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The experts recommended that the article on criminal liability for inaccurate declaration, annulled by the Constitutional Court of Ukraine, be reinstated.
photo UNIAN, Andrey Kravchenko
The Venice Commission has issued an urgent joint opinion on the legislative status of anti-corruption mechanisms in accordance with the decision of the Constitutional Court of Ukraine.
In particular, the Venice Commission (CV) emphasizes that the fight against corruption is an important element of a state governed by the rule of law, but respect for the Constitution and constitutional justice are also important, writes zn.ua.
According to the VK, the Verkhovna Rada and the executive branch must respect the role of the Constitutional Court as guardian of the Constitution and must abide by its decisions.
Read alsoRada returned criminal responsibility for inaccurate statement (video)
In turn, the Constitutional Court, like any other institution and court of the State, on the one hand, deserves institutional respect, but, on the other, it must respect its own procedures and, in the interests of constitutional stability and legal certainty, it must take decisions that generally correspond to world jurisprudence. More importantly, the constitutional court must make decisions only within the parameters of its legal powers and jurisdiction, “concluded VK.
The Venice Commission recognizes that the CCU’s October 27 decision lacks a clear reasoning, does not have a solid foundation in international law “and may have been clouded by a serious procedural error: the unresolved problem of the conflict of interests of some judges “.
“This is regrettable not only because of the immediate negative consequences of this decision on the fight against corruption in Ukraine, but also because such decisions undermine public confidence in constitutional justice in general,” stressed the Venice Commission.
However, the VK believes that the constitutional role of the Constitutional Court must be respected, and the Verkhovna Rada must implement the decision, preserving public interests, such as the fight against corruption, including in the judicial system.
“In particular, it is important to maintain the obligation of public officials (including ordinary court judges and the Constitutional Court) to present financial statements in order to have an effective mechanism to verify such statements, and establish the sanctions in the law suitable for these public officials, including judges and prosecutors who submit false data or do not submit statements at all “, – says the conclusion.
In this context, the Venice Commission invites the Verkhovna Rada to consider the following decisions:
- With respect to Article 366-1 of the Penal Code, which was declared void by the Constitutional Court, criminal responsibility for knowingly / not filing a false statement should be restored, but the law may specify in more detail the sanctions corresponding to the degree of criminal responsibility, maintaining, for example, the prison sentence. for cases above a certain threshold and in the case of such actions with intent;
- Regarding the powers of the National Agency for the Prevention of Corruption (NAPC) to verify statements, all its powers in relation to public officials, except judges, can be restored, since they are not influenced by the arguments of the Constitutional Court in its decision;
- Regarding the powers of the NACP in relation to judges, additional safeguards can be provided, namely, introduced in law to protect against possible abuse:
- the independence of the NACP in practice and public control over its activities should be improved in accordance with GRECO’s recommendations;
- some of the investigative powers of the NAPC can be formulated with greater precision and in a narrower sense, or a judge can assign special exceptions and procedural guarantees in this regard;
- To protect judges from potential abuse by the NACC, the law may provide for oversight of the NABU’s activities against judges, either in the form of a grievance mechanism or in the form of regular reports from the NACC to the corresponding judicial authority.
Read alsoIt is necessary to improve the Law on restitution of liability for false statements – EU
Constitutional crisis in Ukraine
On October 27, the Constitutional Court, at the proposal of 47 People’s deputies, adopted a decision by which it repealed article 366-1 of the Penal Code, which provides for liability for false statements.
The Constitutional Court also recognized the provisions of the laws on the verification of electronic statements of officials as unconstitutional and abolished the powers of the NACC to verify statements and identify conflicts of interest.
On November 25, President Volodymyr Zelenskyy appealed to the Venice Commission with a request for an expedited procedure to issue an opinion on the status of Ukraine’s anti-corruption legislation following the decision of the Constitutional Court.
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