The World Bank and the G7 on March 4 urged Ukrainian authorities to reinstate a law imposing criminal liability for illicit enrichment, calling its cancellation “a serious setback in the fight against corruption in Ukraine.”
The cancellation of the law by the Constitutional Court on Feb. 26 could put continued lending from the West and Ukraine’s visa-free regime with Europe at risk – the passing of the illicit enrichment law was a requirement for both.
“This has weakened the impact of the whole anti-corruption architecture, including the soon to be established High-Anti-Corruption Court, which was expected to rule on a significant number of illicit enrichment cases, and the ability of the National Anti-Corruption Bureau of Ukraine to investigate high-level corruption,” the World Bank and G7 said in a statement.
Following the court ruling, the National Anti-Corruption Bureau of Ukraine said it would have to close 65 criminal probes for illegal enrichment and four more cases that have already been filed in court.
The World Bank and G7 argued that “courts around the world have recognized that criminalization of illicit enrichment is a powerful tool in the fight against corruption, while at the same time respecting fundamental human rights and constitutional principles such as presumption of innocence, protection against self-incrimination and legal certainty.”
“The G7 and the World Bank call on Ukrainian authorities to step up efforts for safeguarding the effectiveness of anti-corruption legal tools and institutions, including by reinstating criminal liability for illicit enrichment in line with UN, OECD and ECHR principles and finding a way to continue the dozens of investigations and prosecutions threatened by this ruling.”
Meanwhile, anti-corruption watchdog Transparency International said on March 1 that “the Constitutional Court’s decision violates Ukraine’s international commitments.” The watchdog said it was calling on the Ukrainian government to immediately take all necessary steps to rectify the situation.
“The Court argued that (Article 368-2 of the law) violated the presumption of innocence and the right to refuse to testify,” the watchdog said. “However, Transparency International Ukraine’s analysis of Article 368-2 and the court’s decision proves that the article did not place the burden of proof on the accused. The burden of proof lay with the prosecution. The provision did not oblige a public servant to prove the legitimacy of assets acquired, but provided accused individuals with the chance to confirm the legitimate origin of their assets.”
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.
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, proposed another solution: passing an additional ruling of the Constitutional Court that will recognize a previous version of the illicit enrichment law as valid. In this case, courts will be able to convict current suspects in such cases.
