distribution of state power makes sense only when all the bodies of state power function under a single legal framework.” (paragraph 2, clause 4, sub–clause 4.1, paragraph 3, sentence 1 in the reasoning of the Decision of the Constitutional Court of Ukraine in the case under the constitutional motion of 50 people’s deputies of Ukraine in the case on the conformity with the Constitution of Ukraine (constitutionality) of the provisions of Article 219, parts 2, 3, 4 of the Rules of Procedure of the Verkhovna Rada of Ukraine (the case about the Rules of Procedure of the Verkhovna Rada of Ukraine) of 1 April 2008 No. 4-рп/2008).

 

It should be noted that the CCU also interpreted the rules of the Constitution of Ukraine in the part, which explains the principle of independence. Thus, the CCU interpreted that the independence of judges constitutes an integral part of their status. It is a constitutional principle of the organization and functioning of judges, as well as the professional activity of judges that are subject to no authority other than the law in the administration of justice. The independence of judges is ensured mainly through the special procedure for their election, appointment, and removal from office; the prohibition of any influence on judges; the protection of their professional interests; the special procedure for the disciplinary prosecution of judges; the personal security of judges and their families provided by the state; guaranteed financing and proper conditions for the functioning of courts and the activities of judges, their legal and social protection; the prohibition for judges to belong to political parties and trade unions, participate in any political activity, have a representative mandate, to concurrently engage in certain types of activities; the legal prosecution of perpetrators for contempt of judges and the court; judicial self-regulation (decision No.19-рп/2004 of 01.12.2004).

Therefore, we arrive at the conclusion that the independence of the judiciary refers to two main aspects: institutional and procedural.

In the institutional dimension, the independence of judges refers to the guarantee system that ensures the stability of the judiciary as one of the branches of power. This stability is provided with the help of the special procedure for election, removal from office, prosecution, etc.

The procedural independence is provided with the judges’ guarantees on non-interference in their activity, particularly, due to the criminalization of such interference), the provision of financing and organization instruments for the procedural activity.

Developing the constitutional provisions that provide for the independence of the court and the judiciary, the Law of Ukraine “On the Judicial System and the Status of Judges” establishes that courts are independent of any illegal influence in the administration of justice. Courts administer justice on the basis of the Constitution, the Laws of Ukraine, and the principles of the rule of law.

Interference in the administration of justice, any kind of influence imposed on the court or judges, contempt of the court and judges, the collection, storage, use, and distribution of information orally, in writing or through any other medium with the purpose of defamation of the court or the exertion of influence on the impartiality of the court, calls for the non-enforcement of judicial decisions are prohibited and prosecuted by the law. State power and self-regulation bodies, their officials are ought to refrain from statements and actions that might undermine the independence of the judiciary. (Article 6 of the Law of Ukraine “On the Judicial System and the Status of Judges”)

At the same time, upon consideration of the issue related to the right to an independent court, in the case of Bellios (A132 paragraph 64), the European Court of Human Rights has stated the following: “…the court (…) must meet a number (…) of requirements — independence, especially from the executive power, impartiality…”

It should be noted that the concept “an independent court” covers two main aspects: the independence from the executive power and the parties (the case of Ringeisen, A13 paragraph 95). In the assessment of independence, the following considerations must be taken into account: “…The Court recalls that in order to establish whether a tribunal can be considered as “independent,” regard must be had to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence” (the case of Findlay, Reports 1997 — I, p. 198 paragraph 73).

As to the impartiality of the Court, there are two requirements: the tribunal must be subjectively free of prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (case of Findlay, ор. сіt). To meet these requirements, the court must correspond to the subjective and objective test: “The existence of impartiality for the purposes of Article 6 para. 1 must be tested in a subjective approach, that is based on the personal conviction of a given judge in a given case, and an objective approach, that is determining whether the judge offered guarantees sufficient to exclude any legitimate doubt in the respect of impartiality” (case of Piersack, А 53 para. 30).

Therefore, if we go back to Decision No.13-р/2020 and resort to a detailed analysis of the CCU’s previous standings we arrive at the conclusion that the distribution of state power in Ukraine into legislative, executive, and judicial is exercised in order to prevent the usurpation of state power in one center, with the necessary existence of a system of checks and balances. A system of checks and balances presupposes mutual control mechanisms at the disposal of power branches, which directly derives from the semantics of the word “balance.” The mutuality of such mechanisms means that each of the branches has levers of control and influence on one another; the amount of such levers ought to ensure parity and make it impossible for one of the branches to reinforce its power at the expense of another one.

Thus, the idea of a separate control system and declaration for the judiciary, outlined in the latest decision of the CCU, completely invalidates the principle of checks and balances, as well as strengthens the judiciary, which contradicts the constitutional principle. It is a cardinal change of the legal position of the Court, outlined in the previous decisions; and not justified by the substantial changes in the regulation, or by the existence of objective evidence to justify the need to improve the protection of constitutional rights and freedoms with due regard for Ukraine’s international obligations.

 

On the evaluation of the argumentation of participants in the proceedings regarding e-declaration and anti-corruption reform

The Court further did not resolve the issues raised in the constitutional motion. The Court reasoned that “…the judicial power, taking into account the essence of its functions, is the least dangerous for democratic governance and other branches of state power, as well as for natural human rights laid down in the Constitution of Ukraine, for it has fewer opportunities to violate or exert a negative influence on them. Since the legislative power sets the rules, the executive power exercises coercion, the judicial power does neither. The judiciary does not have either military, or financial power, or direct leverage over other branches of state power. That is why it is more exposed to the encroachment by other branches of state power.” Therefore, “any kind of the exertion of influence on judges is prohibited” should be interpreted as “the provision of the independence of judges on account of their administration of justice, as well as the prohibition against performing any actions towards judges in order to prevent judges from performing their professional duties or cause a miscarriage of justice, etc., regardless of the way such actions are manifested on the part of state bodies, institutions and organizations, local self-government bodies, their officials and employees, natural and legal persons.”

The Court also noted that “any pressure on the judiciary exerted by the representatives of the legislative and executive power is precluded, including during the consideration of cases, nor is it allowed to interfere in its activities in order to make certain decisions.” However, these provisions do not clarify how the verification of judges’ declarations would prevent them from performing their professional duties or influence their decisions. During the verification of declarations, which has a legitimate purpose (the prevention of corruption), the NACP does not evaluate decisions made by judges in the administration of justice.

It is interesting that the Court also refers to international standards, for instance, the Opinion of the Consultative Council of European Judges of 9 November 2018 No.21 (2018) on the prevention of corruption among judges. The Court relied on the following statement: “the procedure for corruption inspection, dismissal, and prosecution of the individuals, who have failed to pass the inspection, may be used as the instrument for misconduct and the elimination of politically “undesirable” judges.”

However, the Court failed to acknowledge the other part of this document where it says that “it is important for each judiciary to introduce robust rules on the recusal and self-recusal of judges in the event of an apparent or even only potential bias in a given case. All member States have rules of this kind (either legislative or case law-based).” Sadly, Ukraine does not have such rules anymore, for with the help of this Decision the Court has declared them unconstitutional without providing any reasons both for such elimination (which was not even challenged by the subjects of the motion, even though their argumentation likewise was not considered in the Court), and for other eliminated regulations that used to ensure corruption prevention.

 

What are the consequences of the Court’s decision?

It is very interesting that the Court has considered eliminated Article 11, part 1, clause 8 of the Law “On Corruption Prevention,” which is the basis and reason for the institutionalization of all the regulations of the Law regarding the supervisory powers of the National Agency for Prevention of Corruption as the executive body of power, as a holistic norm, for “the distinction of any provision is impossible due to the risk of distortion of the will of the legislature.” This is the very approach and focus on this provision that allowed to declare unconstitutional nearly the entire activity of the NACP towards all officials, which was not even raised in the motion to such an extent.

Guided by this approach, the Court was able to proceed with such unacceptable deviations from the motion and cancel inspections of the State Tax Service, National police, and other executive bodies of power that exercise their powers towards judges, as well. Although the Court will have such an opportunity in the future, considering the absolute independence of judges established in the Decision, with the judicial system turning into “the thing in itself, where people are their own judges and prosecutors” and extending beyond the limits of the rule of law. Following the logic of the reasoning regarding the encroachment on the independence of the judiciary by the executive power (the NACP), it is completely unclear why the Court has not simply declared unconstitutional paragraph “ґ” of Article 3, part 1 of the Law “On Corruption Prevention.” This paragraph specifies entities, subject to the requirements of anti-corruption legislation, namely: “judges, the judges of the Constitutional Court of Ukraine, the Chairman, the Chairman Deputy, members, inspectors of the High Council of Justice, officials of the Secretariat of the High Council of Justice, the Chairman, the Chairman Deputy, members, inspectors of the High Qualification Commission of Judges of Ukraine, Secretariat officials of this Commission, officials of  the State Judicial Administration of Ukraine, jurors.”

Such Decision would also be negative in terms of anti-corruption reform, since judges would be exempt from the supervision of the legislature on corruption prevention, including the requirement of filing e-declarations. However, other entities, especially top officials, would reserve the special regulation of conflicts of interests and verified declarations. As a result of the Decision, the NACP would also not lose most of its supervisory powers over all bodies of power, particularly over whistleblowers’ protection verification, declarations of all entities and the reporting of political parties with the compilation of protocols, special verifications of declarations of candidates in top officials from the previous year (the decision on appointment or rejection is made after the special verification), inspections in the framework of prosecutors’ certification of compliance of their expenses and property with the declared income, etc.

 

At present, it appears that the NACP can conduct only the following:

 

• the assessment of corruption and the research of its situation;
• the development of Anti-Corruption strategy projects and state program on its implementation;
• the provision of methodical assistance for anti-corruption programs, etc.;
• campaigns to raise awareness of a negative attitude towards corruption;
• conferences, seminars, and meetings on corruption prevention and counteraction.

The theory of law implies that every norm consists of three components: hypothesis, disposition, sanction. So far, the Decision of the CCU has virtually eliminated sanction and disposition of the institute of e-declaration without explaining how it would help combat corruption, particularly in the judicial system. This completely invalidates the continued legal meaning of the existence of this institution as it stands.

Interestingly, to organize and implement measures on corruption prevention and detection, the Law provided for the establishment of authorized units (entities) for the prevention and detection of corruption, particularly in the Supreme Court, the High Anti-Corruption Court, the Constitutional Court of Ukraine, Secretariats of the High Council of Justice, the High Qualification Commission of Judges of Ukraine.

They are still defined, however, all (!) their functions and tasks are declared unconstitutional, which clearly does not correspond to the Court’s position that control can be exercised from the inside of the judicial institution’s structure. After all, their powers included, for instance, control over the implementation of measures to prevent corruption and corruption-related offenses, the exercise of control over anti-corruption legislature, including the consideration of reports on violation of the requirements of this Law, the protection of employees, who have reported violations of the requirements of this Law, from the imposition of negative measures of influence by the executive head or employer in accordance with the legislation on the protection of whistleblowers.

Therefore, unfortunately, whistleblowers in the judiciary, who could report corruption in the judiciary, are now also unconstitutional. The court does not cite any grounds in substantiating such an incomprehensible legal innovation. We are not aware of such international standards for the protection of whistleblowers. Probably, the reporting judge, who admitted to compiling this part of the draft Decision, may know more about the world’s best practices in this field or consider them common knowledge, for the word “whistleblower” is mentioned zero times in the Decision.

Obviously, whistleblowers-insiders (not from the executive branch) also somehow violate the independence of the judiciary; otherwise why would they establish that their protection contradicts the Constitution? Although the Constitution prohibits the exertion of any influence on a judge but not on the judiciary. This is a blatant violation of human and civil rights and freedoms, devoid of any appropriate justification in the law.

The Court has also established that “the criminalization of a specific human act is possible on condition that it meets, in particular, a set of such criteria: significant (substantial) social danger of the act; the spread of similar acts in society; inefficiency of other sectoral legal means of influencing these actions; the impossibility of successfully combating the act with less repressive methods.

In case of non-compliance by the legislator with the specified criteria of criminalization, a situation may arise when an act is recognized as a crime, which is not characterized by the nature and degree of public harm sufficient for criminalization.”

Thus, instead of the legislator, the Court concluded that “by its legal nature, the filing of knowingly false information in the declaration by the legal entity, as well as intentional failure to file the declaration, although reveal a violation of anti-corruption legislation, however, such actions cannot cause significant harm to physical or legal entity, society, or the state to the extent necessary to recognize them as socially dangerous,” hence, taking over the powers of the legislative branch. Because in accordance with Article 92, part 1, clause 22 of the Constitution, the laws alone define acts that are crimes, administrative or disciplinary offenses, and liability for them.

But the CCU considers that declaring knowingly false information in the declaration, as well as intentional failure on the part of the legal entity to file the declaration ought to serve as grounds for other kinds of legal liability; criminal prosecution is an excessive punishment for these offenses. Supposedly, the negative consequences experienced by the individual prosecuted for the offenses under Article 3661 of the CC of Ukraine are disproportionate to the inflicted or potential harm in the case of the commission of appropriate actions (unfortunately, the Court does not explain how it determines such harm and what corresponding negative consequences are). Thus, to gather evidence in administrative proceedings for filing false information in the declaration or for failure to file it, and to prove, for instance, use of property owned by a third party will be very difficult. Moreover, such protocols will be considered in ordinary courts, not in the High Anti-Corruption Court of Ukraine (unless you transfer jurisdiction to it). Even those sentences that the HACC has already pronounced under this article will be possible to review under exceptional circumstances. Excluding the closure of all current proceedings.

But one of the most destructive actions of the Court was that, virtually, after the repeal of Article 65 of the Law of Ukraine “On Corruption Prevention” any prosecution for corruption, in general, or corruption-related offenses of any official is completely eliminated. Probably, because the Court considers prosecution of a judge for corruption to be an encroachment on its independence, as well. However, a final decision on prosecution for corruption is made not by the NACP or other executive body of power but by the court. Apparently, courts and judges are also not allowed to infringe upon the independence of the judiciary either, and the Court wanted to say that corruption is an organic part of such independence?

The Court also created a “legislative pause” in the anti-corruption sphere when it did not provide time in the decision for the parliament to resolve this issue. In fact, the decision has already taken effect. Formerly, the CCU interpreted the provision of the Constitution “decisions of the Constitutional Court of Ukraine are binding on the territory of Ukraine, final and not subject to the appeal” as laws, other legal acts or their individual provisions declared unconstitutional under these decisions that are not applicable as no longer valid. And the fact that the Court has the right, if necessary, to determine in its decision the procedure and timing of its implementation and to impose an obligation on the relevant state bodies to ensure its implementation. That said, regardless of whether the decision of the Constitutional Court of Ukraine determines the procedure for its implementation, the relevant state bodies are obliged to act only on the basis of, within the powers and in the manner prescribed by the Constitution and Laws of Ukraine. (The Decision of the Constitutional Court of Ukraine No.15-рп/2000 of 14 December 2000)

In his counter opinion, judge Vasyl Lemak noted that a judge should be careful when making decisions based on his own perceptions of politics, which are the subject of controversy in society and require expert knowledge. During the open part of the meeting, one week prior to the adoption of the Decision it was announced that the Court had received scientific and expert positions and explanations from the National Agency for the Prevention of Corruption, the Chairman of the Verkhovna Rada of Ukraine, the Prosecutor General’s Office, ARMA, the NACP, the HACC, the legal Department of the Secretariat of the Constitutional Court of Ukraine, the Law Institute of Taras Shevchenko Kyiv National University, Yaroslav Mudryi National Law University, the Interdisciplinary Research and Education Center for Combating Corruption of the National University of Kyiv-Mohyla Academy, public organization “Transparency International Ukraine,” public organization “Anti-Corruption Action Center,” Professor Havronyuk M.I., S.J.D.

Some of them were published and substantiated in favor of recognizing the challenged provisions as constitutional. The court did not consider it necessary to refute such arguments. The full range of negative consequences of such arbitrariness of the Court and the adopted Decision has yet to be comprehended.

As a result, the two properties of any decision are its legality and legitimacy.

Legality refers to the adoption of a decision based on formal legal requirements (compliance with the form, procedure, legal content). Legality ensures the legal force of the decision, its compliance with existing legislation and established procedures.

Legitimacy means the support and perception of such a decision by society, that is, the people of Ukraine, which is the bearer of sovereignty and the only source of power in Ukraine. Unfortunately, the above-mentioned decision of the CCU meets neither the requirement of legality, nor the requirement of legitimacy, given that one of the main demands of society is the fight against corruption, while the decision of the CCU virtually invalidated the response to this request.

Given the above, we see it possible to note that the decision of the CCU No.13-р/2020 directly violates the Constitution and Laws of Ukraine, threatens the balance of the distribution of state power and is illegitimate in terms of public perception.

With this decision, the CCU exceeded its powers, took over the functions of the legislative branch of power, declaring unconstitutional criminal liability for false declaration, violated the legislative norms on conflict of interest, and the NACP lost its supervisory powers of the verification of declarations over all state bodies, compliance with anti-corruption legislation, settlement of conflicts of interest and protection of whistleblowers, the monitoring of lifestyle, drafting of instructions and protocols on violations, etc.

 

What can be done after such a Decision?

 

Resolving issues related to the activities of the CCU:

1. Clarify the Law “On the Constitutional Court” on the issue of the majority — the number of judges for decision-making, etc.
2. Amend the Law “On the Constitutional Court” on the procedure for conducting a competition, provide for transparent mechanisms for its implementation.
3. Select a new transparent competition of CCU judges for vacant positions in accordance with the new procedure.
4. Initiate a judicial reform, in particular restart the HCJ and the HQCJ.

 

Resolving issues of the restoration of eliminated anti-corruption reform:

1. Consider changing the legal position of the Court in accordance with Article 92 of the Law “On the Constitutional Court” in order to improve the protection of constitutional rights and freedoms, with due regard for Ukraine’s international obligations.
2. Develop and adopt laws and amendments to the Constitution that will restore the legislative requirements repealed by the CCU’s decision and neutralize as much as possible the risk of re-declaring them as unconstitutional. They should include “lessons learned” based on the implementation of anti-corruption legislation in 2014-2020 and enhanced inspection and control mechanisms for judges.
3. It should be assumed that criminal liability for false declaration would be impossible to restore with the help of law, and in such case provide for more severe sanctions in administrative liability, up to the confiscation of undeclared assets, and extend the limits of its incurrence.

 

The legal analysis was prepared by Oleksandr Kalitenko and Serhii Kurinnyi, legal advisers of Transparency International Ukraine