If Ukraine does not change its position concerning the decriminalization of the illicit enrichment, what makes all the fights on corruption in vain, it might lose visa-free regime with the EU and the support of the International Monetary Fund, bringing severe economic consequences. Transparency International, the global civil society organization leading the fight against corruption, posted this warning on its website.
"On 26 February 2019, the Constitutional Court of Ukraine struck down Article 368-2 of the Criminal Code – the provision on illicit enrichment. This decision greatly weakens the country’s anti-corruption efforts, undermines up to 65 open investigations and has a direct impact on four cases against high-ranking officials that were already before the courts. Transparency International, together with its Ukrainian chapter, believes that the Constitutional Court’s decision violates Ukraine’s international commitments, and calls for the Ukrainian government to immediately take all necessary steps to rectify the situation," the report said.
Transparency International believes that the Court’s resolution basically provides state officials with a way to legalize their possibly illegal assets and have no fear of criminal prosecution. Besides, the electronic declarations of public officials’ assets that have been successfully introduced as part of anti-corruption reforms will now lose their purpose due to the lack of criminal responsibility for illicit enrichment.
According to Ukrainian law, the decision of the Constitutional Court is binding, final, and cannot be appealed. Anyway, the Court argued that the article on illicit enrichment violated the presumption of innocence and the right to refuse to testify. However, even common analysis shows that this article did not place the burden of proof on the accused. The burden of proof lay with the prosecution. The provision did not oblige a public servant to prove the legitimacy of assets acquired but provided accused individuals with the chance to confirm the legitimate origin of their assets.
Transparency International urges the government of Ukraine to take responsibility for the cases, where investigators, prosecutors, and judges will be forced to close due to the ruling and granting the criminals an absolute amnesty. Even if a new law on illicit enrichment is introduced and adopted, it will not be retroactive, leaving all current cases closed and allowing the corrupt to escape justice.