On August 4, MPs from the Opposition Platform for Life political party produced another constitutional petition, which was signed by a total of 47 MPs. The submission concerns the compliance of certain provisions of the Law of Ukraine “On Corruption Prevention,” the Criminal Code of Ukraine, the Civil Procedural Code of Ukraine and other relevant laws of Ukraine affecting the rights and freedoms of citizens with the Constitution of Ukraine.
In fact, this is another attempt to question the obligation of civil servants to file declarations and a number of other related issues.
The CCU opened the proceedings and the open part of the plenary session took place yesterday. Unfortunately, we have not heard the positions of the parties yet, because the meeting was adjourned. However, the results of declaring the provisions unconstitutional, as requested by MPs, could lead to catastrophic consequences.
Most importantly, this could be a significant blow to the system of corruption prevention and the generally successful experience with asset declarations. If officials are not obliged to declare their assets, this will lead to some changes in bringing them to criminal liability, for instance, for declaring false information or illicit enrichment.
We can enumerate the consequences for a while, but this could be a significant setback to the achievements of anti-corruption reform in Ukraine.
It should be noted that this is far from the first attempt to get certain aspects of anti-corruption bodies’ activity ruled unconstitutional. This is partly a consequence of the effective work of anti-corruption institutions.
Declaration and more
Declaring the wealth of state and local officials is nothing new in the Ukrainian legal system. The e-declaration system has been working on the official website of the National Agency on Corruption Prevention since 2016. The data of declarations, excluding personal data, are published for review under the law. Public declaration of wealth is an effective anti-corruption tool. This is proven by international practice.
As of the day of adoption of the Law of Ukraine “On Corruption Prevention,” corruption was on the list of key real or potential threats to Ukraine’s national security and social stability. This, among other things, is established in Article 7 of the Law of Ukraine “On Fundamentals of National Security of Ukraine.”
Therefore, any possible restrictions on the rights and freedoms that may be caused by the declaration system are caused in the interests of national security, as provided by the Constitution of Ukraine.
The provisions that the deputies are trying to challenge are based on the principles of anti-corruption regulation contained in acts of international law — the 1999 Civil Law Convention on Corruption, the 1999 Criminal Law Convention on Corruption, and the UN Convention of 2003, all ratified by Ukraine.
Imposing the obligation to declare assets in accordance with the Law of Ukraine “On Corruption Prevention” on a person authorized to perform the functions of national or local self-government cannot be viewed as interference with the private (personal) and family life of this person.
Regarding open round-the-clock access to the Unified State Register of Declarations on the NACP website:
The ECtHR recognizes the right of the public to receive socially important information and the possibility of violating Article 10 of the Convention in relation to access to information. That includes data requests of journalists or CSOs which perform a watchdog function and collect publicly important information to subsequently inform the public.
It should also be noted that the content of the right to private and family life is not identical in persons authorized to perform the functions of state or local self-government, and in persons who do not perform such functions.
The public also has the right to be informed about aspects of the private life of public figures, as stated in the decision of the European Court of Human Rights (Karhuvaara and Iltalehti v. Finland). The limits for interference in public persons’ private life, including through access to information about them, are broader compared to private individuals without a public status.
Public figures, especially professional politicians, voluntarily and consciously “open” their every word and every action for meticulous analysis by journalists and society at large (Porubova v. Russia).
However, public figures are not completely deprived of the right to privacy. In this context, the Court distinguishes reports of facts, even controversial ones, which may contribute to the public debate. If the information concerns a person’s purely private life and cannot affect the public interest, interference with the right to privacy will not be deemed necessary and permissible (Von Hannover v. Germany).
The exchange of information containing confidential information about a person, for example, between authorized entities, must take place in the manner prescribed by law (Article 19 of the Constitution of Ukraine), including the provisions of other legislative acts.
Regarding the possibility of disclosing medical secrecy in the process of entering data into the declaration and their subsequent publication, we inform that the declarant does not have to indicate personal data while describing a transaction. Third parties will not be able to establish information about the state of health, illness, diagnosis, the fact of seeking medical care, treatment methods, personal and family life (such fields are not even in the form of a declaration). Thus, no information on identifiable medical services can end up in the public domain.
At the same time, if the NACP identifies unexplained wealth based on verification of asset declarations, it may request that the public official provide written explanations — however, in this situation, if the NACP official discloses medical information, he or she will be potentially criminally liable under Article 145 of the Criminal Code of Ukraine “Innegal Disclosure of Medical Secrecy.”
Thus, this approach, based on the provisions of the current legislation followed by the NACP, renders violation of constitutional rights impossible.
If a person needs additional information, they can contact the NACP, which provides the necessary clarifications. Thus, we do not see that this situation may violate the principle of legal certainty.
Lifestyle Monitoring of Declaration Subjects
The arguments of the applicants are based on assumptions. Based on the provisions of Article 51 of the Law of Ukraine “On Corruption Prevention,” lifestyle monitoring does not have any characteristics of investigative activity.
The notion of “selective monitoring” used by the legislator does not give grounds to claim that the actions of the NACP violate the constitutional principle of equality. Article 51 of the Law of Ukraine “On Corruption Prevention” does not contain any specific indicators or criteria of “selectiveness.” Based on its powers, the NACP performs law enforcement activities and is a central body of executive power with a special status.
This approach enables implementation of Recommendation I of GRECO, provided based on the first and second evaluation rounds, as well as relevant recommendations of the European Commission Experts as part of the Action Plan on Visa Liberalization Regime for Ukraine. It is a tool for implementation of UN Convention against Corruption, Article 6 into the national legislation for creation and operation of an anti-corruption policy agency.
Performing such lifestyle monitoring of declaration subjects is a form of public oversight over the integrity of persons authorized to perform certain functions of state or local self-government.
Regarding the unconstitutionality of Article 366-1 of the Criminal Code of Ukraine
The law takes into account the fact that family members of the declaring subject cannot be obliged to provide information about their transactions, expenses, etc. At the same time, the Law of Ukraine “On Corruption Prevention” obliges the declaration subject to obtain this information.
If a family member refuses to provide the required wealth information, the declarant may file a declaration without such information. This does not lead to criminal liability of the filer. The NACP has provided its official position on this issue: if a family member has refused to provide this information, but the declaration subject has this information or can obtain it from official sources, the declaration subject must reflect all known information in the declaration (item 34 of the Clarification).
At the same time, the limits of criminal liability for indicating inaccurate data in the declaration are set: if such information differs from the reliable by at least 250 subsistence minimums for able-bodied persons. That is, for the onset of criminal liability, the declarant must hide from the declaration the equivalent of the subsistence minimum of 250 able-bodied citizens of Ukraine. We believe that such actions are socially dangerous and require that criminalization be preserved.
Moreover, disciplinary, administrative, and criminal liability may be applied for declaring knowingly inaccurate information and intentional failure to submit a declaration. Declaring the wealth of officials is an effective tool for tracking the property status of persons authorized to perform the functions of the state and local self-government in order to prevent their illicit enrichment and the commission of official crimes.
Declaring knowingly inaccurate information and intentionally failing to declare assets violates the requirements of the Law of Ukraine “On Corruption Prevention,” thus jeopardizing the effective functioning of the financial control system, which makes it impossible to effectively fight corruption in Ukraine.
Regarding the unconstitutionality of Article 368-5 of the Criminal Code of Ukraine
The authors of the constitutional petition also note the following: “The use in the disposition of part one of Article 368-5 of the Criminal Code of Ukraine of the following legal phrasing: ‘exceeds their official income’ (…) creates legal uncertainty, since it is impossible to define unequivocally for what period the income of a respective individual must be calculated to establish illicit enrichment in their actions.”
This criminal violation is formal under Article 368-5 of the Criminal Code of Ukraine. This means that for the violation to occur, it is not necessary that it should entail socially dangerous consequences.
The objective aspect of this criminal violation is the sheer fact of acquisition of assets by a public official whose value exceeds the official’s legal income for over 6,500 pre-tax minimum incomes. In that case, the criminal violation occurs regardless of the consequences.
Therefore, in classifying such a criminal offense, the legislator provides that it may be prolonged in time (without setting a clear time frame), but must be covered by a single criminal intent (for example, illicit enrichment through several separate illegal actions, stretched in time), but it can also occur in one moment, when one action already forms the finished structure of a criminal offense.
Regarding the definition of “legal income”
The authors of the constitutional petition indicate the following: “Paragraph 4 of the Note to Article 368-5 of the Criminal Code of Ukraine defines the legal income of a person authorized to perform the functions of state or local self-government, and means income lawfully obtained by the individual from legal sources, defined, inter alia, by clauses 7 and 8 of part 1, Article 46 of the Law of Ukraine “On Corruption Prevention.”
At the same time, this provision does not define and does not provide for unequivocal definition of what sources are understood as legal sources, while reference to Article 46, part 1, clauses 7 and 8 of the Law of Ukraine “On Corruption Prevention” narrows such sources and maintains the ambiguity of the notion of “legal income.” The period of acquisition of such income may vary from a month to the entire life.
Indeed, the above paragraph 4 of the note to Art. 368-5 of the Criminal Code of Ukraine is by its legal nature a blanket norm, i.e. it does not provide a direct definition of legal income and refers to clauses 7, 8 of Part 1 of Art. 46 of the Law of Ukraine, which stipulates that legal income is that received by the declaring subject or members of their family, including income in the form of wages (cash security), received both at the main place of work and part-time, fees, dividends, interest, royalties, insurance payments, charitable assistance, pension, income from the alienation of securities and corporate rights, gifts and other income. The Law of Ukraine “On Corruption Prevention,” Article 46, part 1, clauses 7, 8 clearly define the list of legal income, the means and subjects of their receipt.
If the income of a person authorized to perform the functions of state or local self-government exceeds the limit specified in the Criminal Code of Ukraine, but is legal (i.e. those obtained from legitimate sources), the actions of the above person do not constitute a criminal offense.
If a person’s income exceeds the specified threshold and the pre-trial investigation authorities prove that such income is obtained from illegal sources and the person has an influence on them, i.e. the ability to dispose of them (even if they belong to the person’s relatives), such a person may be prosecuted.
In this case, the burden of proof rests with the pre-trial investigation agencies, which must record such facts, collect evidence and prove guilt in a criminal proceeding in court.
Regarding the presumption of innocence and the burden of proof
The authors of the constitutional petition stated that: “Imposing on a person authorized to perform the functions of the state or local self-government the obligation to prove non-involvement in the assets of another person contradicts the constitutional provisions of parts one and two of Article 62 of the Constitution of Ukraine, under which an individual is considered innocent of the commission of a crime and may not be subjected to criminal punishment until their guilt is proved in a lawful manner and established by a court conviction; no one is obliged to prove their innocence in committing a crime.”
This statement contradicts the current legislation. Article 62 of the Constitution of Ukraine does stipulate that an individual is considered innocent of the commission of a crime and may not be subjected to criminal punishment until their guilt is proved in a lawful manner and established by a court conviction; no one is obliged to prove their innocence in committing a crime.” No one is required to prove their innocence.
Article 8 of the Constitution of Ukraine stipulates that the norms of the Constitution of Ukraine are norms of direct action. Article 2, parts 1, 2 of the Criminal Code of Ukraine stipulates that criminal liability occurs when an individual commits a socially dangerous act which constitutes a criminal offense under the Code.
An individual is considered innocent of the commission of a criminal offense and may not be subjected to criminal punishment until their guilt is proved in a lawful manner and established by a court conviction.
These provisions are all-encompassing, that is, they apply to Article 368-5 of the Criminal Code of Ukraine, which in no ways shifts the burden of proof to the suspect/accused. Moreover, Article of the Criminal Procedural Code of Ukraine clearly states that an individual is considered innocent of the commission of a criminal offense and may not be subjected to criminal punishment until their guilt is proved pursuant to the Code and established by a court decision. The authors of the constitutional petition say that “the disposition of Article 368-5 of the Criminal Code of Ukraine allows to apply the provisions of Article 368-5 of the Criminal Code of Ukraine to actions committed before the Article came into effect.
A person authorized to perform functions of state or local self-government who acquired assets before criminal liability was introduced under Article 368-5 of the Criminal Code of Ukraine could not know that in the future, they would have to explain the difference between them and the income of this individual and thus could not predict criminal liability for such a difference.”
This statement is not true given the following. Article 58 of the Constitution of Ukraine stipulates that laws and other regulatory acts do not have retroactive effect, except in cases when they mitigate or cancel a person’s liability. The decision of the Constitutional Court of Ukraine in case № 1-7 / 999 of February 1999 states that the provisions of part one of Article 58 of the Constitution of Ukraine on retroactive effect of laws and other regulatory legal acts in cases when they mitigate or cancel the liability of a person applies to individuals and does not apply to legal entities.
As stated above, the norms of the Constitution of Ukraine are norms of direct action and have supreme legal power. All laws of Ukraine must be adopted in accordance with the Constitution of Ukraine. In view of this, the Criminal Code of Ukraine regulates by an imperative norm the impossibility of applying criminal liability to a person for actions committed before the entry into force of Article 368-5 of the Criminal Code of Ukraine.
Regarding the automatic establishment of guilt
The authors of the constitutional petition claim that “Thus, if a person authorized to perform the functions of state or local self-government does not provide proof that assets or funds required for the purchase of assets were acquired through legal means, such an individual immediately becomes a perpetrator with negative legal consequences stipulated by section 12 of chapter III of Civil Procedural Code of Ukraine, or, if criminal offense is identified, such a person is brought to criminal liability.”
Under NACP Order No. 144/20 of 15 April 2020, clause 8, if the author of the declaration does not provide written clarifications and evidence or does not provide them fully within the indicated period (including if the evidence does not contest the conclusion on unexplained nature of assets), the authorized officer who conducted the verification has to compile a conclusion on the characteristics of unexplained assets in two copies within five business days.
After the conclusion is approved by the head of division, it is approved by the Head of the National Agency or the Deputy Head of the National Agency. The approved reasonable conclusion and accompanying materials are sent to the National Anti-Corruption Bureau and the Specialized Anti-Corruption Prosecutor’s Office, or, in cases established by the law, to the Prosecutor General’s Office.
The Head or the Deputy Head of the NACP raise the question with the SAPO or, in certain cases stipulated by the law, with the Prosecutor General’s Office, on filing a lawsuit with the court to recognize the assets as unexplained and recover them to the national budget.
In this case, it does not make sense to speak about automatic establishment of guilt, given the above standard only regulates the right of the PGO to file a lawsuit with the court. This does not constitute either establishment of guilt, or a fact of bringing the person to liability.
Thus, the constitutional petition in question is unfounded and inconsistent with the current legislation of Ukraine. The substantiation of the constitutional submission is based on manipulative allegations, which significantly distort the content of the regulatory substantiation of the document and cite the law selectively.
It should be noted that the legislative standards have been requested to rule unconstitutional form the fundamentals of the anti-corruption system, while corruption has been recognized a threat to the national security.
The disputed norms of the legislation, which are specified in the constitutional petition, generally and fully comply with the Constitution of Ukraine.