Abolition of “Illegal enrichment” article is a step back in the Ukrainian anti-corruption reform

27.02.2019 00:00

The National Anti-Corruption Bureau of Ukraine (NABU) believes that the decision of the Constitutional Court on declaring Article 368-2 of the Criminal Code unconstitutional, which provided liability for illegal enrichment, now gives officials opportunities for abuse and provides indulgence to criminal offenses committed by them. From now on, a millionth wealth obtained from sources which legality are not confirmed is not considered a criminal offense in Ukraine.

According to the NABU, such decision is politically motivated and contradicts Ukraine's obligations under the UN Convention against Corruption, agreements with the International Monetary Fund and the European Union.

Ukraine is not the first state to test the constitutionality of the rules of prosecution for illegal enrichment.

Similar disputes over the supposedly unconstitutional nature of such an article took place in Lithuania as well. However, having considered this issue, the Lithuanian Constitutional Court has recognized the norm of "Illegal Enrichment" as complying with the Constitution of the Republic of Lithuania. It should be noted that punishments under this Article in Lithuania is much stricter than under the Ukrainian edition. Its action extends not only to government officials, but also to legal entities. In particular, the article stipulates that a person who holds by right of ownership property whose value exceeds 500 minimum subsistence levels (MSLs) (more than 19.5 thousand EUR), while being aware or having to be and likely to be aware that this property could not have been acquired with legitimate income, is punished by a fine or by arrest, or by the deprivation of liberty for a term of up to four years.

The National Bureau is convinced that the fear of being bringing to criminal liability before the start of the work of the newly formed High Anti-Corruption Court of Ukraine (which will consider the cases of the NABU and the SAPO, including cases under Article 368-2) switched on political regulation mechanisms.

Currently, the NABU Detectives investigate the facts of illegal enrichment in the total amount of more than half a billion UAH within 65 criminal proceedings. Among the persons whose wealth allegedly could not have been acquired with legitimate income, there are many judges, prosecutors, Members of Parliament, former and current Heads of state authorities. A Constitutional Court decision means that all criminal proceedings regarding illegal enrichment of these persons will be closed. It also applies to cases that are already being under trial in court. Among these cases there are the case as of the Head of the State Audit Service of Ukraine (accused of almost 10 million UAH of illegal enrichment), the case as of the Military Prosecutor of Anti-Terrorist Operation (ATO) forces (almost 3 million UAH of illegal enrichment), the case as of a judge from Luhansk Region (over 13 million UAH of illegal enrichment), case as of the Minister of Infrastructure of Ukraine (more than 4 million UAH of illegal enrichment).

In case of returning the relevant article to the Criminal Code, it will be impossible to start again investigations as of the persons within all 65 criminal proceedings, as well as prosecute suspects and accused persons for already disclosed facts of illegal enrichment, because the law has no retroactive effect. Therefore, the assets of public officials that exceed their official income will be recognized as fully legal.

The NABU is convinced that such a course of events does not correspond to the public interests and requirements of purifying the authorities from corruption. The Constitutional Court ruling is a step backwards in the anti-corruption fight and a revenge of the old system.