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

Oleg Polishchuk

Constitutional Court.jpeg

Unfortunately, human positivist laws have the nature of multiple interpretations, if contrasted to clear physical /natural laws.  For example, if a human falls out of the tenth floor in a multistory building, then the consequence would be a fatality for the fallen person.  The living human will become a dead one and would be buried under the existing traditions in the respective area.  Even if the Constitutional Court of Ukraine admitted the gravity of victimized body as unconstitutional and that its gravity ceases to exist after the official publication of such decision, the dead cannot be resurrected.

Unfortunately, in the positivist laws written by people, there is no such clarity.  The problem of legal certainty lies in human nature.  For instance, yesterday one person who occupies the high post in a poor warring country got illegally enriched while using his/her official powers, today this person received an amnesty from the sole entity of the state Constitutional jurisdiction.  Of course, this is not an amnesty provided by the Constitution of Ukraine. The Verkhovna Rada of Ukraine did not adopt a special amnesty law, as stipulated by the Main Law.  In fact, this is even better than amnesty, since the subject of criminal prosecution actually gets exempted from criminal liability without having to use his/her single-time constitutional right to amnesty. Even those more than five dozen people who came under suspicion under Article 368-2 in the Criminal Code of Ukraine, and whose cases have already been referred to the court, are now considered to be  innocent and honest citizens of Ukraine.

Judges of the Constitutional Court did not even consider the fact that some of the same people's deputies, who voted for the introduction of this article in the Criminal Code of Ukraine, and who signed the statement on its unconstitutionality, voted for its adoption back in 2015.  During this time period, the rights of these people's deputies were not violated, as there was no judicial practice of the Article 368-2 legal application.  This article was more of a symbol in the minds of society, rather than the effective working tool in preventing and combating corruption. Very often, the symbol is much more important than the actual result.   The symbol takes on special significance if the result is almost absent, as was still the case with the fight against corruption in Ukraine. However, in the absence of the result, one must not tweak the symbols without considering all other factors, because those very symbols and characters may be pointing to the idea; they may lead to the dream, to the path toward the truth, and inspire their existence. When there is no symbol, the whole sense of being vanishes. Judges in the Constitutional Court of Ukraine should have known this very well, when deciding on the Article 368-2 of the Criminal Code of Ukraine as being unconstitutional.   Citing the many decisions from the European Court on Human Rights, which became the reason for the Ukrainian Constitutional Court’s decision, can not be convincing enough in regards to the violation of  legal certainty principle.  Since the legal certainty principle is an integral part of the rule of law principle.  Back in 2004, The Constitutional Court of Ukraine noted that the rule of law means the actual ruling of law in society.

The rule of law requires the state to implement it in law-making and law-enforcement activities, in particular in laws that, in their content, should be permeated primarily by ideas of social justice, freedom, equality, etc.  One of the ways to display the rule of law is for the law not to be just pure law by itself, but for it also to include other social regulations, such as norms of morality, traditions, customs, etc., which are legitimate in a given society and are conditioned by the historical and cultural level achieved in the society.

Justice  is one of the basic principles of law. It is crucial in defining the law as a regulator of social relations, one of the universal human dimensions of law, Justice  is usually seen as the part of law, which is expressed,  in particular, in the equal legal sense of conduct and in proportion to the legal liability of the offence.

Article 368-2 in the Criminal Code of Ukraine was related to corruption crimes; its final version was adopted in 2015. At that time, Ukraine had survived the escape of former President Viktor Yanukovych, the annexation of Crimea, the occupation of Donbass by Russian troops, the Ilovaisk and Debaltsevo pockets.  Corruption itself, including in the Constitutional Court of Ukraine, has become the main cause of the listed scenes and events. Therefore, it is natural that the state has established legal responsibility for all actions committed by corrupt officials. Throughout the modern history of Ukraine, there is a demand for justice in the society, especially since the Revolution of Dignity.  At the same time, using intricacies in the legal interpretation of  formalized law norms, The Constitutional Court has actually justified corruption in the form of illegal enrichment for the officials by referring to the need to ensure the rule of law principle. 

Constitution Court.jpg

For some reason, the Constitutional Court of Ukraine did not take into account that,  according to Venice Commission approaches, one of the constituents of the rule of law principles is for the state to observe its international law obligations.

On May 18, 2018, Stanislav Shevchuk,  the Head of the Constitutional Court of Ukraine, declared at one of its events that the state needs to be strong, and that faith of its people in justice provides power for the state.  However, one can hardly call this a sense of justice strengthening in society, when The Constitutional Court of Ukraine has decided, as of 26.02.2019, to recognize the Article 368-2 in the Criminal Code of Ukraine as being unconstitutional.  Recognizing the article 368-2 as unconstitutional has actually led to complete vacuum in Ukrainian legislation in terms of combating corruption and illegal enrichment.  Even accepting the new law in shape of a new wording for the Article 368-2 in the Criminal Code of Ukraine does not eliminate this vacuum and does not ensure fairness in society; neither it provides the principle of legal certainty. It would be  good for the Constitutional Court of Ukraine to keep this in mind for the future.

During her speech on March 5, 2019 Maria Jovanovich, the Extraordinary and Plenipotentiary US Ambassador to Ukraine, had said that "this decision by the Constitutional Court is serious departure from the fight against corruption in Ukraine. It weakens the very anti-corruption structure in Ukraine, including the Higher Anti-Corruption Court of Ukraine, which has not yet been established".

Official authorities of the European Union and international financial organizations have already provided their assessment of this decision. However, this seems not of the concern for The Constitutional Court of Ukraine.

In this context, it is highly possible that The Constitutional Court’s next decision would be to recognize the Supreme Anticorruption Court as unconstitutional.  Our Constitutional Court will justify it should there be such claim.

P.s. There is a dedicated Telegram chat - follow the link to join and be first to learn about new posts and other compliance-related news.  

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.

Oleh 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).