On 26 February 2019, the Constitutional Court of Ukraine struck down Article 368-2 of the Criminal Code – the provision on illicit enrichment. This decision greatly weakens the country’s anti-corruption efforts, undermines up to 65 open investigations and has a direct impact on four cases against high-ranking officials that were already before the courts. Transparency International, together with its Ukrainian chapter, believes that the Constitutional Court’s decision violates Ukraine’s international commitments, and calls for the Ukrainian government to immediately take all necessary steps to rectify the situation.
“The Court’s resolution basically provides state officials with a way to legalise their possibly ill-gained assets and have no fear of criminal prosecution,” said Andrii Borovyk, Executive Director of TI Ukraine. “Moreover, the electronic declarations of public officials’ assets that have been successfully introduced as part of anti-corruption reforms will now lose their purpose due to the lack of criminal responsibility for illicit enrichment. Eventually, provisions against deliberately declaring false information will also lose their purpose, as there will be no need to hide assets.”
According to Ukrainian law, the decision of the Constitutional Court is binding, final, and cannot be appealed. The Court argued that the Article violated the presumption of innocence and the right to refuse to testify. 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.
The Government of Ukraine should take responsibility for the cases that investigators, prosecutors, and judges will be forced to close due to the ruling. Even if a new law on illicit enrichment is introduced and adopted, it will not be retroactive, leaving all current cases closed and allowing the corrupt to escape justice.
The National Anti-Corruption Bureau of Ukraine has called the Court’s decision a politically motivated move that will severely impact their current investigations.
“If the systemic legislative problems in Ukraine are not resolved and cases of illicit enrichment are abandoned, many of the country’s anti-corruption achievements will have been in vain,” said Delia Ferreira Rubio, Chair of Transparency International. “Officials accused of corruption should be prosecuted and rule of law established. If no solution is found, there is a chance that the country’s visa-free regime with the EU and financial assistance from the IMF will be frozen, hampering the country’s economic development.”