The National Agency on Corruption Prevention (NACP) says it will be impossible to reboot Ukraine's anti-corruption system without repealing a ruling by the Constitutional Court of Ukraine (CCU) on government officials' e-declarations.
The NACP said this on Facebook on November 1 in response to a letter sent by President of the Council of Europe's European Commission for Democracy through Law (Venice Commission) Gianni Buquicchio and President of the Group of States against Corruption (GRECO) Marin Mrčela to Verkhovna Rada Chairman Dmytro Razumkov. They spoke up against the draft law on renewal of public confidence in constitutional judiciary, which President Volodymyr Zelensky has tabled in parliament. The letter was posted on the website of the Council of Europe on October 31.
The NACP says it is convinced that passing its decision, the CCU violated the Constitution of Ukraine at least twice.
Firstly, the NACP notes, the court interfered with the powers of parliament, noting that the establishment of criminal liability for declaring deliberately false information, as well as deliberate non-submission of a declaration is an excessive punishment for committing these offenses. According to the Constitution of Ukraine, it is exclusively without the powers of the legislative branch to determine which action is a crime.
"This means that it is impossible to reinstate criminal liability for declaring false information, as well as restore equality of all branches of power by adopting a new law. Any law that reinstates criminal liability will almost automatically be considered unconstitutional, given this decision by the CCU," it said.
Secondly, the Constitution establishes a rule all branches of government must abide by – to act exclusively within their powers, in the manner and on the grounds provided for by it and the laws of Ukraine.
"According to the Constitution and the laws of Ukraine, the CCU could only pass decisions on the provisions of laws on the prevention of corruption challenged in a motion [filed by Ukrainian lawmakers]. Yet, the judges violated the Constitution and canceled the provisions of the Law of Ukraine on the Prevention of Corruption that were not a subject of the constitutional motion lodged by 47 parliamentarians," the NACP said.
The Agency also pointed out that being a judge in their own case is prohibited by the fundamental principles of law.
"The anti-corruption provisions, which were repealed [by the CCU], were a basis for a case to make three CCU judges – [Volodymyr] Moisyk, [Ihor] Slidenko, and [Iryna] Zavhorodnia – administratively and criminally liable," the NACP said. "They were aware of this fact, however, they chose not to recuse themselves from the case but to repeal the relevant provisions. On the day when the decision was made, a fact was established that [another CCU judge] Serhiy Holovaty had failed to mention UAH 3.6 million (about US$126,500) in [his income] declaration, yet he knew about this fact while taking part in the [CCU] meeting," the NACP notes.
Therefore, when passing the decision, "the judges acted in their own interests."
The NACP also says that in its reports, GRECO positively assesses the declaration system created in Ukraine.
"GRECO appreciates that legal and regulatory measures have been taken to improve the control of financial declarations and to provide for appeal channels," GRECO said in a report on the results of the fourth evaluation round.
"It is also positive that illicit enrichment has been re-criminalised," it said.
Although there is a special section in GRECO's assessment reports, titled "Corruption prevention in respect of judges," there is no recommendation for the creation of a separate agency to collect, store and verify their declarations.
As earlier reported, the Council of Europe expressed concern over the draft bill on restoring public confidence in constitutional judiciary, which was initiated by Ukrainian President Volodymyr Zelensky to terminate the powers of Constitutional Court judges.
Constitutional Court's controversial decision on illegal enrichment: Facts
- On October 27, the Constitutional Court ruled on a motion filed by 47 legislators to repeal Article 366-1 of the Criminal Code, which provides for criminal liability for inaccurate asset declaration by government officials.
- The Constitutional Court also recognized the provisions of laws on the verification of officials' e-declarations as unconstitutional and deprived the NACP of the authority to check asset declarations and identify conflicts of interest.
- The Constitutional Court, by its decision, blocked the NACP's access to the state registers necessary for conducting special checks on declarations of candidates nominated for top positions in the government. Without such vetting, no head of a government agency could be appointed officially.
- On October 28, the NACP closed access to the State E-Declarations Register.
- On October 28, the Constitutional Court published the text of the respective decision adopted by its Grand Chamber, composed of 15 judges.
- The National Anti-corruption Bureau of Ukraine (NABU) said that pursuant to the Constitutional Court's decision, all cases of inaccurate declaration of assets would be closed, and government officials convicted of abuse would thus evade liability.
- On October 29, President Zelensky gave instructions at a meeting of the National Security and Defense Council to immediately table a bill in parliament that provides for the restoration of the integrity of legal proceedings in the Constitutional Court.