The Constitutional Court has ruled the right of the National Anti-Corruption Bureau to dispute questionable agreements unconstitutional. From now on, this provision is invalid.

According to the Law on the NABU, the Bureau could file a civil lawsuit to have agreements of individuals investigated under corruption-related provisions declared invalid. It was an effective mechanism of countering corruption. Going to the court, the NABU could stop questionable agreements before the ruling in criminal proceedings was issued.

During the four years of the Anti-Corruption Bureau’s functioning, courts have terminated 96 questionable agreements with the total value of UAH 5.3 billion.

It is doubtful that there is good reason for such a decision. We believe that the court overstepped its authority. The claimant asked the court to attest that this provision violates the principle of legal certainty. Instead of expressing its stance on this question, the Constitutional Court said that the Parliament should not have delegated this right to the NABU instead of the prosecution.

Our experts believe that this right was never contradictory to the Constitution, because representing governmental interests in court is not under the jurisdiction of the prosecution exclusively.

We can lament the decision, but the provision is effective no more. The decision of the Constitutional Court is final and cannot be disputed. It came into effect immediately after it was issued. So we decided to consider the situation calmly.

It is getting more and more difficult to fight corruption. But we believe that not everything is lost. The SAPO can dispute questionable corrupt agreements. Yes, it will have to prove the legitimacy of such an action in court. 

That is why the NABU and the SAPO have to cooperate actively: the materials should be transferred from the Bureau to the Prosecutor’s Office, and the latter should go to court to represent the state.

We urge the management of the NABU and the SAPO to cooperate with each other at all stages. Their joint coordinated action is the one thing that can still save this mechanism. The President has also “given” them a few months to find common ground.

At the same time, TI Ukraine will be looking for ways to give this precious right back to the Bureau. We need both the NABU and the SAPO to be able to dispute corrupt agreements that lead to billions lost from the national budget.

Our experts believe that this right was never contradictory to the Constitution, because representing governmental interests in court is not under the jurisdiction of the prosecution exclusively.

What happened:

On 5 June 2019, the Second Senate of the Constitutional Court of Ukraine made the decision in the case based on the application filed by Zaporizhia Ferro-Alloy Factory on consistency of the Law of Ukraine “On the National Anti-Corruption Bureau” No. 1698-VII of 14 October 2014, Article 17, part 1, clause 13, with the Constitution of Ukraine. According to clause 13, the National Bureau and its staff members can file lawsuits to have agreements terminated according to the legal procedure.

In their turn, the authors of the constitutional motion claim that this provision violates the principle of legal certainty and enables the Bureau as a pre-trial investigation agency to demand the court to recognize agreements illegitimate before the verdict on the criminal case is issued. The company believes this provision to contradict the Constitution of Ukraine, namely Article 62, part 1, and Article 124, part 2.

The authors of the constitutional motion claim that this provision violates the principle of legal certainty and enables the Bureau as a pre-trial investigation agency to demand the court to recognize agreements illegitimate before the verdict on the criminal case is issued.

The Stance of the Constitutional Court:

Unfortunately, the Constitutional Court did not provide its stance on the question expressed in the constitutional motion filed by the claimant. The Court believes that the provision of the Law of Ukraine “On the National Anti-Corruption Bureau” on the right to file civil lawsuits on agreement termination grants the Bureau powers that fall under the purview of the prosecution according to the Constitution of Ukraine, Article 131(1). Taking into account the fact that there is a specialized prosecution agency, namely, the SAPO, the Court believes that it should be the SAPO that has the authority to file such lawsuits, while currently the NABU technically shares these functions of public interest representation in the court.

At the same time, when the Parliament of Ukraine delegated the constitutional powers of the prosecution to the NABU by adopting the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine,” it overstepped its authority established by the Constitution of Ukraine.

Taking into account the above, the Constitutional Court of Ukraine ruled the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine,” Article 17, part 1, clause 13 unconstitutional.

The Constitution of Ukraine has the highest legal power, and all the other laws should be based on the Constitution and compliant with it. The Constitution of Ukraine, Article 131(1), part 3 says that “the prosecution defends public interests in court only in cases and according to the procedure established by the law.” And since the motion was about the consistency of a specific provision with the Constitution of Ukraine, it should be noted that Article 17, part 1, clause 13 of the Law of Ukraine “On the National Anti-Corruption Bureau” does not contradict the Constitution, since it does not say that it is only the prosecution that can represent public interests in court. It is not up to the Constitutional Court to assess whether other legislative acts contradict each other or not.

According to the requirements of the Law of Ukraine “On the National Anti-Corruption Bureau,” Article 1, the Bureau is a national law enforcement agency tasked with prevention, identification, termination, investigation and solution of corruption-related violations within its jurisdiction, as well as prevention of potential corruption-related violations. Article 16 of the same Law sets forth a number of obligations of this agency that is has in order to fulfill its purpose.

To meet its legislative obligations and fulfill the objectives set forth in Article 1 of the specialized Law, the National Bureau has to take measures when it identifies potential corruption-related violations committed by individuals. Filing a civil lawsuit to have agreements terminated is one of the most effective ways to stop corruption in its tracks. Such lawsuits can only be filed when there are legitimate grounds and only under the procedure prescribed by the law. This is fully compliant with the principle of legal certainty as an element of rule of law, as established by Article 8 of the Constitution of Ukraine.

Since the day the Constitutional Court made its decision, that is since 5 June 2019, Article 17, part 1, clause 17 of the Law of Ukraine “On the National Anti-Corruption Bureau” becomes invalid. Now, it is up to SAPO prosecutors to file lawsuits to have agreements terminated. Taking into account the procedure for such lawsuits set forth in Article 23 of the Law of Ukraine “On Prosecution,” the number of cases investigated by the NABU and the number of SAPO staff members, it is hard to be optimistic about the effectiveness of the new system.

The analysis has been developed by TI Ukraine’s Head of Legal Kateryna Ryzhenko.

The Court believes that the provision of the Law of Ukraine “On the National Anti-Corruption Bureau” on the right to file civil lawsuits on agreement termination grants the Bureau powers that fall under the purview of the prosecution according to the Constitution of Ukraine.