The last week of February was a great one for corrupt officials in Ukraine. They finally got off scot-free. Ukraine’s Constitutional Court (CCU) eliminated criminal liability for illicit enrichment. This decision is a major step back in Ukraine’s struggle to fight high-level corruption. (Incidentally, the US Ambassador to Ukraine agrees with this assessment.) And the timing is not accidental either.
On February 26, the Constitutional Court declared the provision on illegal enrichment, or Article 368-2 of the Criminal Code, unconstitutional. Under Article 368-2, public officials whose assets and expenses clearly exceeded their official incomes could face up to ten years in jail, a three-year ban from office, and asset seizure. Introduced after the Revolution of Dignity in 2015 as part of the anti-corruption legal framework, the article was linked to the introduction of the e-declaration system, which required all public officials to register their assets online annually, and the creation of the National Anti-corruption Bureau of Ukraine, which is the law enforcement body authorized to investigate high-level corruption based in part on the information provided in the e-declarations.
Since 2015, NABU had opened sixty-five investigations and had a few cases against top officials pending before the courts. Those who cannot explain the origins of their assets while in office include MPs, ministers, heads of executive bodies, judges, and prosecutors. Many of the names won’t be familiar to Western readers, but this short sample gives one a flavor of the cases:
NABU accused former prosecutor of the ATO forces Konstantin Kulik of acquiring property worth almost 3 million UAH. His case has been stuck in court since 2016;
1. According to NABU, Lydia Gavrilova, the head of the State Audit Service, which exercises financial control over expenditures from the state budget, acquired property and jewels during 2015-2017 worth nearly 10 million UAH, which significantly exceeds her income.
2. NABU sent to the court the case of Minister of Infrastructure Volodymyr Omelyan who according to detectives could not explain the origin of his assets worth more than 4 million UAH.
3. The head of the District Administrative Court of Kyiv Pavlo Vovk has been under investigation for hiding valuable property and an elite house through a fake divorce.
5. The first deputy head of the Security Service of Ukraine Pavlo Demchina is under investigation for acquiring cars and land worth almost 4 million UAH in 2015-2016 without revenue for such expensive purchases.
6. Former head of the State Fiscal Service Myroslav Prodan was suspected of unjustifiably acquiring property worth 89 million UAH while in office.
7. Radical Party MP Yevgeny Deydey, who according to NABU in 2015-2016, became the owner of real estate and cars worth four times more than his official income and income of his family members. The leader of the same party and presidential candidate Oleh Lyashko was also under investigation after journalists discovered that Lyashko and his wife had bought real estate for 20 million UAH.
These cases and several dozen others will now be closed, and this decision cannot be appealed. Moreover, the court’s judgement renders the e-declaration system meaningless; officials who stole in the past got away with it.
Furthermore, even if a new law passes (Poroshenko introduced one that has been criticized by anti-corruption organizations), these cases cannot be reopened. Three years of NABU’s work went up in smoke, just like the three years we spent fighting for an effective e-declaration system.
What is even more important is that this irreversible damage to Ukraine’s anticorruption struggle is neither accidental nor untimely.
Activists have known that “old Ukraine,” as former US Ambassador Geoff Pyatt termed it, would try to overturn criminal liability for illegal enrichment until they succeeded. This was not the first attempt. In December 2017, 59 MPs asked the Constitutional Court to rule the provision on illicit enrichment unconstitutional. Subsequently, they made several attempts to water it down in parliament. For instance, in January 2018, four MPs submitted a draft law that would kill it. Only a public outcry saved the day. The bill was rejected. Six months later, another bill appeared in parliament aimed at weakening it. This time the draft suggested that criminal proceedings for illegal enrichment of law enforcement should only be based on the conclusions of the National Agency on Prevention of Corruption (NAPC), which is an outrageous suggestion. NAPC has failed spectacularly and needs to be rebooted. These attempts show the Rada’s strong intent to get rid of illicit enrichment, and are an effective counterargument to those who say that Ukraine’s anti-corruption laws and infrastructure completely failed. If they failed, why has the illegal enrichment provision been savaged continually?
Taking the decision to the Constitutional Court was the right move for corrupt elites. The court remains politically dependent, despite undergoing “judicial reform.” As the author of the new law on the Constitutional Court, President Petro Poroshenko could have foreseen the formation of the Constitutional Court through an independent contest, but he never did. Moreover, as president he had an opportunity to bring in six new judges, but he kept Yanukovych-era appointees in place who became dependent on him.
The timing for this decision is also not accidental. The CCU’s decision to cancel illicit enrichment a few weeks prior to the presidential election should be understood for what it is. Poroshenko polls second or third, depending on the poll, and a recent scandal may hurt him even further. Getting rid of this annoying law is the way to protect himself (if he loses the elections) and his closest allies. The decision may impact the parliamentary elections as well: every third criminal proceeding of possible illegal enrichment or declaration of inaccurate information concerns current MPs. Had they been convicted they would have been banned from holding office for three years. That obstacle has been removed.
The court’s decision demonstrates how the private interests of the political elite trump national and international security issues. Corruption still remains one of the greatest threats and long-lasting tools used against Ukraine in the hybrid war with Russia. We do Ukraine or its 44 million people any favors by sugarcoating this reality.