Despite the high appraisal of the new anti-corruption legislation of Ukraine by international organizations, an in-depth legal analysis shows that it is in fact unconstitutional, write Victor Solovyov and Roman Rukomeda.
Victor Solovyov is an anti-corruption expert. Roman Rukomeda is a political expert.
Since Ukraine became independent 24 years ago, the issue of corruption has been of high relevance. After the Revolution of Dignity in February 2014, Ukrainians were hoping that corruption will start disappearing in all spheres of life. This is confirmed by research of citizen attitudes with respect to anti-corruption activities. In particular, in March 2014, 63% were in favor of giving priority to implementing reforms aimed at fighting corruption. In December 2014, 35.5% of those interviewed responded that “the best way to fight corruption is execution by firing squad (as in China)”.
During the presidential and parliamentary election campaigns, almost all politicians were on the same page regarding the necessity of defeating corruption. When he appointed Vitaliy Yarema on 19 June to the post of the Prosecutor General of Ukraine, President Petro Poroshenko quoted the famous phrase of the former Prime Minister of Singapore Lee Kuan Yew: “How to start fighting corruption? Start with putting three of your friends in jail. You know exactly for what, they know for what, and the people will believe you.”
Unfortunately, Poroshenko's optimism has fallen short, which is confirmed by official statistics. For example, in 2014 2,381 cases of criminal corruption were initiated for a corruption offense committed by 1,713 persons. Out of 788 convictions, 430 were exempt from punishment with a trial period, 60 were pardoned, and 12 were exculpated. Criminal proceedings against 135 persons were closed. Penalty as the main form of punishment was applied to 227 persons. And only 35 persons were imprisoned, i.e. subjected to real punishment for criminal acts of corruption. And this is despite the fact that, as of 1 January 2015, there are 380,257 civil servants and local government officials in Ukraine. And the number of persons being subject to anti-corruption legislation is roughly more than 1 million.
For the first months of 2015, shows no improvement. What is clear is that despite a recent increase in the number of corruption scandals, the real fight against corruption in Ukraine has not yet begun.
The situation is equally worrying with respect to the implementation of the Law “On the National Anti-Corruption Bureau of Ukraine” (NACB). The President’s powers are spelled out in the Constitution of Ukraine. In no way do they give him the right to appoint the NACB director.
By appointing an NACB director by decree, Poroshenko exceeded his powers and violated the constitution. On the whole, according to the Criminal Code of Ukraine such actions by officials fall under the article “Abuse of Power or Office”. However, the president enjoys immunity; hence, this will have no legal consequence for him.
Even the establishment of the NACB by the President of Ukraine is unconstitutional, since he is not vested with the relevant constitutional powers. The provision of law envisaging the dismissal of the director of the NACB at the request of at least one-third of the Ukrainian MPs of the constitutional composition of the Parliament is also doubtful from the constitutionality viewpoint. The constitution does not grant such powers to MPs.
It is of particular importance that future “clients” of the Anti-Corruption Bureau are influential people who use economic, political and legal means to avoid responsibility. It is easy to predict that creating the NACB without a constitutional basis would trigger appeals to the Constitutional Court to declare the Law of Ukraine “On NACB” unconstitutional. It can be predicted that the Constitutional Court would declare the Law On NACB invalid. However, in our opinion, this legal precedent will have even more negative social consequences - the ultimate loss of faith of the society in the ability of the state to effectively counter corruption, which could lead to a new wave of social discontent.
By the way, the legality of the NACB can also be challenged by courts of general jurisdiction. This situation may arise, for example, in case of appealing in court the fact of detention by NACB detectives of a person suspected of corruption. The decision of the Constitutional Court of Ukraine of 1996 provides that “in case of uncertainty regarding the conformity of the applicable law or the law to be applied in a particular case, with the Constitution of Ukraine, the court, at the request of the parties to the process or on its own initiative shall suspend the proceedings and resort to the Supreme Court of Ukraine with a reasoned ruling (decree)". Subsequently, the court raises an issue regarding the constitutionality of the applicable law at the Constitutional Court.
The unconstitutionality of the Anti-Corruption Bureau is also supported by the fact that it has the status of a governmental law-enforcement agency. This means that the NACB is endowed with power and has to belong to one of the three branches of government. However, this status is not defined by the law.
Moreover, any violation of the constitutional norms, of human and civil rights and freedoms, and of the principle of legal certainty may be subject to consideration by the European Court of Human Rights.
Such vertical conflict of norms of national legislation leads to a violation of the principle of the rule of law, which is based on the constitutionally enshrined rights and freedoms. In the implementation of prevention and combating corruption, they are recognized as the highest social values and determine the content and focus of anti-corruption activities. The recognition of Ukraine as a rule-of-law state implies that anti-corruption efforts should be based solely on legal principles.
This issue can be solved only by introducing appropriate amendments to the Constitution of Ukraine. Any rewriting of the anti-corruption law will make us walk into the same trap twice.
Taking into account the jurisdiction of the NACB, the special status of the subjects of corruption offenses, and the public expectations, the legislative basis of this agency must be flawless.