Will Constitutional Court overturn Ukraine‘s Western course?

 On Feb. 21, amendments to the Constitution of Ukraine, which (based also on the Lithuanian example) establish the country’s geopolitical orientation, came into force. Following these amendments, the Preamble to the Constitution emphasizes the European identity of Ukraine and the irreversibility of the country’s Euro-Atlantic aspirations, a demand of the EuroMaidan Revolution which drove President Viktor Yanukovych from power in 2014. Other articles of the Constitution establish the aim of Ukraine to achieve full-fledged membership in the European Union and NATO.

The amendments required two successful votes in the Ukrainian [arliament, the second vote – an approval from at least 2/3 of the members of the Parliament, i. e. at least 300 votes. The constitutional changes were approved by 334 votes. Needless to say, such cohesion between politicians is not a common phenomenon in Ukraine.

Prior to the adoption of these constitutional amendments, one of the most prominent arguments put forward by critics – even those who sincerely supported the country’s geopolitical choice – was the allegedly declarative nature of the amendments. Doubts were raised as to the actual extent to which these amendments could have an impact on the legal and political life of the state, and whether the amendments would not become a mere political declaration.

Photo by Oleg Petrasiuk

The hope was to dispel such doubts by drawing on the example of Lithuania: even before Lithuania became a member of the European Union, its Western geopolitical orientation, as consolidated in the Constitution, as well as its aspiration for full-fledged membership, as enshrined in the EU political and economic association agreement, had been given its specific content by the highest judicial authorities of the country – the Constitutional Court, the Supreme Court and the Supreme Administrative Court of Lithuania. In the course of adjudication of specific cases, the said courts interpreted the provisions of the Constitution and laws in the context of European Union law, taking into account the requirement to harmonize the national legal system with EU law. In line with the same reasoning, the best practices of EU countries, including the jurisprudence of constitutional courts, was and continues to be taken into account as well.

According to the official constitutional doctrine developed by the Constitutional Court of Lithuania, the constitutionally consolidated western geopolitical orientation, first of all, means membership of the country in the EU and NATO and the necessity to fulfill the obligations related to this membership. Accordingly, the said geopolitical orientation does not constitute a purely geographical concept. First of all, it has a value-based content – it is underpinned by universal constitutional values shared by democratic European and North American countries. Therefore, under the Constitution, there may not and does not exist any real (rather than alleged) contradictions between the constitutionally consolidated values and the main western values, nor between the obligations laid down in the Constitution and those arising from EU and NATO membership. Furthermore, as stated by the Constitutional Court, the western geopolitical orientation of Lithuania also implies the active dissemination of the values of the rule of law, democracy and human rights, upon which this orientation is based, in other states and, first of all, in the EU’s Eastern Partnership countries, including Ukraine.

It is obvious that the Constitution and laws of Ukraine should be interpreted in a similar manner, and even more so following the adoption of the constitutional amendments determining the western geopolitical course of the country. There is probably no particular need for convincing anyone that the widespread corruption, also in the form of illicit enrichment, taking place in Ukraine is incompatible with western democratic constitutional values.

Unfortunately, one has to admit that the decision passed by the Constitutional Court of Ukraine on Feb. 26, i.e. only 5 days after the constitutional amendments had entered into force, is clearly not a step in the Western direction. It is rather a step backward or even a step into the unknown, leaving unnoticed both the above-mentioned amendments to the Constitution and the international obligations of Ukraine, including those assumed under the EU association agreement.

The decision in question, whereby the Constitutional Court of Ukraine unconditionally granted the petition of the group of deputies of the Verkhovna Rada of Ukraine, declared unconstitutional the article of the Criminal Code that established the criminal responsibility of public servants and state officials for illicit enrichment – the acquisition of assets in a significant amount that cannot be justified based on legitimate income. Understandably, this decision of the Constitutional Court was good news to at least 65 influential state officials and public servants against whom the criminal proceedings instituted for illicit enrichment were to be immediately discontinued, as well as to many other individuals who might have faced problems due to corruption, since “universal amnesty” was granted for the acquisition of all assets of substantial value in the absence of the respective legitimate income to justify it. The decision has, in fact, denied the very meaning of the criminalization of illicit enrichment in Ukraine; irrespective of the wording that would be chosen to replace the repealed provisions, the said decision has made it impossible to establish a separate corpus delicti of illicit enrichment so that, in order for criminal responsibility to arise, it would be sufficient to prove that particular assets have been acquired in the absence of legitimate income to justify them, without going into the question of what specific unlawful acts were the source of the income received by the person concerned.

The sparse and contradictory arguments that have been provided by the Constitutional Court do not sound convincing. Although, in its decision, the Constitutional Court quotes the jurisprudence of the European Court of Human Rights concerning the meaning of the guarantees deriving from legal certainty, the presumption of innocence and the freedom from self-incrimination, it does not in any way link the respective provisions of the European Convention on Human Rights and the jurisprudence of the ECtHR to the article of the Criminal Code that criminalised illicit enrichment, nor does it take into account those cases of the European Court on Human Rights that would testify to a favourable standard for the criminalisation of illicit enrichment.

The decision of the Constitutional Court of Ukraine indicates that the provision of the Criminal Code defining illicit enrichment lacked legal certainty, also that, according to the said provision, the prosecution could hypothetically inadequately fulfill its duty and fail to collect all the evidence possibly substantiating the “legality” of assets acquired by the servant (official) and could thereby undermine the presumption of the innocence of the suspect/accused, thus shifting on him the burden of proof. However, in line with this “logic” of interpretation of the Constitution, which is based on hypotheses and the assumptions regarding the inadequate performance of the prosecution, the constitutionality virtually of all articles of the Criminal Code of Ukraine could be questioned.

The requirement laid down in the contested provision of the Criminal Code to acquire assets exclusively with legitimate income is clear to any honest individual. The more so should it be clear to public servants (officials), who are obliged under Ukrainian law to declare their income and assets. This requirement is not clear only to those whose assets, according to declarations, were obviously disproportionate to their income (i.e. exceeded their income tens and hundreds or even more times) and to whom a life ring has now been offered by the Constitutional Court of Ukraine. Those who are familiar with the Code of Criminal Procedure of Ukraine are aware that its provisions do not call into question the duty of the public prosecutor to collect all sufficient evidence on both the criminal offense having been committed and the guilt of the person concerned. This duty of the public prosecutor had not been repealed with regard to illicit enrichment: it was not the suspected/accused person, but specifically the prosecutor who, after having verified all the possible legitimate sources of the income gained by that person, was obliged to prove the illegitimate origin of the given income or assets.

The obligations of Ukraine to the European Union and other international organizations (e.g. the International Monetary Fund, the World Bank) to fight corruption and, thus, to criminalize illicit enrichment are not considered in the decision of the Constitutional Court of Ukraine. Neither does it make any mention of the jurisprudence developed by the constitutional courts of other states, including Lithuania, with regard to the constitutionality of the criminalisation of illicit enrichment. Meanwhile, the before-mentioned amendments to the Constitution determining the geopolitical orientation of the country, nevertheless, imply the duty of the Constitutional Court to assess the European context (including the case law of the ECtHR and European constitutional courts) along with other international obligations undertaken by the state. In the light of this context and the said obligations, the answer to the question as to what is more in line with the geopolitical orientation of the country – the widespread phenomenon of illicit enrichment with apparent impunity or the fight against corruption through the criminalization of illicit enrichment – would be evident.

In this regard, it should be noted that a particularly widely expressed negative international response to the decision given by the Constitutional Court of Ukraine on Feb. 26, 2019 is comparable to the reaction caused by the scandal-ridden decision delivered by the same court in 2010, when the form of government of the state was essentially overturned in a manner favorable to Yanukovych. The decision of 26 February has likewise been heavily criticized in the separate opinions published by some judges of this court.

In the case on illicit enrichment, the Constitutional Court of Ukraine missed an historic opportunity to recognise that the fight against corruption and injustice is a national constitutional imperative (a constitutionally justifiable objective in imposing criminal liability for illicit enrichment) and to declare the principle of transparency and the principle that state institutions serve the people, which both stem from the rule of law, to be constitutional values that are common to the democratic European and North American states.

In other words, the Constitutional Court of Ukraine has not seized the opportunity to show that the Western geopolitical orientation declared in the Constitution of Ukraine is not and will not be limited to a mere collection of political slogans, as well as that the provisions of the Constitution that enshrine it are actually in force and are applied in the same way as any other provisions. The decision of the Constitutional Court of Ukraine of Feb. 26 is, thus, a step towards the opposite direction – the constitutional protection of the rights of individuals suspected of corruption is now ensured on a level higher level in Ukraine than in EU states.

Ultimately, it is worth noting that more than one sensitive case related to the aspirations of the EuroMaidan Revolution, also known as the Revolution of Dignity, and the chosen geopolitical orientation currently lies on the desk of the judges of the Constitutional Court of Ukraine. These cases will further demonstrate whether the Constitutional Court of Ukraine redirects the country in the direction opposite to the western geopolitical course enshrined in its Constitution.

Ingrida Danėlienė is an expert of constitutional law. She was one of the co-authors of the Amicus Curiae brief (https://euaci.eu/what-we-do/resources/amicus-curae-on-constitutional-petition) on the constitutionality of the crime of illicit enrichment, submitted to the Constitutional Court of Ukraine on behalf of the Delegation of the European Union to Ukraine and the European Union Advisory Mission Ukraine