Editor’s note: The Constitutional Court of Ukraine abolished on Feb. 26 criminal liability for illegal enrichment, deciding that is unconstitutional and violates the presumption of innocence. It was perceived as a major rollback in Ukraine’s struggle to free itself of top-level corruption, and brought a lot of criticism upon the Constitutional Court’s judges. The following is an op-ed submitted to the Kyiv Post by Stanislav Shevchuk, the head of the Constitutional Court, where he defends the court’s ruling. As it was being edited for publication, judges of the Constitutional Court voted to dismiss Shevchuk as head of the court on May 14.
The February ruling of the Constitutional Court of Ukraine striking out the illicit enrichment provision in the Criminal Code of Ukraine provoked heated public debates.
Feedback from the expert community is mixed. Many experts are of the opinion that the Constitutional Court provided expected and fully justified result in the illicit enrichment proceedings acknowledging that the drawbacks of the impugned proviso wording made it irreparably unconstitutional.
No fewer experts are of the opposite opinion – that the Court should have saved the proviso, striking out only those parts that are irreparable. The general public debate, however, goes in another direction, accusing the Constitutional Court in curtailing anti-corruption reform whereas the illicit enrichment crime has been perceived as the cornerstone of the reform.
As the President of the Constitutional Court I feel compelled to express my opinion on the ruling (as I did before). As after the delivery of the ruling there are no ethical restrictions to comment I would like to encapsulate why the majority of the Court adopted the ruling.
Ukraine undertook to criminalize illicit enrichment under the UN Convention Against Corruption. The first provision to punish illicit enrichment appeared in the Criminal Code in 2011. For the period of 2011-2015 the court decisions registry yields approximately less than 100 verdicts based on that provision.
In 2015, with the establishment of the National Anti-Corruption Agency of Ukraine and electronic declarations for public officials, the parliament voted for the new version of the illicit enrichment law. The feverish haste with which the parliament designed and adopted the new version inevitably entailed errors and misconceptions.
First, the law was worded in a way that falls short of illicit enrichment – it criminalized failure to “legalize” illicit assets but not their possession or acquisition. So if an official doesn’t possess the property officially (for example, while property formally belongs to the official’s grandmother or to a legal entity), he or she is immune to this law. The same goes for when he or she has all legally required documents to certify the legality of possession.
I assume that such construction of the proviso was intentional to make it inoperable. So in 2015, the parliament criminalized only the failure to have papers in order. It’s not accidental that during the four years when the provision has been in force no court verdict on illicit enrichment was pronounced in any court of Ukraine.
At the very time when this law was debated in parliament, the Legal Department of the Verkhovna Rada flagged clear risks of the law’s unconstitutionality.
International standards, such as Article 20 of the UN Convention Against Corruption, require when criminalizing illicit enrichment to ensure compliance with the national constitution and principles of the national legal system. Upon careful study of the case file submitted to the Constitutional Court, I came to the conclusion that the parliament in 2015 failed to meet this requirement.
Just to dispel some speculations, the Constitutional Court declared the wording of the illicit enrichment in Criminal Code unconstitutional. The crime as such has not been the subject-matter of the constitutional review. As proceeds from the ruling, the parliament can adopt a new wording of the provision provided it complies with the principles espoused by the Constitutional Court.
The Constitutional Court established three key requirement for the illicit enrichment legislation that is in compliance with the Constitution: 1. The provision shall not impose the burden of proof on accused, he or she shall not be required to prove his or her innocence; 2. The prosecution shall not demand the defendant to prove legality of acquiring his or her assets; 3. The mere fact of inability to produce legal deeds proving legality of assets acquisition shall not be the only actus reus of the crime.
In my concurring opinion I argue that the illicit enrichment provision is also unconstitutional because it fails to comply with the implicit anti-corruption principles of the Constitution, such as “crime does not pay.” The impugned provision effectively paved the way for impunity.
To make the new provision compliant with the Constitution, I espoused in addition three requirements that should ensure the “crime does not pay” principle and bring justice to all who are or was engaged in corruption. First, the new wording of illicit enrichment legislation should include rights in rem and possessory entitlements (not only possession as such). Second, the crime should be worded as continuous crime – thus it should encompass corruption occurred prior to this legislation’s enactment. This would also lift the risk of unconstitutional retroactivity. Third, the wording should ensure that the crime is intentional as required by Article 20 of the UN Convention Against Corruption.
I believe that the provision declared unconstitutional had such an incurable deficiencies that the Court had no other option but to repeal it in toto. This, we believed, should brake the vicious cycle of impunity for corruption. Striking the provision out of the legal system cleared the field for the new effective and constitution-abiding wording of the illicit enrichment law.
We remain committed to ensure the full force of the Constitution’s anti-corruption principle. The anti-corruption policy should be based on solid legal ground. As the Bible says, a house on sand will fall with a great crash, while a house on the rock will not fall.
