Constitutional cover: can Ukraine lose the support of the EU and the IMF due to the abolition of the anti-corruption norm

Ukrainian citizens may lose the opportunity to visit the EU countries without visas, and official Kiev risks remaining without financial support from the International Monetary Fund (IMF). So representatives of the international non-governmental organization Transparency International commented on the ruling of the Constitutional Court (CC) of Ukraine, which recognized the law on criminal liability for illegal enrichment as inconsistent with the Constitution.

In a statement released by the press service of Transparency International, it is noted that officials accused of corruption should be brought to justice.

“If a solution is not found, it is likely that the visa-free regime of the country with the EU and the IMF’s financial assistance will be frozen, which will hamper the economic development of the state,” the statement says.

In Transparency International urged the Cabinet of Ministers of Ukraine to take under its control and responsibility those cases that were previously closed by the investigating authorities as a result of the abolition of the legal norm on criminal punishment for illegal enrichment.

• AFP
• © JOHN MACDOUGALL

Not perfect, but effective

Recall, on February 26, the Constitutional Court of Ukraine issued a decree recognizing Article 368-2 of the Criminal Code as contrary to the basic law of the country. According to the article, government officials must confirm the legality of the acquisition of their assets. Otherwise, civil servants risk being convicted for up to 10 years. Such a harsh measure was envisaged for officials in a “particularly responsible position”.

The court found that the requirement for officials to prove the legitimacy of their financial condition is contrary to the principle of the presumption of innocence.

At the time of the decision of the Constitutional Court in the production of investigators there were dozens of criminal cases on the illegal enrichment of high-ranking officials of Ukraine. The court decision led to their automatic termination.

For example, in the fall of 2018, a criminal case was opened against the deputy of the Verkhovna Rada from the Popular Front faction Anton Gerashchenko. The investigation was initiated by the National Anti-Corruption Bureau of Ukraine (NABU). Earlier, Vladimir Omelyan, head of the Ministry of Infrastructure, was accused of receiving illegal income.

In 2017, the Prosecutor General of Ukraine Yuriy Lutsenko became the person involved in the case of illegal enrichment - the investigation was initiated by former Deputy Prosecutor General Renat Kuzmin. Decisions on these cases were never made, and after the decision of the Constitutional Court they were completely closed.

Shortly before the scandalous article was canceled, the criminal case was almost filed against Yulia Tymoshenko, the candidate for the presidency of Ukraine, the leader of the Batkivshchyna party. With such a call to the Lutsenko public organization "Center for Combating Corruption".

Recall, the article on criminal liability for the illegal enrichment of officials was introduced in Ukraine in 2015 at the request of the European Union. From the very beginning, Brussels linked the issue of granting Ukrainian citizens the right to visa-free visits to the EU with anti-corruption measures taken by the Ukrainian authorities. In addition, the adoption of anti-corruption norms is a prerequisite for providing Kiev with new IMF credit tranches.

As noted by Ukrainian analysts, article 368-2, albeit with shortcomings, but began to work - over 2,000 sentences were passed on it. This is more than the rest of the "anti-corruption" articles of the Ukrainian Criminal Code.

However, soon the Rada deputies criticized the law for the vagueness and imperfection of the language it contains. But instead of amending the text of article 368-2, the lawmakers decided to cancel it altogether. 59 deputies sent a submission to the Constitutional Court, on the basis of which the decision was made to abolish the rule.

• Judges of the Constitutional Court of Ukraine during the meeting
• RIA News
• © Sergey Starostenko

"Robbing the country with impunity"

The decision of the Constitutional Court on recognizing an unconstitutional article on illegal enrichment caused public outrage both in Ukraine and abroad.

As the head of the NABU, Artyom Sytnik, said, the verdict of the court was a big setback for Ukraine.

“All the states that were obtained illegally, all the states, the legality of which cannot be explained, are now legalized,” he stressed, commenting on the termination of criminal proceedings under the abolished article.

In turn, the Chairman of the Parliamentary Committee on Foreign Affairs, Anna Gopko, said that the judges of the Constitutional Court themselves could have become accused under the anti-corruption article of the Criminal Code.

"To many members of the Constitutional Court there are also questions about their illegal enrichment or that their standard of living does not correspond to incomes - their personal and their family members," the UNIAN deputy said.

Against the decision of the Constitutional Court, 11 public organizations operating in Ukraine came out in unison, in particular, Transparency International Ukraine, the Avtomaydan All-Ukrainian Association, the Center for Political and Legal Reforms, the Anti-Corruption Center and others.

Activists point to the illegality of the decision of the Constitutional Court, referring to the practice of the European Court of Human Rights and to the UN Convention against Corruption ratified by Ukraine. The court’s argument about the incompatibility of the Criminal Code article with the provisions of the basic law on the presumption of innocence is inappropriate in the case when it comes to fundamental public interests, human rights activists say.

"Key anti-corruption organizations urge the Constitutional Court not to put the future of Ukraine in jeopardy for the sake of the desire of the political elite to plunder the country with impunity," the joint statement of public organizations says.

Human rights activists also explain that Article 368-2 does not oblige a suspect to prove his innocence to law enforcement agencies. But the abolition of the anti-corruption law violates the international obligations of Ukraine and may jeopardize cooperation with the IMF. According to the rules of the fund, the financing of the program is terminated if a country has violated at least one of its obligations.

The situation around the decision of the COP has already begun to take advantage of the participants in the election campaign in Ukraine. Thus, the candidate for the presidency, former Defense Minister Anatoly Gritsenko, condemned the cancellation of the anti-corruption article. In his opinion, the COP has lost its legitimacy and should be dissolved.

Yulia Tymoshenko, in turn, managed to register a bill in parliament that returns the abolished provision.

The decision of the Constitutional Court "actually opens up opportunities for officials to abuse," said a statement published on the website of the Batkivshchyna party. True, Tymoshenko does not recall that she herself almost became the person involved in the investigation, since it was terminated as a result of the repeal of article 368-2.

It is worth noting that the President of Ukraine, Petro Poroshenko, sent to the parliament a new draft law on the establishment of criminal liability for illegal enrichment.

The fears of human rights defenders about the illegality of the decision of the Constitutional Court are also shared in the European Union. On February 28, the official representative of the European Commission, Carlos Martin Ruiz de Gordijuela, announced that a detailed analysis of the ruling of the Constitutional Court of Ukraine would be conducted at the EC.

On the same day, European Commissioner for Neighborhood Policy and Negotiations on Enlargement Johannes Hahn met with Deputy Prime Minister of Ukraine Gennady Zubko. The Ukrainian official assured European partners that illegal enrichment would remain a criminal offense, the EC spokesman said.

• European Commission spokesman Carlos Martin Ruiz de Gordijuela
• © ec.europa.eu

"Political tool"

Experts doubt that the EU and the IMF will indeed apply any sanctions against Kiev because of the violation by the Ukrainian side of the conditions of the earlier agreements.

According to the forecast of a member of the Council on Interethnic Relations under the President of Russia, Bogdan Bezpalko, the European Union is unlikely to use such harsh pressure measures as the abolition of the visa-free regime.

“In this issue, the EU and Ukraine are likely to come to a compromise. Poroshenko and a number of legislators can issue a similar law with other formulations and corrections that will allow a whole group of people to escape responsibility, ”the expert explained.

As for the IMF, the fund has long violated its charter when it issued loans to Ukraine and did not declare it bankrupt after its refusal to return the Russian Federation $ 3 million, although this amount was recognized as a sovereign debt.

“The International Monetary Fund is turning into a political tool just like other organizations, including the EU. After all, a visa-free regime was introduced not as an incentive to eradicate corruption in Ukraine, but as political support for the Kiev regime, ”Bezpalko recalled.

Mikhail Krivoguz adheres to a similar point of view. According to him, Ukraine can not be afraid for cooperation with the IMF and visa-free regime. Now the West, in fact, is hostage to its policy. The IMF will continue to make concessions to Kiev, although Ukraine has not yet completed a single fund program.

“If the West ceases to support the Ukrainian authorities, it is thereby recognized in the failure of the experiment to build Western democracy in the former Soviet republic,” the expert concluded.