On May 13, 2021, the Administrative Court of Cassation as part of the Supreme Court made a ruling regarding the cassation appeal in the framework of the case on the claim of a prosecutor to the Prosecutor General’s Office. Last year, this prosecutor did not pass the performance review, so through the court he demanded that the decision of the personnel commission on unsuccessful review be recognized as illegal and canceled. See the first part of the legal analysis on this matter at the link.
What happened?
The court concluded that “…the conclusions of the Personnel Commission on the plaintiff’s non-compliance with the requirements of professional ethics regarding the use of third-party property, the origin of funds lent to other persons, and the circumstances under which these funds were borrowed are unjustified, subjective, and made solely based on assumptions and in the absence of any appropriate evidence which, individually or in aggregate, would indicate that the plaintiff violated the requirements of legislation in the field of corruption prevention, in particular regarding the compliance of expenses and property of the prosecutor and his family members with the declared income, declaring false information, the presence of signs of illegal enrichment or the unjustified nature of acquired assets.”
As one of the grounds for such a decision, the Court cites the absent, in the opinion of the Court, justification of its decision by the Personnel Commission. As indicated in the court conclusion, the Commission “must properly justify the relevant conclusions, and with reference to specific evidence and circumstances, explain what exactly the violation committed by the plaintiff is and why, in the opinion of the Commission, such a violation indicates that the plaintiff does not comply with professional ethics.” That is, according to the court, the Commission did not evaluate the explanations that the prosecutor provided to it as confirmation of his integrity. In addition, according to the resolution, if the Commission had considered that the explanations provided by the plaintiff and their documentary confirmation did not refute the facts of violation of the professional ethics requirements, it should have recorded them in the minutes of the commission meeting and in the contested decision.
However, perhaps the most significant remark of the court is contained in paragraph 90. According to it, “the powers to control and verify the declarations of persons authorized to perform the functions of the state or local self-government, regardless of the position held by such a person, are attributed to exclusive competence of the NACP and can be exercised in accordance with the procedure established by the Law of Ukraine “On Prevention of Corruption.”
The task of the Personnel Commission is not to establish the inconsistencies between the declared information and reality but to provide an evaluation of the prosecutor's integrity in connection with the information that triggers reasonable doubts about the prosecutor's compliance with the relevant rules.
Why is the Supreme Court’s decision special?
Unfortunately, the Court actually equated two non-reciprocal procedures — a full verification of the NACP declaration and an evaluation of the prosecutor’s integrity by the Personnel Commission which is one of the subjects of prosecutor’s performance review. These procedures have a different legal nature, purpose, and consequences of its unsuccessful passing.
In the case of performance review, the consequence is the dismissal of the prosecutor from office. If the NACP during the verification of the declaration determines the reflection of false information or finds other signs, for example, of illegal enrichment or the unjustified nature of assets, there will be no automatic dismissal based on the results of such a full check. However, such consequences can extend up to the relevant articles in the Administrative Code and the Criminal Code regarding intentional false declaration, etc. After all, the legislation envisages a separate procedure for bringing guilty persons to justice which is in no way related to passing performance review and the decision of the Personnel Commission.
Thus, the task of the Personnel Commission is not to establish the inconsistencies between the declared information and reality but to provide an evaluation of the prosecutor’s integrity in connection with the information that triggers reasonable doubts about the prosecutor’s compliance with the relevant rules. It is for this purpose that the Personnel Commission can receive, including from the NACP, any information about the prosecutor, necessary for review purposes, including that about the compliance of expenses and property of the prosecutor and his family members, as well as close persons with the declared income.
However, a full verification of the declaration by the NACP cannot be considered as mandatory for performance review and evaluation of such integrity. There is no such requirement in the legislation, and even in practice, the NACP has a limited resource regarding the maximum possible number of verified declarations. In general, such a requirement cannot be established, since it paralyzes the work of the NACP on financial control and will force this body to verify, first of all, the declarations of persons undergoing performance review. And this will contradict the concept of anti-corruption legislation.
It is a pity that the Court agreed with the conclusions of the courts of previous instances which, in particular, concluded that the Personnel Commission actually, at its discretion, appropriated the powers of another state body in violation of Article 19, Part 2 of the Constitution of Ukraine (the powers of the NACP to verify declarations). From such a general wording on the exclusive competence of the NACP, stated in paragraph 90, which is generally not included in the anti-corruption legislation, it follows that personnel commissions allegedly went beyond their powers during performance review without the relevant conclusions of the NACP regarding the results of the full verification of a declaration.
The Supreme Court’s mentioning the NACP and the procedure for full verification of the declaration in the paragraphs 87-90 is generally unnecessary and cannot be applied in these circumstances. It also jeopardizes the results of other performance reviews if its objects were not subject to comments/verifications by the NACP.
However, the Court neither referred to its resolution of October 2, 2018, concerning the relevant powers of the QDCP. This means that the new decision that should be applied only strictly within the limits of similar circumstances in future disputed legal relations, so far, only questions the results of performance reviews.
A full verification of the declaration by the NACP cannot be considered as mandatory for performance review and evaluation of such integrity.
