Already not caught — not a thief forever. The passion of illicit enrichment

Уже не пойман — навсегда не вор. Страсти по незаконному обогащению

For the entire period of operation of the new anti-corruption bodies in Ukraine was opened 106 criminal proceedings under article about illegal enrichment

The end of the fight against corruption, impunity, Beavis Schengen canceled, the IMF will not give money in such a loud statement was not lacking after the controversial constitutional court decision.

 

The decision was resonant, because they were declared unconstitutional article of the Criminal code on illicit enrichment of officials, writes Valery Litvinski in No. 5 of the Journal Reporter.

The Minister of infrastructure Vladimir Omelian, a former head of State fiscal service Miroslav Prodan, mayor of Odessa Gennady Trukhanov, the first Deputy head of the SBU Paul Demchina, about 30 deputies — all defendants in criminal cases of illicit enrichment. And all of them are now impossible to prosecute, cases are closed without the right to resume them. And all because the constitutional court 26 Feb 14 votes of the 18 declared unconstitutional article No. 368-2 of the Criminal code on liability for illegal enrichment. In fact, now it is extracted from the legislation, and all done on her investigation buried.

Senior civil servants rejoice and open the champagne. Just say: and after the CCU decision no one bothers the anti-corruption bodies and other enforcement agencies to initiate and investigate cases against corrupt officials is in fact such crimes. But not in connection with the discovery of unjustly acquired wealth. And it was “cashed” in the form of immovable and movable property, and financial assets, the income from corruption is easier to detect and prove.

THE ARGUMENTS TO THE COURT

The provision on illicit enrichment appeared in the Ukrainian legislation in 2015 at the request of the West and in the framework of anti-corruption reforms. According to article 368-2 of the Criminal code, illicit enrichment means a purchase of assets for the funds, the legality of the origin of which the public servant can not prove. Literally — “the acquisition of the property assets in a significant amount, the legitimacy of the grounds of acquisition which was not confirmed by evidence”. That is, if you work in the civil service, and bought, for example, real estate or a car that does not match the level of your official income previously done legal savings, law enforcement officers have any questions to this skorobogacha.

The penalty for such a violation from 2 to 10 years imprisonment, depending on the level of the position. It would seem, everything is logical. Yes to all, except the officials who come under attack.

So at the end of 2017, a group of 59 people’s deputies asked the constitutional court to declare unconstitutional article on illicit enrichment. Signed the appeal of the representatives of all parliamentary factions and groups except Samopomich and Batkivschina. The backbone of the signatories — from the faction of the popular front, from 23 deputies. By the way, the NF MP Pavlo Pynzenyk represented the treatment of MPs in the constitutional court. Also among the signatories were 11 deputies from the Bloc of Petro Poroshenko and the Renaissance group, 10 from the Opposition bloc, 3 — from the will of the people, the 1 from the Radical party. And among those who asked the court to cancel the regulation was directly suspected of illegal enrichment by the deputies from the NF Dade Eugene and Maxim Polyakov.

Уже не пойман — навсегда не вор. Страсти по незаконному обогащению

 

According to deputies, the provision for punishment for the alleged illicit enrichment contrary to the principles of presumption of innocence. “Accused of illegal enrichment, the person is deemed guilty until you prove your innocence, citing evidence that the assets of a significant size were acquired legally,” — explained his position the parliamentarians in the constitutional appeal. After all, not the man himself should prove his innocence but rather the prosecution must prove that the man is guilty, insist MPs. There are many other arguments against the article 368-2 of the Criminal code. However the same query on the unconstitutionality of the Law On counteraction to legalization of proceeds of crime… for some reason, was not. Although it all exactly the same: the owner of the assets and funds in respect of which the suspected wrong, have to prove their respectable origin. But not the ones who somehow thinks that kind of money “dirty”.

IS IT REALLY SO WRONG CONSTITUTIONAL COURT?

According to KSU, it is impossible to oblige the official to prove the legality of the acquisition assets and not to bring him to criminal liability only because of the lack of evidence of the legality of the purchase of any property or assets.

Moreover, the solution of the COP stated that the current wording of article 368-2 of the Criminal code “makes it possible to attract to criminal liability for unlawful enrichment of a person who legally acquired the assets in the property, but has no confirmation of legality of the grounds for such acquisition”. But this is nonsense. How can something essential to acquire legally, but not be able to explain, for what money it was purchased?

The main consequence of the decision of the SIC is that all the oddities available in the electronic declarations cannot be considered as a reason for prosecution. That is, e-Declaration of civil servants, elegant feint completely neutered as an anti-corruption tool.

THERE ARE OBJECTIONS

Although the letter of the law the decision of the constitutional court is final and its legal argument was immediately smashed to smithereens domestic experts and foreign experts. “The decision of the court is very post-Soviet subject, when genetically Western values like the rule of law, are used with a purpose that is contrary to their essence,” — said the lawyer Dmitry Vovk.

First, the ambiguity of the wording of the article on illicit enrichment. The judge of KSU Serhiy Holovaty, who did not support the decision of the court and presented to it a separate opinion, stresses that the wording of the article on illicit enrichment is clearly seen: the criminal liability is provided only when it is proved that the increase in assets in significant size could not happen with the use of legitimate income. Only after checking all the possible ways of acquisition of assets confirmed that the accused could not receive a significant amount of income from their activities, not prohibited by law. Herewith the constitutional court in its decision did not specify what exactly is the ambiguity of the wording of the article on illicit enrichment.

Second, the violation of presumption of innocence. The wording of the article gives no reason to assume that the accused must prove their innocence, say lawyers. It is the prosecution should collect all the evidence confirming the lack of legitimate sources of acquisition of assets. “37 industries (according to the article on illicit enrichment) is closed precisely because the presumption of innocence was applied by prosecutors and detectives. So I claim that there was no burden of proof on the defendants in the cases,” — said the head of the Specialized anti-corruption prosecutors Nazar Golodnitsky.

Thirdly, the requirement to testify against himself. The article on illicit enrichment does not oblige the defendant to provide any explanation or evidence. The accused is given the right but not the obligation, to provide the court with evidence to rebut the charges. It’s still in his best interest. And no one but he or his entourage may not know about the existence of such evidence.

You can argue long. The main conclusions, in fact, already made in the new draft law on liability for illicit enrichment, which has already submitted to the Parliament.

Уже не пойман — навсегда не вор. Страсти по незаконному обогащению

 

THE EFFECTS ARE IMPRESSIVE

For the entire period of operation of the new anti-corruption bodies in Ukraine was opened 106 criminal proceedings under article about illegal enrichment. 65 production yet investigated, 37 closed, 4 — is directed to court with indictments. Now all these 65 cases, which continued to engage NABOO, also closed — some of them mentioned in the infographic. According to the Bureau, the total volume of abuse closed cases exceeds half a billion hryvnia.

The resumption of the investigation of all these cases on illicit enrichment in case of return of the relevant article of the criminal code is impossible, because the law is not retroactive.

The national Agency for prevention of corruption there is no need to complete 500 has already begun audits of electronic declarations of officials — without the article on illicit enrichment is meaningless.

That is, in fact, the domestic anti-corruption bodies, which were launched with so much difficulty, took one of the key tools. And civil servants received not even an Amnesty and a pardon on an already flawed. The idea of electronic declaring of incomes of officials, which the society welcomed, has lost its meaning. An official can declare anything you want and enjoy impunity — the legality of the acquisition of assets, no one will check.

Lawyers predict that the returns for the year 2018 we will see the incredible condition of civil servants. “Officials zadeklarowa everything, just to space things out because there is no incentive, there is no responsibility for reporting… Illicit enrichment is a nightmare officials and the cancellation they got rid of him,” — said the lawyer of the Center of counteraction of corruption Anastasia Krasnosel’skaya.

I agree with this statement and one of the developers of anti-corruption legislation, including the article on illicit enrichment, a former member of NACP Ruslan Ryaboshapko. In his opinion, and now officials can legalize any illegal income even in advance. “The essence of this decision in the fact that everything that was illegally acquired in 2015, now pardoned. Such a kind of Amnesty for criminal capital…” says Ryaboshapko in conversation with the Correspondent.

Yes, NABOO remains article 366-1 of the Criminal code, which provides for liability for providing inaccurate information in electronic declarations. However, unlike the expired article on illicit enrichment, which officials could punish and 10 years of imprisonment, the sanction of article 366-1 provides for a fine or a maximum two years in prison.

Moreover, this problem because of the decision of the COP does not end there. The introduction of criminal liability for illicit enrichment was one of the demands of Western partners of Ukraine. In particular, it is contained in the action Plan on visa liberalization with the EU, the Memorandum on cooperation with the IMF and agreements on lending with the world Bank. And even in the United Nations Convention against corruption, which Ukraine ratified in 2006.

According to the IMF rules, the rollback in the implementation of commitments can create problems in obtaining the next tranche. And this year, when the cooperation with international financial institutions to countries are particularly important — coming record payment of foreign debts. Possible problems with the Schengen bezveza is generally reset one of the key achievements over the past five years. The Ministry of foreign Affairs of Ukraine has already managed to appease the West is not going to punish Ukraine for the decision of the COP, but the risks are serious. The world Bank, US, EU and G7 has already made a statement that criminal liability for illicit enrichment should be resumed and to find a way to restart a closed business. Only if there is a way to do this?

WHERE’S THE EXIT?

The lawyers of the Center of counteraction of corruption believe that, in its decision the constitutional court just declared unconstitutional the wording of article of the Criminal code on illicit enrichment of officials, and in principle completely exclude the punishability of the act in Ukraine. Now, no new article on illicit enrichment will not be able to operate in the state, because at any moment the investigation may be appealed in court.

In fact, the COP is not so categorical. Head of constitutional court Stanislav Shevchuk, believes that the court has repealed the provision on illicit enrichment as such and abolished the idea of bringing to responsibility for such actions. In his opinion, need to re-introduce the provision on illicit enrichment in the laws and correct her to write. In the NACP, for example, also believe that the article can be restored in the Criminal code.

However, this issue has turned into an element of struggle in the election campaign for the presidential election. The Parliament has already managed to register as many as six draft laws on the introduction of criminal liability of officials for illegal enrichment. But the problem is that the Parliament is to consider them not in a hurry. For example, offer the incumbent a few attempts and failed to even include in the agenda of the session. And US Ambassador to Ukraine, Marie Yovanovitch stressed that we should “adopt, not simply to offer new and better amendment to the criminal code on illicit enrichment.”

It is unlikely that the current Parliament for six months prior to elections to endorse a coherent format criminal liability for illegal enrichment. So that illicit enrichment is likely to understand the new Parliament. With reform of the constitutional court, which, in fact, never took place. Formally from September 2018, the judges in the COP should be selected on the basis of the competition. But, first, 11 of the 14 judges who voted for the controversial decision on illicit enrichment have been chosen under the old rules. And, secondly, the new competition, the activists were also not considered transparent.

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