Weekly analytics for 8 – 14 December 2020

Conclusion of the Venice Commission provides ample opportunities for the restoration of anti-corruption legislation

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Event

At the request of the President of Ukraine, on December 9, the Venice Commission issued its urgent conclusion No. 1012/2020 on overcoming the consequences of the decision of the Constitutional Court of Ukraine (hereinafter – CCU) No.13-r/2020, and on December 11, the Commission approved it at its meeting. The Venice Commission divided the issues addressed by the President of Ukraine into two conclusions: on the state of anti-corruption legislation in the light of the decision of the CCU and on the possible reform of the constitutional judiciary. Conclusion No.1012/2020 is devoted to anti-corruption legislation.

The Venice Commission acknowledged that the CCU’s decision No.13-r/2020 did not contain clear arguments, was not based on the rules of international law, and was probably due to a serious procedural law defect – an unresolved conflict of interest for some judges. At the same time, the Venice Commission believes that the role of the CCU as an institution should be respected and the Verkhovna Rada should implement the decision, interpreting it in the light of national constitutional principles and relevant international standards (paragraphs 73-74 of the Conclusion).

It should be reminded that on October 27, the CCU declared unconstitutional criminal liability for false declarations, as well as a number of key powers of the National Agency for the Prevention of Corruption (hereinafter – NAPC) to verify declarations of public officials. Following the decision of the CCU, the People’s Deputies of Ukraine and the President of Ukraine registered dozens of draft laws in order to overcome the possible negative consequences of the court. Nevertheless, according to the CPLR analysis, none of the proposed solutions was comprehensive.

Contents of the Conclusion of the Venice Commission

In its Conclusion, the Commission analyzed in detail the issues facing the CCU, its arguments and provided recommendations to parliament on possible directions for the implementation of the court decision.

On the declaration of criminal liability for false declaration unconstitutional (Article 366-1 of the Criminal Code)

The Venice Commission stressed that the CCU’s decision was based on two arguments – the disproportionate nature of criminal punishment and the vagueness of the law on criminal liability. Having analyzed these arguments in detail, the Commission declared them unconvincing.

Thus, the Commission drew attention to the fact that the CCU did not explain in its decision which constitutionally protected public or private interest is disproportionately affected by the sanctions provided for in Article 366-1 of the Criminal Code, it simply concluded that criminal liability is disproportionate as such (paragraph 30 of the Conclusion). In this case, the CCU did not substantiate the general assertion that the submission of a false declaration “is not capable of causing significant harm to a natural or legal person, society or the state.” The Commission also emphasized that a court of constitutional jurisdiction had no right to usurp the role of parliament (paragraph 31 of the Conclusion).

As for the argument about the vagueness of the law, the Commission stated that it was impossible to understand from the court’s decision what exactly the CCU sees as the vagueness of the norms on false declaration. According to the Venice Commission, it does not appear that public officials in Ukraine do not know whether they should file declarations. Terms such as “knowingly inaccurate information” or “intentional failure to file a declaration” are also quite clear from the point of view of the Venice Commission (paragraph 33 of the Conclusion).

On the control powers of the NAPC regarding the verification of declarations of public servants (except judges)

The Venice Commission noted that the CCU’s decision to declare the NAPC’s supervisory powers unconstitutional applies to all civil servants, but some motivation was provided only in relation to judges. Thus, the operative part of the CCU decision does not follow from the motivational one (paragraph 44 of the Conclusion). According to the Venice Commission, in situations where there is no or insufficient reasoning, the legislator should rely on general constitutional principles and international standards. In situations where the conclusion is contradictory, common sense should be relied upon (paragraph 42 of the Conclusion).

On the control powers of the NAPC regarding the verification of judges’ declarations

The decision of the CCU contains certain arguments with reference to the relevant international standards, regarding the need to respect the principle of independence of judges. In particular, according to the CCU, the independence of judges is best ensured by the creation of a special institution that protects judges from influence and pressure. The CCU also argues that the fight against corruption should not affect the independence of the judiciary (paragraph 37 of the Conclusion). For the court, the NAPC is an executive body with supervisory powers over both judges of general courts and judges of the CCU, which threatens the principle of independence of the judiciary (paragraph 39 of the Conclusion).

According to the Venice Commission, the CCU’s decision on the NAPC’s supervisory powers to verify judges’ declarations should be interpreted in the light of international and European standards so widely referred to by the court (paragraph 45 of the Conclusion).

After analyzing the problem of possible influence on judges by the “executive body” from the point of view of international standards, the Venice Commission noted that outside office activities the same rules and laws (on property, taxes, traffic rules) apply to judges as to other citizens. The Venice Commission has expressed concern about the rules that separate judges from the general legal regime, as they create risks of corporatism, cronyism and circular bail among judges. There is no convincing justification for establishing a separate system for verifying the financial declarations of judges (paragraph 53 of the Conclusion).

Recommendations of the Venice Commission

Given that the CCU’s motivation is unclear, parliament has a wide discretion in determining how the CCU’s decision can be enforced (paragraph 55 of the Conclusion). In particular, the Commission recommends that Parliament:

1.  restore criminal liability for false declarations with possible details of sanctions that may be imposed. For example, to provide that imprisonment may be applied only to persons who have not declared property in excess of a certain threshold, or to persons who have acted with direct intent;
2.  fully restore the NAPC’s control powers over the verification of declarations of public servants (except judges), as the CCU did not provide arguments on the unconstitutionality of the relevant provisions;
3.  consider possible alternatives to the introduction of additional guarantees of judges’ independence to protect them from possible abuse:

•  strengthen the independence of the NAPC in practice and ensure public control over its activities in accordance with the recommendations of GRECO;
•  formulate more clearly and narrowly some NAPC inspection powers or provide for special exceptions or additional procedural safeguards for judges;
•  protect judges from possible abuse, provide for certain procedures for supervising the activities of the NAPC against judges, for example in the form of a special appeal mechanism or in the form of regular reporting by the NAPC to the relevant judicial authority.

Reaction of state bodies to the Conclusion of the Venice Commission

President of Ukraine

The President of Ukraine praised the conclusion of the Venice Commission and thanked for the quick response to his request. The President also expressed solidarity with the assessment of the decision of the CCU No.13-r/2020 as one that undermines public confidence in constitutional justice in general. The Head of the State expressed gratitude for the clear recommendation of the Venice Commission on the obligation of civil servants, including judges, in particular, judges of the Constitutional Court, to submit financial declarations, as well as on the need to have an effective mechanism for verifying them and providing for appropriate sanctions for those who knowingly submit false data.

CCU

The CCU responded to the Venice Commission’s conclusion with publications on its official website. The court noted that despite the critical remarks on the motivation of the decision, the Venice Commission considered it legitimate and enforceable. The CCU also informed that they accept the critical remarks of the Venice Commission and promise to take them into account in the future.

NAPC

The NAPC emphasized the position of the Venice Commission on the need to maintain imprisonment for the most serious violations of the rules of declaration.

Status of consideration of proposals to overcome the consequences of the decision of the CCU in the Parliament before the Conclusion of the Venice Commission

Draft laws on the restoration of anti-corruption legislation can be divided into two groups: on the restoration of criminal liability for false declarations and on the restoration of the powers of the NAPC.

Regarding the first issue, on December 4, the Verkhovna Rada adopted the Law “On Amendments to Certain Legislative Acts of Ukraine Concerning Establishment of Liability for Declaring Inaccurate Information and Failure to File a Declaration of a Person Authorized to Perform Functions of the State or Local Self-Government”, which was submitted to the President of Ukraine for signature.

According to the adopted law, the parliament returned criminal liability for false declarations, but significantly increased the threshold of declaring false information, after which criminal liability may arise, as well as mitigated the possible punishment.

In fact, if before the decision of the CCU criminal liability for declaring inaccurate information arose in the case of declaring inaccurate information in the amount of more than 250 subsistence minimums for persons of working age, the new law increased this amount to 500. In addition, parliament reduced the sanction under this article. In particular, the maximum penalty for false declaration is provided in the form of 2 years of restraint of liberty (only in case of non-declaration of false information in the amount of more than 4,000 subsistence minimums for persons of working age), while previously criminal punishment in the form of 2 years imprisonment threatened for declaration inaccurate information in the amount of more than 250 subsistence minimums for persons of working age. The parliament also excluded sanctions in the form of restraint of liberty and imprisonment for failure to submit a declaration of a person authorized to perform the functions of the state or local self-government.

As for the restoration of the NAPC’s powers, the relevant law has not been adopted yet, but the relevant committee recommended that the parliament adopt related draft laws No. 4470 and No. 4471. If the relevant draft laws are adopted in the wording proposed by the parliament, the control of the judiciary over the NAPC in terms of verification of judges’ declarations will increase significantly. In particular, the HCJ and the CCU will have the right to approve the procedure for full verification of declarations of judges and judges of the CCU. In addition, these bodies will be able submit to the NAPC mandatory requests for elimination of violations, which contain signs of violation of guarantees of independence of judges, judges of the CCU during the exercise of the NAPC powers.

CPLR recommendations on how to take into account the Conclusion of the Venice Commission

CPLR experts are of the opinion that the conclusion of the Venice Commission opens wide opportunities for parliament to restore anti-corruption legislation.

We believe that the adopted law on the restoration of criminal liability for false declarations should be further finalized, as in the adopted version it allows a person to avoid any adverse consequences for his/herself.  As stated by the CPLR expert Mykola Khavroniuk: “Application of Article 366-1 of the Criminal Code of Ukraine in the previous four years showed that 90% of all persons reported on suspicion of a crime, were released from criminal liability, which means that they did not even pay the minimum fine and were not deprived of the right to hold office, regardless of the scope of “untruths”, stated by them in the declaration (which sometimes reached many millions of UAH). Therefore, it is necessary to create a mechanism for the inevitability of criminal liability. This can be done by completely repealing Articles 45, 47, 48 of the Criminal Code (release from criminal liability due to effective repentance, bail and change of circumstances) or non-extension of these articles to the newly adopted Articles 366-2 and 366-3 of the Criminal Code (in these two cases, the rules on agreements provided for in the CPC of Ukraine will apply to certain persons)”.

The parliament should also take advantage of the recommendations of the Venice Commission and fully restore all NAPC control powers over the verification of civil servants’ declarations.

Regarding the introduction of additional guarantees for the independence of judges, we consider the idea of ​​further implementation of GRECO recommendations on the NAPC’s independence and public accountability of the NAPC, as well as the establishment of a regular mechanism for submitting NAPC reports to verify judges’ declarations to the relevant judicial body. In particular, in accordance with the recommendation of GRECO, the procedure for monitoring the lifestyle of declarants should be adopted and additional measures should be taken to reduce the risks of manual selection of declarations for full verification.

Instead, the introduction of special exceptional or additional procedures for the verification of judges’ declarations, in our opinion, will not help to ensure the principle of accountability of the judiciary, which is undesirable in Ukrainian conditions.