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Legal opinion on the conformity to the Constitution of Ukraine (constitutionality) of the laws of Ukraine on the activities of bodies aimed at combating and preventing corruption

09:14 16 January 2018512
Legal opinion  on the conformity to the Constitution of Ukraine (constitutionality) of the laws of Ukraine on the activities of bodies aimed at combating and preventing corruption

Text of the legal opinion of the Institute of Law and Society on the activities of bodies aimed at combating and preventing corruption

Experts of the Institute of Law and Society carried out a legal analysis of the laws of Ukraine on the activities of bodies aimed at combating and preventing corruption in order to ensure the implementation of the constitutional order established by the Basic Law in the sphere of ensuring the principle of the rule of law and legal certainty, according to which the Constitution has the highest legal force, and laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it.

The problem of corruption was one of the catalysts of the Revolution of Dignity in Ukraine, which led to a change in the Government, the escapades of the President and of the majority of his supporters in February 2014. Since then, the new government has launched a number of important reforms in the fight against corruption, in particular, the so-called "anti-corruption package" of legislation, including the anti-corruption strategy for 2014-2017 and the Action Plan for it. The result was the creation of the National Agency for the Prevention of Corruption (NAPC), the National Anti-Corruption Bureau of Ukraine (NABU), the Specialized Anti-Corruption Prosecutor's Office (SAP) and the National Agency of Ukraine on Identification, Tracing and Management of Assets Derived from Corruption and Other Crimes (Agency for search/return of assets, ASRA). But recent research indicates a very common perception that corruption is deeply rooted, and corruption on an especially large scale remains the most acute problem.

Recently, the entire international community and Ukrainian society was riveted to the scandals that arose between the newly created anti-corruption bodies of NABU, SAP, the Prosecutor General's Office and the NAPC.

Experts of the Institute of Law and Society express their deep concern as a result of the spread of corruption in Ukraine and in state authorities, which is a threat to the national interests of Ukraine and its People in accordance with Article 7 of the Law of Ukraine "On the Fundamentals of National Security of Ukraine".

We have to state that such phenomenon as corruption spreads due to gross non-fulfillment of the Constitution of Ukraine, adoption of anti-corruption laws that do not comply with the requirements of the Basic Law, such that do not provide protection against political influence.

We note that the basis for overcoming corruption phenomena is the inability of political and oligarchic elites to influence anti-corruption law enforcement agencies.

The specialists of the Institute analyzed the current legislation on the bodies that are called upon to fight and oppose corruption, as well as on the bodies that oversee their activities and came to the conclusion that some of their provisions do not comply with the Constitution of Ukraine.

We state that the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” adopted by the Verkhovna Rada of Ukraine concerning the legal basis for the formation, organization and activities of the National Anti-Corruption Bureau of Ukraine does not partially comply with the requirements of the Constitution of Ukraine.

The President of Ukraine exercises the powers defined by the Constitution of Ukraine in accordance with paragraph 31 of part one of Article 106 of the Constitution of Ukraine. This means that the President of Ukraine cannot be vested with powers not provided for by the Constitution of Ukraine by laws or regulations. The Constitutional Court of Ukraine repeatedly noted this in a number of its decisions (from April 10, 2003 No. 7-rp/2003, from April 7, 2004 No. 9-rp/2004, from May 16, 2007 No. 1-rp/2007, dated October 2 2008 No. 19-rp/2008, dated October 8, 2008 N 21-rp/2008, December 17, 2009 N 32-rp/2009).

The Constitutional Court of Ukraine concluded in its Decision of 16 May 2007, in the case on the constitutional representation of the High Council of Justice on the official interpretation of the provision of part five of Article 20 of the Law of Ukraine “On the Judiciary of Ukraine” (the case on the release of a judge from an administrative post) that the provision to the President of Ukraine by the fifth article 20 of the Law of the power to appoint a judge to the position of chairman, deputy chairman of the court, and also to release him from this post part contradicts Article 106 of the Constitution of Ukraine, then this provision of the law is unconstitutional.

Regarding the powers of the Verkhovna Rada of Ukraine, the Constitutional Court of Ukraine, in its Decision of 7 April 2004 on the case of compliance to the Constitution of Ukraine (constitutionality) of the provisions of subparagraph "a" of paragraph 2 of Article 5, Article 8, paragraphs 1, 2 of clause 2 of Article 23 of the Law of Ukraine “On the organizational and legal foundations of the fight against organized crime”, of Presidential Decrees “On the Coordination Committee for Combating Corruption and Organized Crime” and “On Improving the Effectiveness of the Coordinating Committee for Combating Corruption and Organized Crime” (the case of the Coordinating Committee) noted that the Verkhovna Rada of Ukraine under the Constitution of Ukraine is not empowered to create any body under the President of Ukraine, this is the exclusive competence of the President of Ukraine.

 At the same time, the President of Ukraine is given powers not provided for by the Constitution of Ukraine by the Law. In particular:

1) The National Anti-Corruption Bureau of Ukraine is formed by the President of Ukraine (part two of Article 1);

2) The Director of the National Bureau is appointed and dismissed by the President of Ukraine on the consent of the Verkhovna Rada of Ukraine. (Article 6);

3) The President of Ukraine participates in the formation of a competitive commission for the appointment of the Director of the National Anti-Corruption Bureau of Ukraine, identifying three persons in its composition (clause 1 of part three, clause 4 of part six, part nine and ten of article 7, clause 3 of the Final Provisions). Another three persons should be determined by the Cabinet of Ministers of Ukraine and the Verkhovna Rada of Ukraine;

4) Regulations on the Council of Public Control and on the procedure for its formation are approved by the President of Ukraine (part two of Article 31). However, the law does not specify who forms the said Council, which in turn does not comply with Article 8 of the Constitution of Ukraine on the operation of the rule of law in Ukraine, the element of which is the requirement of legal certainty of the law;

5) The President of Ukraine may determine, in the Regulations on the Public Control Council, the rights of the said Council, which are not provided for by law (Article 31, Paragraph three, Clause 4).

NABU “is a state law enforcement body, which is entrusted with the prevention, detection, suppression, investigation and disclosure of corruption offenses attributed to its competence, as well as preventing the commission of new ones in accordance with Article 1 of the Law. The task of the National Bureau is to counteract criminal corruption offenses committed by senior officials authorized to perform the functions of the state or local government and constitute a threat to national security”.

The provision of state security and protection of the state border of Ukraine is entrusted to the appropriate military formations and law enforcement agencies of the state whose organization and procedure are determined by law” according to part three of Article 17 of the Constitution of Ukraine.

Part two of Article 6 of the Law specifies the requirements for a candidate for the position of Director of the NABU. Among the stipulated requirements, “the ability to carry out official duties with its business and moral qualities, educational and professional level” does not meet the requirements of the quality of laws in the context of the rule of law principle (Article 8 of the Constitution of Ukraine), because the legal uncertainty of legislative norms leads to their arbitrary interpretation, both by state authorities and by other entities. The above does not also ensure the proper fulfillment of the requirements of Article 19 of the Constitution of Ukraine on the obligation of public authorities to act only on the basis of, within the powers and in the manner provided for by the Constitution and laws of Ukraine (Decision of the Constitutional Court of Ukraine of September 22, 2005 No. 5, of September 30, 2010 No. 20, of December 22, 2010 No. 23).

The analysis of the text of the Law gives grounds to assert that the main role of the fighter with corruption is assigned to the NABU. This can be seen both from the status of this body, and from its authority and worthy remuneration of employees of the NABU.

However, in our opinion, this does not take into account the provisions of Article 11 of the UN Convention against Corruption, according to which the judiciary, as an independent branch of state power, must play a decisive role in the fight against corruption.

Analyzing the Law of Ukraine “On the State Bureau of Investigation” adopted by the Verkhovna Rada of Ukraine, the specialists of the Institute of Law and Society came to the conclusion that it was partially inconsistent with the Basic Law of Ukraine.

Article 1 of the law defines the SBI as the central executive body that carries out law enforcement activities with the aim of preventing, detecting, suppressing and uncovering crimes within its competence. At the same time, it is stipulated that the SBI is a body with a special status in accordance with the second paragraph of the first part of Article 4 of the Law.

However, it should be noted that state bodies that have a special status are bodies that are not referred to any of the "branches" of unified state power (legislative, executive or judicial power) in accordance with the Constitution. These public authorities are currently the prosecutor's office, the Security Service of Ukraine, the Central Election Commission, the National Council for Television and Radio Broadcasting and the like. Their special status is displayed primarily in the order of forming the relevant state bodies and the nature of their interrelations with others, in particular, the highest state bodies (the Verkhovna Rada of Ukraine, the President of Ukraine and the Cabinet of Ministers of Ukraine). At the same time, the Constitution of Ukraine, as is well known, also does not provide for the existence in the state mechanism (apparatus) of state bodies of executive power with a special status that would carry out corresponding functions outside the system of executive bodies.

Article 11 of the Law determines the procedure for appointing a director of the SBI and his deputies to posts by holding a tender. The Tender Committee provides that the Director of the State Bureau of Investigation is appointed to the post by the President of Ukraine on the proposal of the Prime Minister of Ukraine in accordance with the submission of the tender commission (hereinafter - the Tender Committee) to the position of the Director of the State Bureau of Investigation

At the same time part three of this article stipulates that the structure of the Tender Committee includes persons identified by the President of Ukraine, the Cabinet of Ministers of Ukraine and the Verkhovna Rada of Ukraine on the proposal of the Committee of the Verkhovna Rada of Ukraine, whose subject matter is the organization and activities of the preliminary investigation bodies.

The Law of Ukraine “On the Prevention of Corruption” provides for the creation of a new body - the National Agency for the Prevention of Corruption, which also contradicts the Constitution of Ukraine, because the President of Ukraine accepts participation in the formation of the competitive commission that forms the NAPC, which is not provided for by Art. 106 of the Constitution of Ukraine.

Part 3 of Article 5 of the Law stipulates that the members of the National Agency are appointed by the Cabinet of Ministers of Ukraine for a period of four years based on the results of the competition. The same person cannot hold this position for more than two consecutive terms.

Part 4 of Article 5 of the Law provides that the composition of the competition commission includes:

1) a person determined by the Verkhovna Rada of Ukraine on the proposal of the Verkhovna Rada Committee of Ukraine, whose subject is the issues of combating organized crime and corruption;

2) a person determined by the President of Ukraine;

3) a person determined by the Cabinet of Ministers of Ukraine;

4) the head of the specially authorized central body of executive power on civil service issues;

5) four persons proposed by public associations with experience in the field of preventing corruption, which are selected in the manner specified in the Regulations on the competition.

Thus, the President of Ukraine and the Verkhovna Rada of Ukraine are assigned powers not provided for by Art. 85, 106 of the Constitution of Ukraine.

The draft Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Concerning the Activities of the General Prosecutor's Office of Ukraine" (registration number 4645 dated May 11, 2016) was put to the vote on May 12, 2016 at the plenary session of the Verkhovna Rada of Ukraine. This law abolished the requirement for a candidate for the post of Prosecutor General of Ukraine to have a higher education and work experience in the field of law or work experience in the legislative and / or law enforcement body for at least five years.

The consideration of this draft law took place with a gross violation of the requirements of the Regulations of the Verkhovna Rada of Ukraine, in particular, Article 107.

A draft law rejected by the Verkhovna Rada or a draft law repeating it in essence cannot be introduced at the current and next extraordinary sessions of the Verkhovna Rada of the relevant convocation pursuant to part 2 of Article 107 of the Rules. The rejected draft law is withdrawn from consideration with an appropriate indication of this in the database of draft laws of the electronic computer network of the website of the Verkhovna Rada.

Draft law No. 4469 of April 19, 2014 “On Amendments to Certain Legislative Acts of Ukraine Concerning the Activities of the General Prosecutor's Office of Ukraine and the State Bureau of Investigation”, which is similar to No. 4645 of May 11, 2016, was rejected because it did not get the majority of votes from the Verkhovna Rada Ukraine.

The electronic protocol of the plenary session of May 10, 2016 states that "the decision is not taken" in violation of the requirements of Article 107 of the Rules. The registration of the rejection of the draft law No. 4469 is absent.

Actually, draft law No. 4469 is rejected on the basis of the results of voting, therefore, draft law No. 4645 repeating it in essence cannot be considered at the current and subsequent extraordinary sessions of the Verkhovna Rada of the relevant convocation.

Thus, this Law can be declared unconstitutional in full or in a separate part by decision of the Constitutional Court of Ukraine, as a result of a violation of the procedure for its consideration, adoption or entry into force in accordance with Article 152 of the Constitution of Ukraine.

Experts of the Institute believe that the conduct of pre-trial investigation by unauthorized bodies in resonant cases, such as the case of Viktor Yanukovych. threaten further negative conclusions regarding Ukraine through the recognition of violations in the procedure for collecting evidence for their inadmissibility due to the fact that the investigation was conducted by unauthorized bodies.

The position of the Constitutional Court of Ukraine is unambiguous (Decision in case No. 1-31/2011 of 20.10.2011): analysis of the provision of part three of Article 62 of the Constitution of Ukraine “the charge cannot be based on evidence obtained illegally”, gives grounds for the conclusion that the charge in the commission of a crime cannot be justified by factual data obtained by illegal means, in particular, with violation of the procedure established by law, means, sources of obtaining actual data; by not an authorized person and the like.

December 7, 2017 The Verkhovna Rada of Ukraine in unconstitutional way gave powers to the President of Ukraine that are not provided for by the Constitution of Ukraine, amending the Law of Ukraine “On the National Commission Implementing State Regulation in the Sphere of Energy and Public Utilities” on granting powers to the President of Ukraine to ensure sustainable activities of the National Commission implementing state regulation in the energy and utilities sectors.

This Law granted the President of Ukraine the authority to nominate several members of the regulator for a short period until the appointment of new members of the regulator based on the results of an open competitive selection, that does not comply with Article 106 of the Constitution of Ukraine and a number of decisions of the Constitutional Court of Ukraine.

In order to eliminate threats to national security, ensure the implementation of the constitutional order established by the Basic Law in the sphere of ensuring the rule of law and legal certainty, according to which the Constitution has the highest legal force, and laws and other regulatory legal acts are adopted on the basis of the Constitution of Ukraine and must correspond to it, the specialists of the Institute of Law and Society came to conclusions about:

1. The non-conformity to the Constitution of Ukraine (unconstitutionality) of certain provisions of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” No. 1698-VII, of the Law of Ukraine “On the State Bureau of Investigation” No. 794-VIII, of the Law of Ukraine “On the Prevention of Corruption” No. 1700-VII, of the Law of Ukraine “On Amending Certain Legislative Acts of Ukraine Concerning the Activities of the General Prosecutor's Office of Ukraine” (registration number 4645 of 11.05.2016), of the Law of Ukraine “On the National Commission Executing State Regulation in the Sphere of Energy and Public Utilities” 2237-VIII.

 

Our conclusions and proposals are based not only on our views and understanding of the problem, but also on studying and taking into account the opinions of the wide Ukrainian public, which are distributed in the mass media.

We are ready for cooperation and hope for an appropriate response to the appeal.

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