Ukrainian and foreign legal experts have challenged the Constitutional Court’s claim that the illicit enrichment law is unconstitutional.
Concerns are now mounting that the legal reasoning of the court’s Feb. 26 decision on illicit enrichment is flawed, and that the motivations behind it were political, not legal.
The World Bank and the G7 on March 4 urged Ukrainian authorities to reinstate the law imposing criminal liability for illicit enrichment, calling its cancellation “a serious setback in the fight against corruption in Ukraine.”
But reinstating the law might face major obstacles.
First, an illicit enrichment bill submitted by President Petro Poroshenko to replace the current one has been criticized as ineffective and flawed.
Second, even if a new law on illicit enrichment is passed, suspects in illicit enrichment cases charged in recent years will not be convicted because the law will have no retroactive force.
Vitaly Tytych, the ex-coordinator of the Public Integrity Council, a judiciary watchdog, proposed another solution: passing an additional ruling of the Constitutional Court that would declare a previous version of the illicit enrichment law as valid. In this case, the courts will be able to convict current suspects in such cases.
The Constitutional Court ruled on Feb. 26 that the illicit enrichment law violated the rule of law, the legal certainty principle, and the presumption of innocence, as well as wrongly shifting the burden of proof to defendants instead of state prosecutors. Following the cancelation of the law, the National Anti-Corruption Bureau of Ukraine, or NABU, said it would have to close 65 criminal probes for illegal enrichment and four more cases that have already been filed in court.
The NABU said on March 6 it had already closed the illicit enrichment case against Odesa Mayor Gennady Trukhanov due to the Constitutional Court’s decision.
The cancellation of the law may also lead to problems with continued lending from the West, and with Ukraine’s visa-free regime with Europe, since approving the illicit enrichment law was a requirement for both.
Daria Kaleniuk, the executive director of the Anti-Corruption Action Center, has called for the replacement of the current discredited composition of the Constitutional Court due to its controversial decision.
Legal reasoning
Serhiy Holovaty, a member of the Constitutional Court, also argued in his dissenting opinion that the illicit enrichment law does not violate the presumption of innocence because the burden of proof lies on prosecutors, not the defendant. He also said the law does not go against the principles of the rule of law and legal certainty.
Another Constitutional Court justice, Viktor Kolisnyk, also said in his dissenting opinion that the law does not violate the presumption of innocence and the rule of law. He said that the Constitutional Court’s legal reasoning is based on the wrong assumption that the prosecutors would be unprofessional, and violate the presumption of innocence.
The Center of Policy and Legal Reform, Ukraine’s leading legal think tank, said in its opinion that “even despite some drawbacks in the design of this article, there were no grounds to declare it unconstitutional.”
“Article 368–2 of the Criminal Code in its wording, which came into force in April 2015, has very similar content to Article 20 of the UN Convention against Corruption, which states that intentional illegal enrichment, that is, a significant increase in assets of a public official, which exceeds his/her legal income and which cannot be reasonably justified, is recognized as a crime,” the think-tank said.
“However, at the same time, the Verkhovna Rada deliberately formulated the Ukrainian version of the article of the Criminal Code in such a wording that this article would differ from the article of the Convention, in order to avoid imposing the burden of proof on the suspect or accused.”
The think tank argued that the law does not violate the presumption of innocence “since the recognition of the person’s guilt takes place only on the basis of a court conviction,” and “therefore the burden of proof of the guilt of a person lies exclusively with investigators and prosecutors.”
Transparency International said on March 1 that the illicit enrichment article “did not place the burden of proof on the accused” and that “the burden of proof lay with the prosecution.”
In June 2018 the European Union Anti-Corruption Initiative also concluded that the illicit enrichment law does not contradict the Constitution of Ukraine.
Foreign experience
The Constitutional Court’s reasoning has also been criticized because currently there are similar illicit enrichment laws in about 45 countries.
The European Court of Human Rights has recognized illicit enrichment laws in various countries as valid. Moreover, the top courts of Lithuania, Kyrgyzstan, Moldova and France have recognized their illicit enrichment laws as compatible with their constitutions.
“In Moldova, where the definition of the offense of illicit enrichment is close to the wording contained in the Ukrainian Criminal Code (see above), the Constitutional Court also did not find a violation of the principle of the presumption of innocence,” the European Union Anti-Corruption Initiative said.
In some countries, the definition of illicit enrichment is even more wide-ranging than in Ukraine.
“The law in Lithuania includes one of the broadest definitions of illicit enrichment, which covers not only public officials but extends to any person. As will be shown below, the Constitutional Court of Lithuania found such a provision acceptable and compatible with the constitution of that country,” the European Union Anti-Corruption Initiative said.
In some national jurisdictions, the courts even allowed the reversing of the burden of proof to the defendant once the prosecution has built a prima facie case, the European Union Anti-Corruption Initiative added.
US angle
Stanislav Shevchuk, chairman of Ukraine’s Constitutional Court, cited the U.S. government’s position that “the offense of illicit enrichment as set forth in Article 20, however, places the burden of proof on the defendant, which is inconsistent with the United States Constitution and fundamental principles of the United States legal system.”
The U. S. government has said that “it is not obligated to establish a new criminal offense of illicit enrichment under Article 20” of the United Nations Convention against Corruption.
However, Shevchuk’s reasoning has been lambasted by experts who believe the Ukrainian illicit enrichment law does not place the burden of proof on the defendant.
“The Verkhovna Rada deliberately formulated the Ukrainian version of the article of the Criminal Code with such wording that this article would differ from the article of the (United Nations Convention against Corruption), in order to avoid imposing the burden of proof on the suspect or accused,” the CPLR said.
Shevchuk has also been rebuffed by U.S. government representatives.
U. S. Embassy Spokesperson Ray Castillo said that, despite not having an explicitly formulated article on illicit enrichment, the United States used signs of illicit enrichment as evidence in criminal cases and as grounds for firing public officials.
Marie Yovanovitch, the U.S. ambassador to Ukraine, said on March 6 that the Constitutional Court’s decision “is a serious setback in the fight against corruption in Ukraine.”
“It weakens Ukraine’s anti-corruption architecture, including the soon-to-be established High Anti-Corruption Court and the National Anti-Corruption Bureau of Ukraine,” she said. “I think one thing, coming after last week’s decision, would be passing — actually passing, not just proposing — a new and better amendment to the criminal code that not only restores illicit enrichment as an anti-corruption tool, but reinstates the dozens of cases that were undermined by the court decision.”
