Decriminalizing Illegal Enrichment: Politics or Rule of Law?

Abstract

Corruption crimes pose a great public threat and actually encroach the normal functioning of various spheres of life. Corruption crimes are a major problem that needs to be addressed at the legislative level. Unfortunately, the issue of composing some provisions of the Criminal Code of Ukraine has led to the exclusion of the provision on illegal enrichment from among criminal acts. This decision was made by the Constitutional Court of Ukraine by deeming Article 368-2 of the Criminal Code of Ukraine "Illegal enrichment" unconstitutional.
 Fifty-nine National Deputies submitted their appeal to the Constitutional Court of Ukraine to determine whether Article 368-2 of the Criminal Code of Ukraine was in conformity with the Constitution of Ukraine. The Constitutional Court of Ukraine therefore began to examine the matter and reached a decision. The decision of the Constitutional Court of Ukraine established that Article 368-2 of the Criminal Code of Ukraine was not in conformity with the Constitution of Ukraine. In its decision, the Constitutional Court of Ukraine emphasized that countering corruption should be carried out by legal means only, in compliance with the constitutional principles and with the provisions of legislation adopted in accordance with the Constitution of Ukraine.
 This decision was not adopted unanimously, since some judges took a completely different position in the matter. Such disagreement resulted in some individual and dissenting opinions of the judges regarding the decision of the Constitutional Court of Ukraine. The individual opinions were expressed by the following judges: Viktor Kolisnyk, Stanislav Shevchuk, Ihor Slidenko, Oleh Pervomaiskyi, Vasyl’ Lemak, Viktor Gorodovenko. Judge Serhiy Golovatyi expressed a dissenting opinion as he is convinced that his colleagues' position on decriminalization of Article 368-2 of the Criminal Code of Ukraine is erroneous.
 The decision of the Constitutional Court of Ukraine on deeming Article 368-2 of the Criminal Code of Ukraine "Illegal enrichment" unconstitutional was not reflected in the clear position of the judges reaching it. That is why the judges expressed the individual opinions and the dissenting opinion.
 Meanwhile, the adopted Draft Law № 1031 “On Amendments to Certain Legislative Acts of Ukraine on Confiscation of Illegal Assets of Persons Authorized Serving for State or for Local Self-Government and on Punishment for Acquiring Such Assets” proposes to reinstate criminal liability for illegal enrichment, taking into consideration the position set forth in the decision of the Constitutional Court of Ukraine.