The Constitutional Court destroyed the asset declaration system: analysis of the decision

Читати українською

Today, the Constitutional Court (CC) published the text of its decision regarding the constitutionality of the electronic declaration system. What exactly the CC ruled unconstitutional and what consequences such a decision will have we try to explain in the article below.

Instead of the introduction

On 22 pages, the CC reflected on the difficult faith of the judiciary, its independence and why the judiciary should not be influenced in any way. You should know that now if you stand on the feet of a judge in the bus, you will unconstitutionally influence the judiciary and jeopardize its independence. This could be funny unless the Constitutional Court (CC) completely cancelled the e-declaration system. For everyone and not only for judges. Whence, any government official, may not declare any assets and even if he/she does, nobody will verify the information and people will not be aware of it. 

What is unconstitutional now? 
  • the CC ruled that provisions of the Law on “Prevention of corruption”, which granted the National Agency on Prevention of Corruption (NAPC) with authority to gather, store and publish the electronic declarations of government officials and monitor their lifestyle are unconstitutional;
  • open access to the register of e-declarations; 
  • criminal liability for providing false information in asset declarations, imposed by the Article 366-1 of the Criminal Code of Ukraine is unconstitutional as well. 

What arguments were provided by the CC? 
  • the judiciary should be independent and any influence of the political forces or other government bodies on it is unconstitutional;  
  • verification of the declarations and monitoring of the lifestyle of judges must be conducted by the judicial governance bodies. If the verification is conducted by the NAPC, it controls the judiciary; 
  • criminal liability for providing false information in asset declarations is disproportional. 

Why do the arguments of the CC not bear up any scrutiny? 
  • The CC on 20 pages of its decision, provides arguments on why the independence of the judiciary is extremely important and that (any influence” (sic!) of the executive or legislative branches of power contradicts the Constitution and the principle of checks and balances;
  • however, the CC forgot that checks and balances mean that every branch of power mutually influences and balances each other in order to avoid imbalance; 
  • the independence of the judiciary is one of the key constitutional principles. However, the essence of this principle is based on the right of judges to make decisions on the organization and enforcing justice. In other words, neither the Parliament nor the Cabinet intervenes in the process of appointment or dismissal of judges, but they do it by themselves through the judicial governance bodies; 
  • however, the CC, in its decision, carries this principle to absurdity as it states that any influence on the judiciary is unconstitutional. However, this statement does not make any sense as both executive and legislative branches of power constantly influence the judiciary as they all are the parts of the system of checks and balances. Given the logic of the CC, the Parliament if adopting any legislation on the judiciary or allocating funds to support the work of judges unlawfully influences the independence of the judiciary. Therefore, the judiciary should not only have its independent system of verification of the information in asset declarations and the monitoring of the lifestyle of judges (as the CC stated) but also have the independent legislative and budgetary system; 
  • the Constitution prohibits “any influence on a judge” but not the judiciary as a whole. This provision of the Constitution states that the particular judges when hearing a particular case, must be independent and abstain of any prejudice. In this cases, the CC made a mistake; 
  • the principle of independence of the judiciary also implies its accountability to society. If the mechanisms for ensuring such accountability are absent, the judicial community distances itself from the society and stimulates judicial corporatism. This statement was sounded by the Venice Commission in its opinions multiple times. The e-declarations system, which existed in Ukraine, was that mechanism for ensuring accountability of government officials and judges in particular to the Ukrainian society;
  • when speaking about the independence of the judiciary, the CC has not only made the principle of distribution of powers preposterous but also ignored the context in the judiciary. There hundreds not even dozens of examples of corruption amongst judges, but they and the judicial governance bodies, which the CC mentions in its decision, only report on the attempts to pressure them; 
  • despite that the decision of the CC is laid out on 22 pages, the CC cancelled multiple provisions of the law including the access to e-declarations register narrowed down its arguments on the reasons of the unconstitutionality of the provisions, except one to the few general phrases that “…implementation of other provisions without this provision is impossible”;
  • similar arguments, the CC also provided regarding the unconstitutionality of Article 366-1 of the Criminal Code and the criminal liability for providing false information in asset declarations. The CC stated that this punishment is disproportional and does not correlate with the harm, caused by providing false information. However, the CC explained neither the harm of providing false information, nor its negative consequences, nor provided arguments on what should be considered as harm so that the criminal liability would be proportional.

What consequences will this decision have? 
The decision of the CC will have a devastating impact on the whole anti-corruption system in Ukraine. The NAPC already closed the access to the register of electronic declarations. It means that nobody will be able to see what was declared by the public official. The system of electronic declarations was one of the key conditions for establishing a visa-free regime with the EU.

Therefore, the decision of the CC will have a dramatic impact on the bilateral relations with the EU and the IMF. Providing further financial support from these international stakeholders now seem quite unlikely. 

What should be done next? 
Now it is very important to demand from the Parliament the restoration of the legislation on the e-declarations, establishment of the new procedure for selecting the CC judges to ensure their integrity and professionalism as it laid out in the Judicial Reform Roadmap and to liquidate the
District Administrative Court of Kyiv (DACK), whose president Pavlo Vovk
apparently controls the CC. PS: it is very unfortunate to lose the visa-free regime. Even though now it is hard to travel anywhere, it was good to have that possibility.