The “closedness” of the meeting calls into question the constitutionality and objectivity of the CCU’s decision in the case on liability for illicit enrichment — NACP Head

Today, on October 20, the Constitutional Court of Ukraine (CCU) continued the consideration of the case in which, inter alia, it proposed to declare liability for illicit enrichment, round-the-clock access to the Register of declarations and seizure of the unlawfully acquired assets unconstitutional. The National Agency on Corruption Prevention (NACP) is one of the participants in this case. The hearing took place in writing: the Court did not hear the participants in the case, but read their written explanations behind closed doors. “The closed consideration is a direct violation of Article 147 of the Constitution of Ukraine, which requires the activities of the CCU to be based on the principles of publicity, the rule of law, as well as the substantiation of adopted decisions. We are convinced that this case is of exceptional public importance, and therefore its consideration in writing is unacceptable. In addition, the four judges of the Constitutional Court hearing this case have a personal interest. Together, these two circumstances give reason to doubt the objectivity of the judges’ decision in this case”, said Oleksandr Novikov, NACP Head. As a counterweight to the Court’s actions, the NACP considers it necessary to openly state its position and arguments in favor of the constitutionality of the subject matter. What is the position of the NACP in the case? Given the complexity of the case, the NACP’s position submitted to the Court is a voluminous document of more than 120 pages. Bullet points of the position:

1. The financial control (declaring) introduced in Ukraine is based primarily on the provisions of Article 8 of the UN Convention against Corruption, complies with Ukraine’s international obligations, is consistent with the legal stance of the European Court of Human Rights on the declaration of public servants and is the best way to implement the recommendations provided to Ukraine by the Organization for Economic Cooperation and Development (OECD) and the Group of States against Corruption (GRECO).

That is why in the latest OECD Report, published in October 2020, the declaration introduced in Ukraine was described as an example of a high standard and best practice for the region.

2. As part of financial control (declaring), the NACP collects and processes the confidential information of officials on the basis of the law and in the interests of national security, economic well-being and human rights. Such intervention in the exercise of rights guaranteed by Article 32 of the Constitution of Ukraine is proportionate, commensurate with the goal pursued, does not violate the substantive content of the law and is the minimum possible for achieving the legitimate purpose of such intervention. The implementation of these measures does not violate the principle of medical confidentiality and does not disclose other information about the health status of persons, as stated in the constitutional petition.
3. The monitoring of the way of life of declarants is not an investigative (search) measure, does not involve excessive intervention in the exercise of the right to privacy and family life. In addition, the selectivity of such monitoring does not create preconditions for discrimination against persons or violation of guarantees of their equality.
4. The criminal liability for illicit enrichment (Article 368-5 of the Criminal Code of Ukraine), as well as for declaring of knowingly inaccurate information and intentional failure to submit a declaration (Article 366-1) fully complies with international standards (within Article 366-1 of the Criminal Code) and is a form of implementation of international legal obligations of Ukraine.
5. The introduction in Ukraine of recognizing the assets as unjustified and their recovery in favor of the state, the grounds and procedure for its application, as well as the legal consequences of such recognizing do not contradict Article 41 of the Constitution of Ukraine.

What will be the consequences if the court satisfies the MPs’ petition? The main possible consequences are as follows:

1. Officials that illicitly acquired the assets will not be held liable. If the CCU declares the Law on the Supreme Anti-Corruption Court unconstitutional, it will be impossible to bring the top corrupt officials to criminal responsibility for corruption.
2. The assets illicitly acquired by officials will not be returned to the state budget. 
3. The public will no longer be able to find out about the material well-being of officials, as the public access to information will be denied.
4. The NACP will still be able to verify the declarations, but this will not make any sense, as the most important information about the assets of public servants will no longer be in the declarations, and the NACP will lose access to the majority of Registers.

In general, Ukraine will lose the opportunity to have fully virtuous authorities. Thus, despite all the circumstances, we hope for an objective decision of the Constitutional Court in this case and in the case on the constitutionality of the Law of Ukraine on the Supreme Anti-Corruption Court.