{"id":770984,"date":"2019-03-14T13:42:51","date_gmt":"2019-03-14T11:42:51","guid":{"rendered":""},"modified":"2019-03-14T13:46:10","modified_gmt":"2019-03-14T11:46:10","slug":"konstytutsijnyj-sud-vyznav-nekonstytutsijnoyu-stattyu-kryminalnogo-kodeksu-pro-nezakonne-zbagachennya","status":"publish","type":"post","link":"https:\/\/new.eba.com.ua\/en\/konstytutsijnyj-sud-vyznav-nekonstytutsijnoyu-stattyu-kryminalnogo-kodeksu-pro-nezakonne-zbagachennya\/","title":{"rendered":"Constitutional Court of Ukraine strikes down law criminalizing illicit enrichment"},"content":{"rendered":"\n\n\n\n
\"\"<\/td>\n\"\"<\/td>\n<\/tr>\n
Olga Vorozhbyt<\/strong>, Partner, Head of Litigation & Regulatory DLA Piper in Ukraine<\/td>\nOleksii Gerasymchuk<\/strong>, Associate\u00a0DLA Piper in Ukraine<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

On 26 February 2019, the Constitutional Court of Ukraine held\u00a0Article 368-2\u00a0<\/strong>of the Criminal Code to be\u00a0<\/strong>inconsistent\u00a0<\/strong>with the Constitution of Ukraine. The article in question criminalized illicit enrichment and made it punishable by imprisonment and removal of the right to perform certain functions related to the exercise of public service if found guilty.<\/p>\n

According to the provisions that have been struck down, public officials of any level were obligated to provide explanation and evidence of the origin of any obtained \u201cassets of significant value<\/strong>,\u201d defined as \u201cmoney or any other property, as well as benefits obtained from their use,\u201d in excess of UAH 960,500 (equivalent of USD 36,400) as of 2019. Should a public official fail to prove the legal origin of his or her assets or income, such an official would be subject to prosecution.<\/p>\n

The Constitutional Court of Ukraine held that such provisions of the Criminal Code were \u201cunconstitutional<\/strong>\u201d and contradicted the\u00a0principle of<\/strong> presumption of innocence<\/strong>, as in criminal proceedings it is for the prosecution to prove that a person is guilty.<\/p>\n

The immediate consequences of the Constitutional Court\u2019s decision is that Article 368-2 of the Criminal Code becomes\u00a0ineffective<\/strong>. Criminal proceedings initiated so far in Ukraine in cases of illicit enrichment may now have to be dismissed, with ongoing investigations terminated. Article 368-2 was added to the Criminal Code as part of the anti-corruption reform in Ukraine, which is why it being struck down has raised so many concerns.<\/p>\n

At the same time, two days after the Constitutional Court\u2019s controversial decision, President Poroshenko proposed new wording<\/strong>\u00a0of article in order to prevent any possibility of illicit enrichment by public officials.<\/p>\n

\u00a0According to the newly proposed article, public officials no longer have the obligation<\/strong> to prove the legal origin of their assets, so the burden of proof shifts to law enforcement agencies. At the same time, public officials will not be liable under this article if the assets of significant value were obtained through malfeasance (misuse of authority). Liability for malfeasance is regulated by another provision of the Criminal Code.<\/p>\n

However, should the Ukrainian Parliament adopt the proposed article, it will not have a retroactive effect<\/strong>, meaning that past acts of illicit enrichment will go unpunished.<\/p>\n

The draft law is now under review by Parliament\u2019s committees. If the committees submit no further comments, Parliament is likely to consider the\u00a0law proposed by the President during the upcoming plenary session set for 12-15 March 2019.<\/p>\n","protected":false},"excerpt":{"rendered":"

Olga Vorozhbyt, Partner, Head of Litigation & Regulatory DLA Piper in Ukraine Oleksii Gerasymchuk, Associate\u00a0DLA Piper in Ukraine On 26 February 2019, the Constitutional Court of Ukraine held\u00a0Article 368-2\u00a0of the Criminal Code to be\u00a0inconsistent\u00a0with the Constitution of Ukraine. The article in question criminalized illicit enrichment and made it punishable by imprisonment and removal of the […]<\/p>\n","protected":false},"author":4489,"featured_media":169587,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[15576,15575],"tags":[],"class_list":["post-770984","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-and-articles-en","category-news-and-articles-from-companies-en","company-16622"],"_links":{"self":[{"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/posts\/770984","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/users\/4489"}],"replies":[{"embeddable":true,"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/comments?post=770984"}],"version-history":[{"count":0,"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/posts\/770984\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/media\/169587"}],"wp:attachment":[{"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/media?parent=770984"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/categories?post=770984"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/new.eba.com.ua\/en\/wp-json\/wp\/v2\/tags?post=770984"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}