On Tuesday, 27 October 2020, the Constitutional Court of Ukraine (hereinafter, the Court) issued ruling No. 13-r (in Ukrainian) on the conformity of certain provisions of the Law “On the Prevention of Corruption” and the Criminal Code of Ukraine with the Constitution.
The document, which is mostly about the reasoning of the Court about the independence of the judicial branch within the separation of powers, states that NAPC as an executive body cannot fulfill its functions of control over judges, including those of the Constitutional court. These unconstitutional functions of NAPC, as ruled by the Court, regard, in particular, detection and management of conflict-of-interest situations, maintenance of a register and public disclosure of declarations, control over their timely submissions, preliminary and comprehensive review of declarations, and monitoring of the way of life of declarants. It is noteworthy that the Court, highlighting exclusively the independence of the judicial branch of power, recognises that the aforementioned functions of NAPC are unconstitutional as related to all categories of officials.
Furthermore, the Court ruled that criminal liability in the form of imprisonment for knowingly filing false information or intentionally failing to submit declarations (article 366.1 of the Criminal Code, in Ukrainian) is excessive. The Court underlines that such actions cannot considerably damage a natural or legal person, society or the State to the extent sufficient to recognise that they are socially dangerous and therefore criminal liability cannot be considered as a proportional punishment in this case.
After the ruling, NAPC was forced to block access to the electronic register (in Ukrainian) of asset declarations of public officials. However, it was subsequently unblocked as early as 30 October following the respective decision of the Cabinet of Ministers instructed to do so by the President in the course of a closed meeting of the National Security and Defence Council.
If it was not particularly difficult to restore access to the register, the ban on prosecuting for filing false information in asset declarations may undermine the results of the work carried out by NAPC in the recent years. At the moment the agency has over 100 cases on the docket related also to high-ranking officials accused of having filed inaccurate information. The ruling that found the provisions of article 366.1 of the Criminal Code unconstitutional actually deprives NAPC of the possibility to hold those persons liable.
The EU is also concerned about the ruling of the Court: according to certain sources (in Ukrainian) its implementation may put an end to visa-free travels of the Ukrainians. Moreover, an actual revocation of some anti-corruption reforms that have been adopted in the recent years in Ukraine may hamper the IMF lending (it should be recalled that the IMF loans to the country were conditional upon the introduction of different anti-corruption measures, including the electronic register of asset declarations (in Russian) and criminalization of illicit enrichment (in Russian)).
In this context, Volodymyr Zelensky, the President of Ukraine, has already submitted a bill (in Ukrainian) on the restoration of public trust in the proceedings of the Constitutional Court to the Verkhovna Rada, the parliament of Ukraine. The bill proposes to invalidate the ruling of the Court, meaning that it does not produce any legal effects, as it was made by judges in a real conflict-of-interest situation.
It is highlighted that when adopting the ruling some judges of the Court could be guided by their personal interests, as NAPC had previously detected their failure to provide accurate information in asset declarations. For example, 615,000 UAH (roughly 22,000 USD) “disappeared” from the asset declaration of judge Irina Zavgorodnyaya in 2018 and other 754,000 UAH (approximately 27,000 USD) in 2019; other judge, Sergey Golovaty, did not disclose in his 2019 declaration the assets totaling 3,6 million UAH (around 126,500 USD). Besides that, Alexander Tupitsky, the President of the Court, is accused of having acquired a land property in Crimea (in Russian), which is considered by Ukraine as annexed territory, and having got the property title through a contract of sale in accordance with the Russian legislation.
As a result, many people saw the ruling of the Court as politically motivated and based on the aspiration of high-ranking officials to discredit NAPC thereby protecting themselves from liability. However, this is not a brand new situation: the establishment of a centralized national anti-corruption authority may pose a lot of challenges also related to ensuring its autonomy and protection from undue influence of the ruling elite, as we have already pointed out several times (see, for instance, here and here).
