Photo from UNIAN, Andriy Kravchenko

The Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on December 9 issued an urgent joint opinion on the legislative situation regarding anti-corruption mechanisms following the decision of the Constitutional Court of Ukraine to repeal criminal liability for the inaccurate declaration of assets by the country's officials.

Recognizing that the fight against corruption is an "essential element" in a state governed by the Rule of law, the Commission and the DGI say that "so is respect for the Constitution and for constitutional justice."

Parliament and the executive branch must respect the role of the Constitutional Court as the "gatekeeper of the Constitution" and "take into account the arguments used by the Constitutional Court."

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"In turn, a Constitutional Court, like any other state institution and court, on the one hand deserves institutional respect but, on the other hand, must respect its own procedures and for the sake of constitutional stability and legal certainty, must issue decisions that are generally consistent with its own case-law. Even more importantly, a constitutional court must decide within the parameters of its legal authority and jurisdiction," the joint opinion reads.

The Venice Commission has acknowledged that the Constitutional Court's decision in question "lacks clear reasoning, has no firm basis in international law, and was possibly tainted with a major procedural flaw – an unresolved question of a conflict of interest of some judges."

"This is regrettable, not only because of the immediate negative effect of this decision on the fight against corruption in Ukraine, but also because such decisions undermine public trust in constitutional justice in general," the joint opinion reads.

"Nonetheless, the constitutional role of the Constitutional Court must be respected, and the Verkhovna Rada should implement the decision by interpreting it in light of the constitutional foundations of the country and applicable international standards, preserving public interests such as the fight against corruption, including in the judiciary," the opinion says.

Read alsoUkraine's law on asset declarations has several deficiencies, EU saysIn particular, "it is important to keep the duty of public officials (including judges of ordinary courts and of the Constitutional Court) to submit financial declarations, to have an efficient mechanism of verifying such declarations, and to provide in the law for appropriate sanctions for those public officials – including judges and prosecutors – who knowingly submit false declarations/fail to submit declarations."

In this light, the Venice Commission proposes that the Verkhovna Rada look into the following solutions:

  • As regards Article 366-1 of the Criminal Code, invalidated by the Constitutional Court, criminal liability for the submission of knowingly false declaration/failure to submit declaration should be restored, but the law may specify in greater detail the different sanctions corresponding to the degree of criminal responsibility, reserving, for example, the sanction of imprisonment for cases above a certain threshold and for perpetrators acting with deliberate intent;
  • As regards the powers of the National Agency for Corruption Prevention (the NACP) to verify declarations, all of its powers in respect of public officials other than judges, may be restored as they are unaffected by the reasoning used by the Constitutional Court in its judgment;
  • As regards the powers of the NACP vis-à-vis judges, additional safeguards may be introduced in the law to protect them from potential abuses:
  1. The independence of the NACP in practice and the public control over its activities should be improved as per GRECO recommendations;
  2. Some of the investigative powers of the NACP may be formulated more precisely and narrowly, or special exceptions and procedural safeguards in respect of judges may be envisaged;
  3. In order to shield judges from potential abuses by the NACP, the law may provide for the supervision of the activities of the NACP in respect of judges either in the form of a complaints mechanism, or in the form of regular reporting by the NACP to an appropriate judicial body.