Decisions of the Constitutional Court of Ukraine aimed at decriminalizing the articles on e-declaration and illicit enrichment dealt a serious blow to anti-corruption reform, but failed to stop it. This was stated by NABU Director Artem Sytnyk at the Discussion "Constitutional crisis in Ukraine: a year later" attended, inter alia, by the leadership of the National Agency on Corruption Prevention, the National Anti-Corruption Bureau, and the High Anti-Corruption Court on Oct. 27, 2021.
The National Bureau emphasizes on the need to restore the criminal liability for submitting false data to e-declarations by officials authorized to perform state or local government functions as soon as possible.
The decisions ruled by the judges of the Constitutional Court of Ukraine during 2019-2020 related to the fight against corruption cause concern. The consequences of such rulings are the systemic weakening of the institutional capacity of the bodies established to expose corruption. These rulings lead to the release from liability of persons involved in causing damages to the interests of the state on an especially large scale.
The ruling of the Constitutional Court of Ukraine, which imposes criminal liability for submitting false data to e-declaration, is political. In this way, the Constitutional Court of Ukraine not only legitimizes the intentions of politicians and officials to hide from society illegally acquired wealth, but also protects the interests of some judges of the Constitutional Court of Ukraine (under NABU investigations).
NABU believes that the decision of the Constitutional Court of Ukraine, which recognized certain provisions of the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine" as not in line with the Constitution of Ukraine, is attempt to block the fight against political corruption and stop cleansing of the judiciary in the state.
For the first time in the history of Ukraine, the Constitutional Court of Ukraine considered the issue of the constitutionality of an act of individual action, despite the opposite previous long-term judicial practice. However, the fact that the Presidential Decree on Appointment on the NABU Director is declared unconstitutional does not terminate the powers of the NABU Director or any other person who is appointed by the President, and does not automatically mean his dismissal. Until the Verkhovna Rada of Ukraine adopts the amendments to the legislation, Artem Sytnyk has the right to exercise his powers as the NABU Director. Therefore, currently NABU is operates normally.
A quick decision made after the publication of the so-called "Kyiv District Administrative Court recordings", including in relation to decision-making by the Constitutional Court of Ukraine is another step towards the destruction of the institutional independence of the National Bureau.
The decision of the Constitutional Court of Ukraine to deprive the National Bureau of the authority to invalidate illegal agreements in court protects the organizers of corruption schemes and actually legitimizes the embezzlement of funds of state enterprises during the procurement of goods, works and services at inflated prices. The Constitutional Court ruled on June 5, 2019, based on the lawsuit of the “Zaporozhye Ferroalloy Plant”.
Since Article 368-2 of the Criminal Code of Ukraine (“Illegal enrichment”) was declared unconstitutional by a decision of the Constitutional Court, as of March 28, 2019, the Detectives of the National Anti-Corruption Bureau of Ukraine (the NABU) and the Prosecutors of the Specialized Anti-Corruption Prosecutor’s Office (the SAPO) were forced to close criminal proceedings under this article. It is about the complete closure of 27 criminal proceedings and 38 — in parts of Article 368-2 of the Criminal Code of Ukraine. The total amount of the funds, the origin of which was investigated by the NABU Detectives in these cases, amounted to more than 500 million UAH.
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.