From the Illegal to Legal Enrichment Through Decision of the Constitutional Court, Part I/II

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Recently, Jonathan Sumption, the ex-judge of the Supreme Court in Great Britain (his nickname is “The Brain of Britain”), in his interview with the British magazine for lawyers “Counsel Magazine”, referring to future lawyers, said: "Do not read the law if you intend to practice it and you can afford a slightly longer path to qualification. Discover the culture first, if you can, and history. " That is, in the words of this respected lawyer, before learning the law and laws it would be worth learning the culture and history.

It is difficult to disagree with this after reading the decision by the Constitutional Court of Ukraine, dated 26.02.2019, which found Article 368-2 of the Criminal Code of Ukraine, regarding Illegal Enrichment, unconstitutional. An introduction to the text of the the Constitutional Court decision of and its legal analysis indicate that this decision is mostly based on unjustified assumptions, and not on doctrinal scientific and philosophical analysis of legal norms; it does not ensure the implementation of one of the  Constitutional Court’s main functions  - the  constitutional control.    On the contrary, the Constitutional Court questioned the ability of Ukraine, of the whole European state, to comply with its own international obligations, which are accepted as crucial and necessary moment for the state.  In fact, the Constitutional Court allowed the possibility of leveling these obligations after reaching the desired result.   That is, when the visa-free regime between Ukraine and the European Union was required in 2015, the article No. 368-2 regarding the Illegal Enrichment was accepted.  However, once visa-free regime was acquired, the article was actually abolished by The Constitutional Court, which by its nature is independent under the current Constitution.  At the same time, judges of The Constitutional Court seemingly forgot that despite its independence, the court, though independent, still remains the state entity and represents the judicial branch of power.

According to generally accepted practice by the UN International Court of Justice, all courts - independent authorities and exercising their functions of justice in their respective countries - in external perception are acting on behalf of their own state and as part of the state judicial power.   Therefore, in this context, one can argue that the Constitutional Court of Ukraine is an independent authority and acts legally on the basis of Ukrainian Constitution only as long as this court does not undermine the obligations assumed by the whole state, since it also represents this state in the foreign sector.

One could discuss indefinitely, whether The Constitutional Court's decision is well-grounded or not, while, in fact, it does not matter.   Let us use facts and results:   By February 26, 2019, there was a criminal liability for illegal enrichment in Ukraine. However, after this date, such liability no longer exists. In fact, a government representative who is illegally enriched, would receive an amnesty under the banner of human and citizen rights’ protection.

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The Constitutional Court of Ukraine and its influence on the modern history of the state are extraordinary. At the very least, it is worth mentioning decisions of this entity when it attempted to count presidential terms of  Leonid Kuchma – who was President of Ukraine at the time.  We should recall how the Ukrainian Constitutional Court had managed to change simple mathematics: on several sheets of paper the document contained grounded justification of how one plus one would still equal one.   And, no matter how hard the judges did try to prove complicated legal subtleties, in the perception of the Ukrainian society all this remained as one: complete nonsense.

Moreover, it was senselessness at such large scale, that even Leonid Kuchma, the Ukrainian President at that time, agreed to its nonsense and refused to go onto his third presidential term.  Although in connection with Leonid Kuchma's refusal to run for the third presidential term, the decision of the Constitutional Court did not manage to play an evil joke on the Ukrainian society, still a slow-motion bomb was laid at that time. This bomb was called “permissiveness and irresponsibility”.  This permissiveness made it again possible for the Constitutional Court of Ukraine to abolish then current Constitution of Ukraine and restore unlimited powers to the  President of Ukraine at the time, Viktor Yanukovych. Consequences of this decision were fully felt by the state and are still being felt by every part of the Ukrainian society.  Annexation of Crimea, occupation of half of the Donbas territory, plunder in the country - all this comes as the result of decision which was  adopted in 2010 by the Constitutional Court of Ukraine.

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Oleg is the Director of the Directorate for Prevention and Counteraction of Corruption , Compliance Officer, and the Advisor to the President of the Biggest State Enterprise Generating Atomic Energy.

He obtained his master degrees in law, public administration, and atomic engineering. In 2017, he received his MBA degree from the MIM Business School.

Oleg is an attorney at law. and has been recognized in 2018 as the best Compliance Officer by one of the most reputable legal publisher (Yuridicheskaya practica).