Prevention of Corruption Act is incompatible with the Constitution of Ukraine

48 Members of Parliament of Ukraine have addressed the Constitutional Court with a submission concerning the constitutionality of specific provisions of the Prevention of Corruption Act and a specific article of the Criminal Code of Ukraine.

In their submission, Members of Parliament lay down legal proof of the unconstitutionality of particular provisions of the aforementioned regulatory acts and address the Constitutional Court with a request to make their assessment on the matter.

Members of Parliament of Ukraine emphasize that they are not contesting the obligation to declare their property for the persons authorized to serve as a state or local official. The concept of introducing the mechanism of legal regulation for the ends of combatting and preventing corruption is one of the priority issues for the development of a democratic state.

However, the provision of the Prevention of Corruption Act, the unconstitutionality of which is the subject of the submission to the Constitutional Court, violate the constitutional principles of the rule of law, the legal certainty, the legitimacy, the responsibility of the individual, the non-interference in personal life and non-dissemination of confidential information.

 


 

Emblem of Ukraine

PEOPLE’S DEPUTY OF UKRAINE

04-03/6-857                                                                                                                                                                                                   30 December 2015

 

CONSTITUTIONAL COURT OF UKRAINE

(01033, Kyiv, Zhylyanska str., 14)

Subjects of law for constitutional petition

48 people’s deputies of Ukraine

Authorized on behalf of:

Authorized representatives of the subject of the constitutional appeal on behalf of:

People’s Deputies of Ukraine:

Yurii R. MIROSHNYCHENKO

01008, Ukraine, Kyiv, Hrushevskoho str., 5

E-mail: *protected email* Tel: (044) 255-22-24

Dmytro Y. SHPENOV

01008, Ukraine, Kyiv, Hrushevskoho str., 5

E-mail: *protected email*          тел.: (067) 954-77-36

CONSTITUTIONAL PETITION

for conformity of Constitution of Ukraine (constitutionality) with certain provisions of Paragraph 14 Part 1 of Article 1; certain provisions of Paragraph 3 Part 1 of Article 3; Paragraph 2 Part 1 of Article 12; Paragraph 2 with note 1 Paragraph 3, certain provisions of Paragraph 8, 9, 10, 11 Part 1 of Article 4b; Part 3 of Article 46; Paragraph 2 and 3 Part 1 of Article 47; certain provisions of Part 1 and 3 of Article 50; Article 51; Part 2 of Article 52; Subparagraph 3 Paragraph 3 Part 5 of Final and Transitional provisions of the Law of Ukraine “On Prevention of Corruption” №1700-VI dated 14 October 2014 and Article 366-1 of the Criminal Code of Ukraine

According to Article 147, 150 and 152 of the Constitution of Ukraine, Paragraph 1, Article 13, Articles 15, 38-40, 57, 71, Paragraph 1 Article 82 of the Law of Ukraine “On the Constitutional Court of Ukraine” subject of law for the constitutional petition – 48 people’s deputies Ukraine – appeals to the Constitutional Court of Ukraine with constitutional petition for the compliance of Constitution of Ukraine (constitutionality) with certain provisions of the Law of Ukraine “On Prevention of Corruption” №1700-VI dated 14 October 2014 (published in the newspaper “Voice of Ukraine” № 206 from 25.10.2014, in the newspaper “Governmental Courier” №205 from 05.11.2014, the bulletin “Official Herald of Ukraine” dated 07.11.2014, № 87, p. 156, article 2474, the code of the act 74501/2014, in the magazine “News of Verkhovna Rada of Ukraine” from 05.12.2014 , number 49, p. 3186, article 2056) (hereinafter – the Law).

The subject of constitutional petition appeals to the Constitutional Court of Ukraine in connection with the necessity to verify certain provisions of the law in conformity with the Constitution of Ukraine.

The subject of the constitutional petition does not contest the need of declaration of assets by persons authorized to perform the functions of state or local government. The idea of ​​introducing the mechanisms of legal regulation for combating and preventing corruption is a priority to build a democratic state. However, some provisions of the Law do not meet a number of constitutional principles, including the principle of legal certainty and the rules of legislative technique.

* * *

Pursuant to the preamble the Law defines: “legal and organizational basis of the system of preventing corruption in Ukraine, content and the application of preventive anti-corruption mechanisms, rules to eliminate the consequences of corruption.”.

The subject of the constitutional petition appeals to the Constitutional Court of Ukraine with constitutional petition on the conformity with the Constitution of Ukraine (constitutionality) of the following provisions of the Law:

provision including adult, parents” and provision “other persons who live together bound by joint  household, mutual rights and obligations (other than those persons whose mutual rights and obligations are not of a family character), including persons who live together but are not married;of Paragraph 14 Part 1 of Article 1 of the Law;

provisions of Paragraph 3 Part 1 of Article 3 of the Law according to which “persons who permanently or temporarily hold positions related to the implementation of organizational and administrative or administrative and economic functions or specially authorized to perform such functions in legal entities of private law irrespective of legal form, as well as other persons who are not officials and who perform work or provide services under contract with the enterprise or organization”;

provisions of Paragraph 2 Part 1 of Article 12 of the Law according to which “to have direct access to databases of the state bodies, government bodies of the Autonomous Republic of Crimea, local governments, to use state including government communication systems and communications, networks of special communication and other technical means; “;

Paragraph 2 with Note 1, 3, 8, 9, 10, 11 Part 1 of Article 46 of the Law  the Declaration  must contain information about:

2-1) incomplete construction objects, objects, that are not put into operation or which ownership right is not registered as prescribed by the law, which:

  1. a) belong to the subject of declaration or his/her family members due to the ownership rights in accordance with the Civil Code of Ukraine;
  2. b) located on land plot belonging to the subject of declaration or his/her family members on the right of private ownership, including joint ownership or transferred to them for rent or other purposes based on the right of use, regardless of the legal grounds for the acquisition of such right;
  3. c) completely or partially built from the materials or funds belonging to subject of declaration or his/her family members.

Such information includes:

  1. a) information on the location of the object;
  2. b) information about the owner or user of the land plot on which the construction of the object takes place;
  3. c) if the subject is of a joint ownership, this information must contain data on all joint owners provided for in Paragraph 1 Part 1 of this Article, or the name of the appropriate legal entity with the respective code registered in the United State Register of Legal Entities and Individual Entrepreneurs;

3) valuable movable property whose value exceeds 50 state minimum wages set on 1 January of the accounting year that belongs to the subject of declaration or his/her family members due to the right of private ownership, including joint ownership; or is in his/her possession or use irrespective of the transaction of  which such a right arises. Such information includes:

  1. a) data on the type of property, property characteristics, date of its ownership acquisition, possession or use, property value at the date of its ownership acquisition, possession or use;
  2. b) data on the vehicles and other self-propelled machinery, as well as on their make and model, year of manufacture, identification number (if available). Information about the vehicles and other self-propelled machinery is given regardless of their cost;
  3. c) if the movable property is in joint ownership, the information about all owners shall be stated as provided for in Paragraph 1 Part 1 of this Article, or the name of the appropriate legal entity with the respective code registered in the United State Register of Legal Entities and Individual Entrepreneurs. If movable property is in the possession or use, the information about the owners of such property or the name of the appropriate legal entity with the respective code registered in the United State Register of Legal Entities and Individual Entrepreneurs shall be also stated as specified in Paragraph 1 Part 1 of this article;

4) the available cash assets, including cash, funds deposited in bank accounts, deposits to credit unions and other non-bank financial institutions, funds leased to the third persons, as well as precious (bank) metals assets. Information on financial assets include data on the type, amount and currency of asset and the name and code of the Unified State Register of Enterprises and Organizations of Ukraine of the institution in which the corresponding accounts are opened or in which the relevant contributions are made. Available cash assets (including cash, funds deposited in bank accounts, deposits to credit unions and other non-bank financial institutions, funds leased to third persons) and precious (bank) metals assets which total value does not exceed 50 minimum wages set on 1 January of the accounting year are not subject to declaration.

5) financial liabilities, including credits, loans, liabilities under leasing contracts, the amount paid is in respect of the principal amount of the loan (credit) and interests on the loan (credit), liabilities under insurance contracts and non-governmental pension funds, funds leased to others. Information on financial liabilities include data on the type of liability, its size, currency, information about the person bearing such obligations in accordance with the Part 1 of this article, or  the name of the appropriate legal entity with the respective code registered in the United State Register of Legal Entities and Individual Entrepreneurs and the date of liability. Such information specified only if the amount of the obligation exceeds 50 state minimum wages set on 1 January of the accounting year. If the amount of the obligation does not exceed 50 minimum wages set on 1 January of the accounting year only the total amount of the financial liability is indicated.

If the insurance object of the liability is immovable or movable property the type of property, its location, value and information about the owner of the property according to the Paragraph 1 Part 1 of this Article or the name and code of the appropriate legal entity registered in the United State Register of Legal Entities and Individual Entrepreneurs is stated. If the insurance object of the received liability is guarantee letter information about the guarantee specified in the Paragraph 1 Part 1 of this Article or the name and code of the appropriate legal entity registered in the United State Register of Legal Entities and Individual Entrepreneurs shall be given in the declaration.

6) expenses and all transactions conducted in the accounting period based on which the subject of declaration accrues or terminates the right of ownership, possession or use, including joint ownership of immovable and movable property, non-material and other assets, as well as financial obligations arising from it  which are specified in the Paragraphs 2-9 Part 1 of this Article.

Such information is specified only if the size of corresponding expense amount exceeds 20 minimum wages set on 1 January of the accounting year. In addition to the following information data on the type of transaction, its object and information concerning the name of the counterparty shall be included;

7) position or job that is performed or was performed part-time: data about the position or work (paid or not)  performed under the agreement (contract), the name of the legal entity or individual entrepreneur  where the person works or worked part-time with the indication of  the code of the Unified State Register of Legal Persons and Physical Persons – Entrepreneurs or surname, name and patronymic of the physical person with the indicating of his/her registration number of taxpayer’s registration card;

provisions “available cash assets, including cash” and “money leased to third parties’ of the Paragraph 8,

of the Paragraph 2 with the Note 1 Part 1 of Article 46 of the Law;

of the Paragraph 10 Part 1 of Article 46 of the Law, according to which:

“charges and all transactions committed in the accounting period based on which the subject of declaration accrues or terminates the ownership, possession or use, including joint ownership, of immovable and movable property, non-material and other assets, as well as also appear financial obligations which are specified in the Paragraphs 2-9 Part 1 of this article.

Such information is specified only if the size of corresponding expense amount exceeds 20 minimum wages set on 1 January of the accounting year. In addition to the following information are included data about the type of transaction, its object and information concerning the name of the counterparty”

of the Part 3 Article 46 of the Law, according to which:

“In the declaration is also indicated information about the declaration objects stipulated in Paragraphs 2-8 Part 1 of this article, which are the property of a third party, if the declaration subject or a member of his/her family receives or is entitled to receive income from such an object or may directly or indirectly (through other physical persons or legal persons) to perform the actions concerning this object identical in content with the disposition right. The information provided in this part are not specified in the declaration, if relevant objects belong to the legal person as ownership specified in the Paragraph 5 1 Part 1 of this article, and their main purpose is the use in economic activities of such a legal entity (industrial equipment, special machinery etc.).”

Paragraph 2 and 3 Part 1 Article 47 of the Law, according to which “National Agency provides twenty-four-hour access to the Unified State Register of declarations of persons authorized to perform state functions or local government on the official website of the National Agency.

Access to the Unified State Register of declarations of persons authorized to perform state functions or local government on the official website of the National Agency is provided by the ability to view, copy and print the information, as well as a set of data (electronic document), organized in a format that allows its automatic processing by electronic means (machine-readable) for the purpose of reuse.

provision ” accuracy of assessment of the declared assets” of Paragraphs 1 and 3 of Article 50 of the Law;

Article 51 of the Law, according to which:

“1. National Agency carries out selective monitoring of declaration subjects lifestyle to establish compliance of their standard of life and their and their family members property and obtained incomes in with the declaration of the person authorized to perform state functions or local government, submitted in accordance of this Law.

2. Monitoring of declaration subjects lifestyle is conducted by the National Agency on the basis of information received from the individuals and legal persons, as well as media and other open sources of information, which contains information about the discrepancy in standards of living of declaration subjects declared and their property and incomes.

3. Procedures for monitoring of declaration subjects lifestyle is established by the National Agency.

Lifestyle monitoring is carried out with observance of legislation on protection of personal data and should not provide undue interference with the right to respect for private and family life of a person.

4. The establishment of discrepancy of declaration subject lifestyle with the declared property and income is the basis for a complete verification of its declaration. In case of discrepancies in living standards by National Agency to the declaration subject is given an opportunity to provide a written explanation for this fact within ten working days.

In case of detection after lifestyle monitoring results the signs of corruption offense or offense associated with corruption the National Agency informs the specially authorized subjects combating corruption. “

Paragraph 2 of Article 52 of the Law, according to which:

“In case of significant changes in the property state of declaration subject, namely the receipt of his/her income, the acquisition of property for an amount exceeding 50 minimum wages set on 1 January of the corresponding year, the mentioned subject within ten days of receipt of the income or property purchase must inform the National Agency in writing. This information is submitted to the Unified State Register of declarations of persons authorized to perform state functions or local government, and published on the official website of the National Agency. “.

of the Subparagraph 3 Paragraph 3 of Part 5 of Final and Transitional Provisions of the Law, which is supplemented by:

“3) Criminal Code of Ukraine (Verkhovna Rada of Ukraine, 2001, № 25-26, art. 131)  expanded  with the Article 366-1 as follows:

“Article 366-1. Declaring  false information

Submission of knowingly false information to the declaration of the person authorized to perform state functions or local government, envisaged by the Law of Ukraine “On Prevention of Corruption” or intentional failure of  the subject of declaration  to submit the said declaration is punished by imprisonment for up to two years, with disqualification to hold certain positions or be engaged in certain activities for up to three years.

Note. The declaration subjects are persons who according to the Paragraphs 1 and 2 of Article 45 of the Law of Ukraine “On Prevention of Corruption” are required to submit a declaration of the person authorized to perform state functions or local government “;

Article 366-1 of Criminal Code of Ukraine, according to which:

“Article 366-1. Declaring  false information

Submission of knowingly false information to the declaration of the person authorized to perform state functions or local government, envisaged by the Law of Ukraine “On Prevention of Corruption” or intentional failure of  the subject of declaration  to submit the said declaration is punished by imprisonment for up to two years, with disqualification to hold certain positions or be engaged in certain activities for up to three years.

Note. The declaration subjects are persons who according to the Paragraphs 1 and 2 of Article 45 of the Law of Ukraine “On Prevention of Corruption” are required to submit a declaration of the person authorized to perform state functions or local government “.

***

The provisions of the Law constitutionality of which is the subject of appeal to the Constitutional Court of Ukraine violate the constitutional principles of the rule of law, legal certainty, rule of law, individual responsibility, the prohibition of invasion of privacy and distribution of confidential information;.

Particularly, the disputed provisions of the Law are contrary to:

Constitution of Ukraine, which specifies that in Ukraine the principle of rule of law is recognized and effective; the Constitution of Ukraine has the highest legal force. Laws and regulations are adopted on the basis of the Constitution of Ukraine and have to correspond to it (Article 8); public authorities and local governments and their officials are obliged to act only within their authority and in the manner envisaged by the Constitution and laws of Ukraine (Article 19); All people are free and equal in dignity and rights; human rights and freedoms are inalienable and inviolable (Article 21); everyone has the right to respect for his/her dignity (Article 28); no one could experience the interference in his privacy, family life, except in the cases specified by Constitution of Ukraine; it is forbidden to collect, store, use and disseminate the confidential information about a person without a consent, except in the cases prescribed by the law only in the interests of national security, economic welfare and human rights (Article 32); everyone has the right to possess, use and dispose their property, results of his/her intellectual and creative activity (Article 41); everyone is guaranteed the right to know their rights and duties (Article 57); laws and other normative legal acts have no retroactive force, except the cases where they mitigate or annul the responsibility of a person, no one can bear responsibility for acts that, at the time they were committed, were not deemed by law as an offense (Article 58); legal liability of a person has an individual character (Article 61), constitutional rights and freedoms of a person and citizen may not be restricted except  in the cases specified by the Constitution of Ukraine (Article 64); the Verkhovna Rada of Ukraine as the only legislative body in Ukraine (Article 75) passes the laws that must comply with the Constitution of Ukraine (Article 8); everyone must strictly abide by the Constitution of Ukraine and laws of Ukraine, which does not infringe the rights and freedoms, honor and dignity of others (Article 68); and practice of the Constitutional Court of Ukraine, the judicial practice of the European Court of Human Rights, the provisions of the international legal acts.

* * *

According to the requirements of Article 39 of the Law of Ukraine “On Constitutional Court of Ukraine” we present legal substantiation for assertions concerning the unconstitutionality of the disputed provisions of the Law.

1.1 The legal grounds of statements concerning the constitutionality of provisions “including adults, parents” and “other persons who live together, have a joint household, mutual rights and obligations (other than those mutual rights and obligations which have no family character), including persons who live together but are not married, “Paragraph 14 of Article 1 of the Law; of the provision “persons who permanently or temporarily hold positions related to the performance of organizational and administrative or administrative and economic functions or specially authorized to perform such functions in legal entities of private law, regardless of the legal form as well as other persons who are not officials and who perform work or provide services in accordance with the contract to the enterprise, institution, organization” of Paragraph 4 Part 1 of Article 3, provision “to have direct access to databases of state bodies, governmental bodies of the Autonomous Republic of Crimea, local governments, to use the state, including the government, connection systems and communications, special communication networks and other technical means;” of the Paragraph 2 Part 1 of Article 12, of the points 2, 2 with the Note, 3, 4, 8, of the provision “available cash assets, including cash” and “funds leased to third parties” of the points 8, 9, 10, 11 of Part 1 Article 46, Paragraph 2 and 3 of Part 1 of Article 47” provision “accuracy of assessment of the declared assets” of Paragraph 1 and 3 of Article 50, Article 51, Paragraph 2 of Article 52 because of their inconsistency with Articles 8,21,32, 61,64 of the Constitution of Ukraine

The disputed provisions of the Law  provide that persons authorized to perform state functions or local government, are required to submit  by filling out the declaration on the official website of the National Agency by April,1 for the last year annually. To this declaration is submitted information about the financial position of a declaration subject, family members of third parties (in particular, data on immovable objects, construction in progress, valuable movables, securities, other options, non-material assets, beneficial ownership, the property of a third party, if the subject of the declaration or family member receives or is entitled to receive income from such a facility or can directly or indirectly (through other persons or entities) to act on this object actions that are identical in content with the right of its disposition). In this case, family members include adult children, parents, regardless of whether they live together with the declaration subject and persons who live together but are not married (i.e. the daughter-in-law/son-in-law, mother-in-law/father-in-law, brother/sister, children from previous marriages of wife/husband etc.).

In the system of fundamental rights guaranteed by the Constitution of Ukraine, the basic is a principle of the rule of law, the observance of which must be a priority in the work of the Verkhovna Rada of Ukraine as a single legislative body. It was repeatedly noted in the decisions of the Constitutional Court of Ukraine: “The rule of law is the supremacy of the law in society. The rule of law requires from the state to  embody it in law-making and law enforcement activities, including the laws that by its content must above all represent the ideas of social justice, freedom, equality, etc. “(Paragraphs 1, 2 Sub-paragraph 4.1 of Paragraph 4 of the reasoning part of the Decision on 2 November 2004 , № 15-rp/2004 in case of constitutional petition of the Supreme Court of Ukraine on the conformity of Constitution of Ukraine (constitutionality) with the provisions of Article 69 of the Criminal Code of Ukraine (case of the more lenient penalty) and “priority of natural rights should be seen as one of the fundamental principles of the Constitution of Ukraine, according to which the Verkhovna Rada of Ukraine as a legislative body, has adopted legal acts in full compliance with this approach” (conclusion of 29 January 2008 № 2-rp / 2008 in the case of constitutional submission of 52 people’s deputies of Ukraine regarding the conformity to the Constitution of Ukraine (constitutionality) of the Law of Ukraine ”About peculiarities of dismissal of persons who combine deputy mandate with other activities” and constitutional petition of 89 people’s deputies of Ukraine about the official interpretation of the provisions of Paragraph 2 Part 2 of Article 90 of the Constitution of Ukraine, Article 5 of the Law of Ukraine ”About peculiarities of dismissal of individuals who combine the deputy mandate with other activities” (case of release the deputies of Ukraine from other positions in the event of appointment).

Constitution of Ukraine guarantees to every citizen of Ukraine the right to non-interference in his private and family life, except the cases, specified in the Constitution of Ukraine and it is forbidden to  collect, store, use and disseminate confidential information about a person without his/her consent, except in the cases prescribed by law, and only in the interests of national security, economic welfare and human rights (Article 32 of the Constitution of Ukraine); and the constitutional rights and freedoms of a person  and citizen may not be restricted except in the cases provided by the Constitution of Ukraine (Article 64 of the Constitution of Ukraine).

However, a systematic analysis of the disputed provisions of the Law suggests that, contrary to the above mentioned constitutional provisions, according to the disputed provisions of the law it is allowed to collect, store, disseminate information about family members of declaration subject and other third parties; unlawful interference in their personal and family life.

The inadmissibility of interference in the private lives of close persons of declaration subject noted in the declaration in Paragraph 4 and Paragraph 6 part 4.1. The conclusion of the Constitutional Court of Ukraine in the case N 1-27/2010 of 6 October 2010 the constitutional petition of the Supreme Court of Ukraine concerning the Constitution of Ukraine (constitutionality) of the provisions of Laws of Ukraine “On Measures for  Prevention and Combating Corruption”, “On the liability of legal entities for corruption Offences”, “On Amending Certain Legislative Acts of Ukraine Regarding Liability for Corruption Offenses” (a case of corruption offenses and enforcement of anti-corruption laws): “ The list of close persons irrespective of their place of residence and maintenance of common household as well as other persons for conditions of their constant residence with a person who claims to hold the respective positions, and maintenance of common household as defined in the second paragraph of Part 1of  Article 1 of the Law N 1506, enables public authorities to interfere in their personal and family life, without reason to get personal data contrary to these guidelines of Constitution of Ukraine. Furthermore, it should be taken into account  that close persons are not candidates for the mentioned positions, but only indirectly (by family or other relations) are connected with the persons who have a claim to it or hold the mentioned positions. Submitting the information about relatives and other people without their consent by the person who candidates for the respective positions can lead to receipt of false data, so that the person will be responsible under Article 1641 Code of Administrative Offence..

… So, regarding relatives and other persons mentioned in t Paragraph 2 Part 1 of Article 1 of the Law N 1506, a special inspection provided by Paragraphs 2, 3 of Part 2 of Article 9 of the law can not be carried out since it is inconsistent with the provisions of Article 32, Paragraph 1 of Article 64 of the Constitution of Ukraine.“.

According to the official interpretation of the Constitutional Court of Ukraine: information about personal and family life of a person is any information and/or data of non-property relations and material character, circumstances, events, relationships, etc., associated with the person and members of her/his family, except as provided by the laws of information regarding the implementation of a person who occupies a position associated with the functions of the state or local government, official or authority powers. Such personal information is confidential; collection, storage, use and dissemination of confidential information about a person without his consent by the state, local governments, legal  entities and individuals is interference in his/her personal and family life. Such interference is allowed only in cases specified by law, and only in the interests of national security, economic welfare and human rights (paragraph 1 of the resolution part of Constitutional Court of Ukraine conclusion in case N 1-27/2010 of 6 October 2010 for the constitutional petition of the Supreme Court of Ukraine for compliance with the Constitution of Ukraine (constitutionality) of the provisions of Laws of Ukraine “On the Principles of Prevention and Combating Corruption”, “On the Liability of Legal Entities for Corruption Offenses” and “On Amendments to Some Legislative Acts of Ukraine Concerning Liability for Corruption Offenses” (case of corruption offenses and enforcement of anti-corruption laws).

The Constitutional Court noted in its conclusion that “the collection, storage, use and dissemination of confidential information about a person without his/her consent by the state, local governments, individuals or legal entities is an interference in his/her personal and family life. Such interference is allowed only in cases specified by law, and only in the interests of national security, economic welfare and human rights.” (Paragraph 2 of the Part 1 of resolution part of the conclusion of the Constitutional Court of Ukraine in case number 2-rp/2012 from 20 January 2012 for the constitutional petition submitted by Zhashkiv  district council in Cherkasy region concerning the official interpretation of the provisions of the Paragraphs  2,3 of Article 32, Paragraphs  2, 3 of Article 34 of the Constitution of Ukraine.).

Meanwhile paragraph 3.3. of the above mentioned conclusion the Constitutional Court of Ukraine noted that “… the issue concerning confidentiality of information about a person who holds the position, linked to the performance of state functions or local government, and members of his/her family, the Constitutional Court of Ukraine proceeds from the following that the qualification of information on individual is determined as confidential in each specific case.

A systematic analysis of the provisions of the paragraphs 1,2 of Article 24 Paragraph 1 of Article 32 of the Constitution of Ukraine gives grounds for Constitutional Court of Ukraine to believe that the implementation of the right to personal integrity and family life is guaranteed to every person, regardless of gender, political, property, social, linguistic or other characteristics, as well as the status of a public person, including a public servant, state or public figure who plays a role in the political, economic, social, cultural or any other field of state and social life.

Analyzing the issue of dissemination of information about the family life of the person who holds the position associated with the functions of state or local government, the Constitutional Court of Ukraine considers that such information usually concerns not only that person, but other people, including members of his/her family, whom Constitution of Ukraine also guarantees the right to non-interference in their personal and family life, except in cases specified by law. Therefore, the dissemination of information about such individuals – family members –  that may be disclosed as a result of the dissemination of information about the official himself/herself, except in cases specified by law, may lead to a violation of their constitutional rights, harm the dignity, honor, reputation, etc.”.

According to the law, it is forbidden to disclose in the public domain “information on the registration number of the taxpayer registration card or passport series and numbers of citizen of Ukraine, residence, date of birth of declaration subject and his/her family, the location of objects that appear in the declaration … “(Paragraph 4 Part 1 of Article 47). However,  other confidential and personal information is submitted to declaration. In the opinion of subject of the constitutional petition a 24-hour-open access to some information about counteragent (for instance in cases of medical services assignment), employment of family members; information about certain expenditures (for example, specifications of purchased drugs, medicines for themselves and for members of the family members) information about the property co-owners in any case reflects the content of the legal regulation of this law, as stated in its preamble and is contrary to the prescriptions of current legislation and the position of the Constitutional Court of Ukraine.

Disputed provisions of the Law enable the general public to use, distribute and dispose  information about third parties who are not in the family relationship with the declaration subject illegally (provided services, jointly own the property, the recipients of charitable aid, etc.).

In addition, in order to protect certain categories of citizens, the legislation of Ukraine has a special procedure for the use of certain types of information. What is stressed in the conclusions of the Constitutional Court of Ukraine, for example, consent to the collection, storage, use and dissemination of information about a incompetent person is given by the family member or legal representative. During the period of information collection about him/her every competent family member or legal representative of incompetent person has the right to know what information and for what purpose is collected, in which manner, by whom and for what purpose it is used. During the period of storage and distribution of personal data, the same persons have the right of access to such information, the right to question its accuracy, completeness, etc. (Paragraph 2 Part 1 of the regulatory Part of the Constitutional Court of Ukraine conclusion in the case vd971030 vn5-зп dated  30 October 1997 concerning official interpretation of Articles 3, 23, 31, 47, 48 of the Law of Ukraine “On Information” and Article 12 of the Law of Ukraine “About Prosecution” (case K.G. Ustimenko)”.

It should be noted separately that according to the legislation of Ukraine and provisions of international law a special protection is ensured  for medical secrecy and medical information. However, their protection is completely offset by the disputed provisions of the Law.

Thus, according to the paragraph 10 part 1 of Article 46 of the contested law, the declaration subject must display information about transactions concluded by declaration subject, the provision of services concerning themselves, family members or others in case their cost excess 20 minimum wages (such costs may include the cost of purchasing medical drugs, medicines, providing emergency care, inpatient care in hospitals (diagnostic procedures, surgery, nutrition during hospital stay, dental services, obstetric services etc. ).The publication of such information may violate the rights of citizens of Ukraine to protection of “medical confidentiality”. Thus, in accordance with Article 39-1  of Constitution of Ukraine covering health care, the patient has a right to privacy about the health status, the fact of seeking medical advice, diagnosis, and on information obtained during medical examination. It is prohibited to request and provide the information about the diagnosis and treatment of the patient to the place of work or study. Similar provisions are duplicated in Article 286 of the Civil Code of Ukraine. Thus, based on the provided information from the declaration  the third party will be able to track down the data on the declaration subject,  his/her family members and other persons to whom the following services were provided:

a) information on the health status of the patient;

b) information on the disease;

a) information on the diagnosis;

d) the fact about the request for medical aid;

d) information on treatment;

f) information about intimate and family life.

The official interpretation of the Constitutional Court of Ukraine, medical information, i.e. data about person’s health state, his/her medical history, the purpose of the proposed research and therapeutic measures, forecast of the possible development of the disease, including the availability of risk to life and health, by the legal status belongs to the confidential, that is classified as the information with the limited access (Subparagraph 2 Paragraph  2 of resolution part of the Constitutional Court of Ukraine conclusion in case vd971030 vn5-зп of 30 October 1997 on the official interpretation of Articles 3, 23, 31, 47, 48 of the Law Ukraine “On the Information” and Article 12 of the Law of Ukraine “On the Prosecution” (case of K.G. Ustimenko).

Based on the foregoing, there is a risk of direct violation of declaration subject rights, as well as of  his/her family members and other persons whom are specified in the context of information stated in the declaration information provided by law, namely: the receipt of the so-called “sensitive” personal data by third persons (Article 7o the Law of Ukraine “On Personal Data Protection”).

The importance of personal data protection is underlined by the European Court of Human Rights in its judgment in the case “Gaskin v. the United Kingdom.” Thus, according to Paragraph  37 of the decision, the court concluded that “the right of access to personal data arises from the right to protect  private life from unlawful interference”.

The above mentioned information is a part of the right to the protection of medical confidentiality and/or medical information on the one hand and dissemination of such data would violate rights guaranteed by the Constitution of Ukraine. On the other hand failure to submit such information leads to prosecution of declaration subject to criminal responsibility (Article 366-1 of the Criminal Code of Ukraine).

In addition, the disputed provisions of the Law have led to conflicts of norms of the Criminal Code of Ukraine. Since Articles 145, 231, 232 of the Criminal Code of Ukraine articulate  criminal liability for the collection and disclosure of commercial information or medical information, and Article 366-1 of the Criminal Code of Ukraine articulates liability for failure of declaration filing by declaration subject, which can include such information.

The right to protection of personal medical data is fully consistent with international legal agreements and protected by the European Court of Human Rights (for example, the case “Z v. Finland”, “M.S. v. Sweden”).

Thus, in Paragraph 41 of the European Court of Human Rights conclusion in the case “M.S. against Sweden” the court stated: ” … the protection of personal data, primarily medical data, is of fundamental importance for the realization of the right to respect for private and family life guaranteed by Article 8 of according to which confidentiality of information about health is a basic principle of the legal system of all states-parties to the Convention. It is important not only to protect the privacy of patients, but also to maintain their confidence in the staff of medical institutions and health care system in general. National legislation should provide appropriate safeguards to prevent any communication or disclosure of personal data concerning health, unless it does not comply with the guarantees, specified by the Article 8 of the Convention …”.

In the Paragrapg  95 of conclusion of the European Court of Human Rights in the case “Z v. Finland” the Court stated that: “… the protection of personal data, in particular medical data, is of fundamental importance for the realization of the right to respect for private and family life … National legislation should define effective safeguards to prevent the publication or dissemination of personal medical information that is inconsistent with the guarantees set out in Article 8 of the Convention … “.

According to Article 9 of the Constitution of Ukraine the current international treaties ratified by the Verkhovna Rada of Ukraine are incorporated to the national legislation of Ukraine.

Thus, in the Article 12 of the Universal Declaration of Human Rights of 1948 it was established that no one shall be subjected to arbitrary interference with his/her private and family life, unjust attacks on the inviolability of his/her home, or his/her correspondence secrecy upon his/her honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

In the European Convention on Human Rights and  Fundamental Freedoms dated 1950 it is stipulated that everyone has the right to respect for  private and family life,  home and correspondence; state authorities can not interfere with the realization of this right, except when intervention is carried out in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others (Article 8).

The International Pact on Civil and Political Rights dated 1966  established that no one shall be subjected to arbitrary or unlawful interference with his/her private or family life, arbitrary or illegal encroachments on the inviolability of his/her home or the secrecy of his/her correspondence or to unlawful attacks on his/her honor and reputation (Paragraph 1 of Article 17).

The Parliamentary Assembly of Council of Europe noted that everyone’s right to privacy and the right to freedom of opinion expression is the foundation of a democratic society; these rights are not absolute and don’t have a hierarchical nature, because they have equal value. On this basis the right to privacy enshrined in Article 8 of the European Convention on Human Rights dated 1950 should protect individual privacy not only from authorities but from such actions of other persons or institutions, including the media (Paragraph 11, 12 of Resolution № 1165 (1998) “The right to privacy“).

And in cases when regional, national or international banks of computer data are created, the individual does not have to be fully deprived of the right to protection from encroachments on his private life as a result of collecting information relating to his/her private life. Data banks should be limited to the minimum of necessary information required for the purpose of taxation, pension programs, social security and similar issues (Paragraph 5 of Resolution №428 (1970) “Regarding the Declaration on Media and Human Rights”).

Practice of European Court of Human Rights, which along with the decisions of this Court is recognized in Ukraine as a source of law (Article 17 of the Law of Ukraine “On execution of decisions and application of the European Court of Human Rights practice”) in cases relating to the protection of personal data and prohibition of interference in personal and family life.

Thus, in Paragraph  69 of decision “Hannover v. Germany dated 24 June 2004” followinf the application  № 59320/00, the European Court of Human Rights rightly emphasized that everyone, including public figures shall have “legitimate expectation” that their privacy will be protected.

Moreover, the Parliamentary Council of Europe in its Resolution number 1165 (1998) “The right to privacy” noted that the right to privacy must protect people not only from interference by public authorities, but also from any attack by private individuals and organizations.

The European Court of Human Rights in the case “Peck v United Kingdom” dated 28 January 2003 following application № 44647/98 admitted that right to privacy may not have an exhaustive definition (Paragraph 57 of the decision).

The European Court of Human Rights stressed the necessity of the presence of extremely compelling reason to intervene in the private lives of individuals and separation of private and public “sides” of life of public persons  in the judgment in the case “Norris v. Ireland” dated 26 October 1998 following the application № 10581/83 (Paragraph 39 of the Decision).

As seen from the examples given by the judicial practice of the European Court of Human Rights, it is necessary to separate the public and the private sides of life of the subjects authorized to perform the functions of state and local government and the inadmissibility of interference in private life.

Disputed provisions of the Law do not meet the practice of the European Court of Human Rights involving unlawful invasion of privacy and use of personal data of declaration subjects, their family members and third persons (not only the citizens of Ukraine).

Regarding the violation of the principle of legal certainty

The disputed norms of the Law introduce legal structures that not clearly specify the scope and amount of information about persons or property that is subject to disclosure. Definitions of certain terms and phrases used in the Law is absent in the current legislation of Ukraine, some of them cannot be set on, it can only guess concerning the value of some of them. Therefore it is impossible to determine what and how the declaration subject must reflect in the declaration.

So, the Law obliges to provide information on the unfinished construction objects, objects that are not put into operation (Should the building materials be reflected? – If so, how to determine their characteristics?), available cash (it is not clear, how to determine the “availability” of money, and at what kind of moment? or over what period of time?), the valuable movable property (How to determine the value of the property? – A personal opinion of declaration subject by the way? Is it necessary to indicate the whole property which value exceeds 50 min. wages? – and if so, whether such property would be considered valuable by the controlling organs?); data about the occupied position or work (paid or not) (Is it necessary to reflect the volunteering work? How to understand “or not”?)

In application of the disputed law raises the question how the subject, who is covered by the Law, should determine such provisions of the Law as “relationships of family nature”, “others who live together”, “other persons who are not officials and who perform work or provide services under the contract”, “generally accepted notions of hospitality” “intangible and other assets”, “identical in content with the disposal right”, “the main purpose is to use in economic activity”; “logical and arithmetic control”, “assess the accuracy of declared assets”, “selective monitoring of lifestyle”.

A similar legislative approach does not take into account the legal positions of the Constitutional Court of Ukraine, where in the decisions it was repeatedly emphasized that a key element of the rule of law are the principles of legal certainty, clarity and unambiguousness of the legal norm, as far as otherwise may not ensure its uniform application, does not exclude unboundedness interpretation in enforcement practice and inevitably leads to willfulness (Par. 2 Subparagraph  5A Paragraph 5, of the reasoning part of the judgment in the case N1-17/2005 dated 22 September 2005 under the constitutional petition of 51 People’s Deputies of Ukraine concerning compliance with the Constitution of Ukraine (constitutionality) of provisions of Article 92, paragraph b of section X “Transitional Provisions” of the Land Code of Ukraine (the case of permanent use of land); Parafraph 2 Subparagraph 4.2. Paragraph 4 judgment of N 1-34/2010 dated 22 December 2010 of the constitutional appeal of citizen Artem A. Bahinskiy concerning the official interpretation of the provisions of paragraph 1 of Article 14-1 of the Code of Ukraine on Administrative Offences (case of administrative responsibility in the field of road safety) Paragraph 2 Subparagraph 4.2. Paragraph 4 of case judgment N 1-28/2011 dated 11 October 2011, etc.).

As stated in the Report of the European Commission “For Democracy through Law” (Venice Commission) on the rule of law dated on 28 March 2011 № 512/2009, the concept of the supremacy of law together with the concept of democracy and human rights form the three pillars of the Council of Europe and is approved in the preamble of European Convention on Human Rights. This principle is also enshrined in several international documents concerning human rights and in documents that establish standards. One of the key features of the rule of law is that no one shall be subjected to punishment, except in the case of clear violation of the law, the law that should provide certainty and predictability by which the citizens could be guided when performing actions or carrying out any operations, and which should not allow to punish the person retrospectively. Where there is discretion, there is room for willfulness. All persons and authorities within the state, public or private, shall have the obligations and enjoy the benefits of laws that openly created, shall be currently effective (mostly) in the future and are implemented in open court. Legitimacy as an element of the rule of law provides that no person may be punished if it is not filed previously enacted or established law.

The state must make the text of the law comprehensible, it is obliged to respect and apply predictable laws and good faith that it has entered into force. Predictability means, inter alia, that it must be formulated with sufficient precision to enable the individual to regulate his/her behavior. Legal certainty requires that legal norms are clear and precise, and aimed to provide predictability and legal situations. The reverse effect is also contrary to the principle of legal certainty as subjects of right should know the consequences of their behavior. Parliament cannot be allowed to circumvent the fundamental rights through controversial laws (paragraphs 1,2,9, 36, 42, 44, 46, 46, 47 of the Report). “.

The need to respect the quality of the law and the principle of legal certainty as an element of the rule of law stated in the decisions of the European Court of Human Rights.

In Paragraph 55 of Decision of the European Court of Human Rights in the case “Baranowskiy v. Poland” dated  28 March 2000  it is stated that: “The Court considers that the Polish law, given the absence of such regulations, did not meet the norm of “predictability”, as required by Paragraph 1  of Article 5 of the Convention. The Court also considers that the mentioned practice, which arose from a legislative gap when the person was detained for an indefinite and unpredictable time, not substantiated by the specific legal provisions or judicial decision “is contrary to the principle of legal certainty.”

In judgment dated on 23 October 2008 in the case “Soldatenko v. Ukraine” European Court of Human Rights stated: “By establishing that any deprivation of liberty should be implemented “in accordance with a procedure prescribed by law”, Paragraph 1 Article 5 not only refers to the national law … it also applies to the “quality of law”, requiring from the law the compliance with the supremacy of law … Meanwhile the “quality of law” means that in the case where national law provides for deprivation of liberty, such law must be sufficiently accessible, articulate and predictable in its application in order to avoid all risk of willfulness” (Paragraph 111)”

Based on the practice of the European Court of Human Rights, the norms of law, which contemplate the responsibility should correspond the principle of legal certainty, be articulate and predictable in their application.

As it is seen, the disputable provisions of the Law, the constitutionality of which is the subject of this presentation violated the rights and freedoms of a person and a citizen, guarantees of their compliance and protection, do not comply with the principles of legal certainty, are contrary to the principle of law supremacy, guaranteed by the Constitution of Ukraine. Disputed provisions of the Law restrict the rights of citizens of Ukraine (Article 21 of the Constitution of Ukraine), as a violation of the constitutional requirements of non-interference in privacy (Art. 32 of the Constitution of Ukraine), disclosure of personal and confidential information (Art. 64 of the Constitution of Ukraine), highest legal force of the Constitution of Ukraine and accordance to it Laws and other normative and legal acts (Art. 8 of the Constitution of Ukraine).

In the opinion of the petitioner the provisions “including adults, parents” and “other persons who live together, have a joint household, mutual rights and obligations (other than those whose mutual rights and obligations have no family character), including persons who live together but are not married”, of Paragraph 14 Part 1 Article 1 of the Law; of the provision “persons who permanently or temporarily occupy positions related to the implementation of organizational and administrative or administrative and economic duties or specially authorized to perform such duties in legal entities of private law, regardless of the legal form as well as other persons who are not officials and who perform work or provide in accordance with the contract with the enterprise, institution, organization” of Paragraph 3 Part 1 Article 3, provision “to have direct access to databases of state bodies, governmental bodies of the Autonomous Republic of Crimea, local governments, to use the state, including the government connection systems and communications, special communication networks and other technical means;” of the Paragraph 2 Part 1 of Article 12, of the points 2, 2 with the Note, 3, 4, 8, of the provision “available cash assets, including cash” and “funds lent to third parties” of the points 8, 9, 10, 11 of Part 1 Article 46, second and Paragraph 3 of Part 1 Article 47” provision not substantiated by the specific legal provisions or judicial decision “is contrary to the principle of legal certainty.”

In judgment dated on 23 October 2008 in the case “Soldatenko v. Ukraine” European Court of Human Rights stated: “By establishing that any deprivation of liberty should be implemented “in accordance with a procedure prescribed by law”, Paragraph 1 Article 5 not only refers to the national law … it also applies to the “quality of law”, requiring from the law the compliance with the supremacy of law … Meanwhile the “quality of law” means that in the case where national law provides for deprivation of liberty, such law must be sufficiently accessible, articulate and predictable in its application in order to avoid all risk of willfulness” (Paragraph 111)”

Based on the practice of the European Court of Human Rights, the norms of law, which contemplate the responsibility should correspond the principle of legal certainty, be articulate and predictable in their application.

As it is seen, the disputable provisions of the Law, the constitutionality of which is the subject of this presentation violated the rights and freedoms of a person and a citizen, guarantees of their compliance and protection, do not comply with the principles of legal certainty, are contrary to the principle of law supremacy, guaranteed by the Constitution of Ukraine. Disputed provisions of the Law restrict the rights of citizens of Ukraine (Article 21 of the Constitution of Ukraine), as a violation of the constitutional requirements of non-interference in privacy (Art. 32 of the Constitution of Ukraine), disclosure of personal and confidential information (Art. 64 of the Constitution of Ukraine), highest legal force of the Constitution of Ukraine and accordance to it Laws and other normative and legal acts (Art. 8 of the Constitution of Ukraine).

In the opinion of the petitioner the provisions “including adults, parents” and “other persons who live together, have a joint household, mutual rights and obligations (other than those whose mutual rights and obligations have no family character), including persons who live together but are not married”, of Paragraph 14 Part 1 Article 1 of the Law; of the provision “persons who permanently or temporarily occupy positions related to the implementation of organizational and administrative or administrative and economic duties or specially authorized to perform such duties in legal entities of private law, regardless of the legal form as well as other persons who are not officials and who perform work or provide in accordance with the contract with the enterprise, institution, organization” of Paragraph 3 Part 1 Article 3, provision “to have direct access to databases of state bodies, governmental bodies of the Autonomous Republic of Crimea, local governments, to use the state, including the government connection systems and communications, special communication networks and other technical means;” of the Paragraph 2 Part 1 of Article 12, of the points 2, 2 with the Note, 3, 4, 8, of the provision “available cash assets, including cash” and “funds lent to third parties” of the points 8, 9, 10, 11 of Part 1 Article 46, second and Paragraph 3 of Part 1 Article 47” provision “accuracy assessment of the of the declared assets” of Part 1 and 3 of Article 50, Article 51, the Paragraph 2 of Article 52  of Law don’t correspond the Constitution of Ukraine (are unconstitutional).

The legal substantiation for assertions of the unconstitutionality of the provisions of Article 51 of the law because of their inconsistency with Articles 8, 19, 21, 28, 32,41,57, 58,61,64,68 of Constitution of Ukraine

According to Article 51 of the Law:

  1. National Agency carries out selective monitoring of subjects declaration lifestyle to establish their compliance with the standard of living available to them and their family property and proceeds obtained by them in accordance with the declaration of the person authorized to perform state functions or local government, submitted in correspondence with this Law.
  2. Monitoring of subjects declaration lifestyle is made by the National Agency on the basis of information received from physical persons and legal persons, as well as media and other open sources of information, which contains information about the discrepancy in declaration subjects’ standards of living and their declared property and income.
  3. Monitoring procedures for lifestyle of declaration subjects is established by the National Agency.

Monitoring of the lifestyle is made in compliance with the legislation on protection of personal data and should not provide undue interference with the right to respect for private and family life of a person.

  1. Ascertainment of contradiction of life level of declaration subject with his/her declared assets and income is the basis for a complete verification of its declaration. In case of ascertainment of contradiction of life level by National Agency to subject the declaration is given an opportunity within ten working days to provide a written explanation for this fact.

In case of the ascertainment by the lifestyle monitoring results the signs of corruption offense or offenses associated with corruption National Agency informs the specially authorized subjects in combating corruption.

The disputed norm of the Law of National Agency concerning Corruption Prevention is authorized to monitor the life, i.e. the set of measures and procedures that have identical content with investigative (detective) actions.

In connection with the absence of a definition of “monitoring” of the contested law, the subject of the constitutional appeal addressed the definition of which is given in the explanatory dictionaries.

The Great Dictionary of Modern Ukrainian language defines “monitoring” as a continuous observation of any process in order to identify its compliance with the desired result.

To watch the person, thing or place, as well as audio and video surveillance of space in accordance with the Articles 269, 270 of the Criminal Procedure Code of Ukraine have the right exclusively operational units to perform tasks of operational activities in the presence of stipulated foundation (Par. 11, Art. 8 of Law “About the Operational Investigative Activities”).

According to the Article 19 of the Constitution of Ukraine: “state authorities and local governments and their officials are obliged to act only on the basis and within the authority and in the manner stipulated by the Constitution and laws of Ukraine.”

Monitoring of subjects declaration lifestyle is made by the National Agency on the basis of information received from physical persons and legal persons, as well as media and other open sources of information, which contains information about the discrepancy in declaration subjects’ standards of living and their declared property and income.

Thus, the article of the Law, which stipulates the implementation of monitoring for the person, is contrary to Articles 19 and 21 of the Constitution of Ukraine.

In addition, Article 19 of the Constitution of Ukraine transfers that the powers of state and local governments, their officials act within the powers and in the manner stipulated by the Constitution and laws of Ukraine.”

Thus, the article of the Law which stipulates the granting itself authority directly contradicts Article 19 of the Constitution of Ukraine.

Regarding violation of principle of equality

In accordance with the Article 21 of the Constitution of Ukraine, all people are free and equal in dignity and rights. Human rights and freedoms are inalienable and inviolable.

According to Article 24 of the Constitution, citizens have equal constitutional rights and freedoms and are equal before the law. There can be no privileges or restrictions based on race, color, political, religious and other beliefs, sex, ethnic or social origin, property, residence, language or other characteristics.

In the decision dated on 02 November 2004 № 15-rp/2004 in case of the constitutional petition of the Supreme Court of Ukraine on the conformity of the Constitution of Ukraine (constitutionality) of Article 69 of the Criminal Code of Ukraine (case of the more lenient penalty by the Court) the Constitutional Court of Ukraine stated that Ukraine is a state of law (Article 1 of the Constitution of Ukraine), in accordance with the Paragraph 1 of Article 8 of the Constitution in Ukraine is recognized and is effective the principle of law supremacy. “The law supremacy is a rule of law in society. The rule of law requires from the state its implementation in the law-making and law enforcement activities, including the laws that by their content must be permeated above all by the ideas of social justice, freedom, equality, etc.”(Paragraph 1, 2, Subparagraph 4.1, Paragraph 4 of the reasoning part of the Decision).

The Constitutional Court of Ukraine in Subparagraph 4.1 Paragraph 4 of the reasoning part of the already mentioned Decision of 02.11.2004 № 15-rp/2004 in the case of the more lenient penalty stressed that: ”Ukraine is a state of law (Article 1 of the Constitution of Ukraine); person, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value (Part 1 Article 3); human rights and freedoms and their guarantees determine the content and direction of the state activity (Part 2 Article 3); human rights and freedoms are inalienable and inviolable (Article 21); everyone has the right to respect for his dignity (Part 1 Article 28); the rights and freedoms of man and citizen are protected by the court (Part 1 Article 55); one of the basic principles of justice is equality of all participants of judicial proceeding before the law and the court (Paragraph 2 Part 3 Article 129). … In the area of ​​the right implementation the equality is manifested, in particular, in equality of all before the law, compliance with crime and punishment, purposes and means that are selected to achieve them. “.

Further, the Constitutional Court of Ukraine in its decision number 9-rp/2012 dated on 12 April 2012, in case by the constitutional appeal of the citizen Anton P. Troyan concerning the official interpretation of Article 24 of the Constitution of Ukraine (case of equality of judicial prosecco sides) stated: “In Ukraine as in a democratic, legal state a person, his/her life and health, honor and dignity, inviolability and security are recognized as the highest social value; human rights and freedoms and their guarantees determine the essence and direction of the state activity; the state is responsible to the people for its activities; affirming and ensuring of human rights and freedoms is a key duty of the state (Articles 1 and 3 of the Constitution of Ukraine). … Equality and the inadmissibility of discrimination against individuals are not only the constitutional principles of the national legal system in Ukraine, but also the fundamental values ​​of the international community, what is emphasized in international legal acts concerning the protection of the rights and freedoms of citizens, in particular the International Pact on Civil and Political Rights of 1966 (Articles 14, 26), European Convention on Human Rights and Basic Freedoms of  1950 (Article 14), Protocol N9 12 to the European Convention on Human Rights and Basic Freedoms of 1950 (Article 1), ratified by Ukraine and in the Universal Declaration of Human Rights of 1948 (Articles 1, 2, 7). “.

About the evident contradiction of the provisions of Part 1 Article 51 of the disputed Law to the constitutional principles of legal certainty, equality and justice attest the implementation of selective monitoring of declaration subjects’ lifestyle itself and the foundations of implementing of such selective monitoring defined by Article 52 of the contested law. Thus, based on the provisions of Part 2 Article 51 of the contested Law, monitoring of declaration subjects lifestyle is made by the National Agency on the basis of information received from physical persons and legal persons, as well as media and other open sources of information, which contains information about the discrepancy in declaration subjects’ standards of living and their declared property and income.

However, the contested provisions of Law don’t set the requirements and verification procedure of reliability of relevant information sources. Thus, the Part 1,2 Article 52 of the contested law allows the National Agency to monitor the lifestyles of declaration subjects on the basis, as an example, information obtained from the Internet (the authenticity of which is not always the case), or messages and appeals of physical persons who are connected with the declaration subject with unfriendly or hostile relations or individuals who aim to avenge the relevant declaration subject in connection with the adoption of certain decisions (for instance, parties who are not satisfied with the legal judgment, etc.). Obviously, the information received from physical and legal persons, as well as media and other open sources of information, which contains information about the discrepancy in standards of living of declaration subjects with the declared property and incomes is not always reliable and objective and, consequently, monitoring that will be conducted for the following reasons, will not always be objective.

The presence of the relevant provisions in the disputed Law also factually allows the National Agency almost in its sole discretion to monitor declaration subject lifestyle, which creates prerequisites for the prosecution of persons authorized to exercise powers for political or other grounds, because of their principled position on individual issues within their professional activities, etc., and with the purpose to “encourage” to take certain decisions, actions, inaction on issues within their competence.

At the inadmissibility of discrimination and the need to ensure equality in the practice repeatedly emphasized the European Court of Human Rights, which in their numerous precedents understands discrimination as different treatment of people in relatively similar situations, that is not caused by any reasonable or objective reasons (the decision for “Willis v. the United Kingdom” (Par.39), “Okpiz v. Germany” (Par.33), “Nachova and Others v. Bulgaria” (Par.145).

In the opinion of subject of law on the constitutional petition, provisions of Article 51 of the Law don’t correspond the Constitution of Ukraine (are unconstitutional) due to their inconsistency with Articles 8,19,21 of Constitution of Ukraine.

1.3. The legal substantiation for assertions of the unconstitutionality of the provisions of Paragraph 3 Part 3 of Final and Transitional provisions of the Law and Article 366-1 of the Criminal Code of Ukraine because of their inconsistency with Articles 8, 21,22,24,28,38,43,57,58,61, 62,64 of the Constitution of Ukraine

According to Article 366-1 of the Criminal Code of Ukraine:

“Submitting by declaration subject knowingly false information in the declaration of the person authorized to perform state functions or local government, specified by the Law of Ukraine “About Prevention of Corruption” or intentional failure to declare by the declaration subject

is punishable by imprisonment for up to two years with disqualification to hold certain positions or engage in certain activities for up to three years. Note. The declaration subjects are persons who according to the Part 1,2 of Article 45 of the Law of Ukraine “About Prevention of Corruption” are required to submit a declaration of the person authorized to perform state functions or local government”;”.

The disputed norms stipulate the implementation of criminal responsibility to the declaration subject for declaring knowingly false information or intentionally failing to declare stipulated by the Law. As in this constitutional petition in the declaration shall provide information about the financial position of not only the declaration subject but also about the financial position of his family members and information about third parties (in particular, information about the immovable objects, unfinished constructions, valuable movables, securities, other corporative rights, intangible assets, beneficial ownership, the property of a third party, if the declaration subject or family member receives or is entitled to receive income from such an object or may be directly or indirectly (through other physical or legal persons) to perform any action concerning this object, identical in content with the disposition right). In addition the members of the families include adult children, parents, regardless of whether they live together with the declaration subject and other persons living with the subject of the declaration (daughter-in-law/son-in-law, mother-in-law/father-in-law, brother/sister, children from previous marriages of wife/husband etc.)

The disputed norms of the Law stipulate the application of responsibility for the actions of third parties. The declaration subject either because of legal regulation or because of physical abilities is not able to verify the authenticity of information provided to him/her to indicate in its declaration required by the Law.

Such a legal approach does not meet the institute of legal liability; constitutional principles for bringing the person to justice (legal responsibility of the person has an individual character (Part 2 Article 61 of the Constitution of Ukraine) and is contrary to the principle of law supremacy in Ukraine; the highest legal force of the Constitution of Ukraine; correspondence of Laws and other normative and legal acts of the Constitution of Ukraine (Article 8).

According to the interpretation of the Constitutional Court of Ukraine “the crime” or the criminal offence” is characterized by obligatory presence of corpus delicti: the subjective side (guilt), the objective side (socially dangerous consequences, socially dangerous act, causation), subject, object

The legal structure of disputed provision of the Law provides for institution of criminal proceedings against person for the acts or inactions, which is not a crime and a criminal offense because there are no required components of a crime.

The absence of one of the elements of the offense in the disputed provisions of the Law was noted also in the conclusion of the Main Scientific Expert Department of the Verkhovna Rada of Ukraine, it was stated that: “submission of knowingly false information in the declaration of the person authorized to perform state functions or local government, without the occurrence of any dangerous consequences in itself does not reach the level of public danger sufficient to establish the following conduct crimes. Dismissal of such a person from the occupied position, which may be provided without establishing criminal liability is quite sufficient responsibility for appropriate action” (Conclusion of the Main Scientific Expert Department of the Verkhovna Rada of Ukraine to the project of Law ”About Prevention of Corruption” number 5113 from 06.10. 2014).

The provisions of the Paragraph 3 Part 3 of the Final and Transitional provisions of the Law and Article 366-1 of the Criminal Code of Ukraine on criminal liability for “declaration knowingly false information in the declaration of the person authorized to perform state functions or local government, stipulated by the Law of Ukraine “About Prevention of Corruption”” are contrary to the constituent elements of the law supremacy as the principles of fairness, proportionality, expediency, legality and validity of criminal responsibility.

According to the Article 29 of the Universal Declaration of Human Rights from 10 December 1948 during the enjoyment of his/her rights and freedoms, everyone shall be subject only to such limitations as are prescribed by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and to ensure the just requirements of morality, public order and the general welfare in a democratic society.

The principle of proportionality is a manifestation of the European law tradition, but the main use of it was found in the practice of the European Court of Human Rights. For example, in Par.49 of decision of the European Court of Human Rights («Case of Handyside v. the United Kingdom») stated that “Every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued” .

In theory of European Union law, the following criteria of proportionality were established: the restriction must be prescribed by a certain legal act (including an individual one); limitations must pursue a legitimate purpose; restrictions must be necessary in a democratic society; restrictions must be of lawful dimension to the purpose that was achieved.

The Constitutional Court of Ukraine in Subparagraph 4.1 of Paragraph 4 of the reasoning part of Decision dated on 02.11.2004 № 15-rp/2004 in the case of the more lenient penalty stressed that: “One of the manifestations of the law supremacy is that the right is not restricted only legislation as one of its forms, but includes other social regulators, including morality, traditions, customs, etc., which are legitimized by society and are caused by historically achieved cultural level of society. All these law elements are combined by the quality that correspond ideology of justice, the idea of ​​law, which was largely reflected in the Constitution of Ukraine. This understanding of the law provides no basis for his identification with the law, which can sometimes be unfair, including limit freedom and equality of the individual. Justice is one of the basic principles of law and is crucial in identifying it as a regulator of public relations, one of the human rights dimensions. Typically justice seen as property of rights, expressed in particular in the equal legal behavior dimension and the proportionality of legal responsibility of the committed offense. In the area of ​​the right justice is manifested, in particular, in the equality of all before the law, compliance with crime and punishment, purposes and means of the legislators selected to achieve them. Another manifestation of justice is the issue of compliance penalty to the committed crime; justice category provides that the punishment for a crime must be proportionate to the crime. Fair application of the law is primarily discriminatory approach, preconception. This means that not only the statutory crime and punishment beyond meet each other, but that punishment should be in the justice correspondence with the severity and circumstances of the offense and the offender. Adequacy of the seriousness of the crime penalties arises from the principle of the law state, from the nature of the constitutional rights and freedoms of a person and citizen”.

In the Paragraph 6, Point 2 of the reasoning part of Decision dated on 30 May 2001 № 7-rp/2001 in the case of liability of legal persons, the Constitutional Court of Ukraine stressed the importance to protect the rights and freedoms of a person and citizen: “The Constitution of Ukraine established that the corpus delicti as a basis of institution of juridical responsibility against the person and activities of state and coercive actions for his/her deeds are determined exclusively by the law and not by any other legal act, that the legal responsibility of the person has an individual character, that no one can answer for acts that, at the time it was committed, were not recognized by the law as an offense (Articles 58, 61, Paragraphs 1, 22 of Part 1 Article 92 of the Constitution of Ukraine).

According to paragraph 1 of Article 52 of the Charter of Fundamental Rights of the European Union in 2000, any restriction of the rights and freedoms defined by this Charter must be based on the Act respecting the essence of those rights and freedoms. The applied the principle of proportionality limitations may be established only when they are necessary and meet objectives of general interest and which are recognized by the European Union, or the need to protect the rights and freedoms of others.

According to Paragraph 1 Article 52 of the Charter of Fundamental Rights of the European Union 2000, any restriction of the rights and freedoms defined by this Charter must be based on the Act respecting the essence of those rights and freedoms. The applied limitations under the principle of proportionality may be established only when they are necessary and meet objectives of general interest and which are recognized by the European Union, or the need to protect the rights and freedoms of others.

On the family members of declaring subject that live separately from him/her, it is impossible to put an obligation to provide information about them and their expenses. Consequently, it appears that the rules of the contested Law require from the declaration subject committing acts that are not dependent on his will and, in the case where such actions are not committed it is stipulated a legal responsibility for it, which is legally incorrect (this is emphasized in the conclusion of the Main Scientific Expert Department of the Verkhovna Rada of Ukraine to the law project ”About Prevention of Corruption” № 5113 dated on 06.10.2014).

In the Paragraph 6, 2 of the reasoning part of the Constitutional Court of Ukraine Decision from 30 May 2001 № 7-rp/2001 in the case for the constitutional appeal of Open Joint Stock Company “Ukrainian Joint Stock Bank” the official interpretation of Paragraph 22 Article 92 of the Constitution of Ukraine, Part 1,3 Article 2, Article 38 of the Code of Ukraine on Administrative Offences (case on liability of legal persons) stated that; “stressing the importance to protect the rights and freedoms of a person and citizen, the Constitution of Ukraine established that the corpus delicti as a basis of institution of juridical responsibility against the person and activities of state and coercive actions for his/her deeds are determined exclusively by the law and not by any other legal act, that the legal responsibility of the person has an individual character, that no one can answer for acts that, at the time it was committed, were not recognized by the law as an offense  and  be brought twice to legal liability of the same type for the same offense (Articles 58, 61, Points 1, 22 Part 1Article 92 of the Constitution of Ukraine). “

Regarding the unconstitutionality of the impugned provisions of the Act due to violation of the rule of law supremacy, legal certainty and the prohibition of interference in private and family life have to be  used all legal statements referred to in paragraphs 1.1.of  this constitutional petition.

Thus, the Law creates the practice of prevention of person’s actions within the law, i.e. strict implementation of the law by the person does not mean he/she complies with the law and that the person is not guaranteed the absence of sanctions against him/her in the future.

Thus, the provisions of Paragraph 3 Part 3 of the Final and Transitional provisions of the Law and Article 366-1 of the Criminal Code of Ukraine does not comply with Articles 8, 21, 22, 24, 28, 38, 43, 57, 58, 61, 62, 64 of the Constitution of Ukraine.

* * *

Considering that the aim of the constitutional petition is protection fundamental rights and freedoms of man and citizen, to prevent misuse guarantees their protection, prevention of negative consequences of widespread of use of unconstitutional provisions of the contesting Law, adopted during the implementation process of the contested Law, which very likely will have irreversible consequences is imperative constitutional recognition of the urgent procedure in accordance with Article 57 of the Law of Ukraine “About the Constitutional Court of Ukraine.”

Based on the foregoing and guiding by the Articles 147, 150 and 152 of the Constitution of Ukraine, Paragraph 1, Article 13, Articles 15, 38, 39, 40, 57, 71 and 82 of the Law of Ukraine “On the Constitutional Court of Ukraine”

WE REQUEST:

  1. To start the constitutional proceedings on this constitutional petition.
  2. To declare that the following provisions do not meet the Constitution of Ukraine (are unconstitutional) “including adults, parents” and “other persons who live together, have a joint household, mutual rights and obligations (other than those mutual rights and obligations which have no family character), including persons who live together but are not married, “Paragraph 14 of Article 1 of the Law; of the provision “persons who permanently or temporarily occupy positions related to the implementation of organizational and administrative or administrative and economic duties or specially authorized to perform such duties in legal entities of private law, regardless of the legal form as well as other persons who are not officials and who perform work or provide services in accordance with the contract with the enterprise, institution, organization” of Paragraph 3 Part 1 of Article 3, provision “to have direct access to databases of state bodies, governmental bodies of the Autonomous Republic of Crimea, local governments, to use the state, including the government connection systems and communications, special communication networks and other technical means;” of the Paragraph 2 Part 1 of Article 12, of the points 2, 2 with the Note, 3, 4, 8, of the provision “available cash assets, including cash” and “funds lent to third parties” of the points 8, 9, 10, 11 of Part 1 Article 46, Paragraph 2 and 3 of Part 1 “accuracy assessment of the of the declared assets” of Part 1 and 3 of Article 50, Article 51, Part 2 of Article 52; Subparagraph 3 Paragraph 3 Part Five of Final and Transitional Provisions of the Law and Article 366-1 of the Criminal Code of Ukraine.
  3. To recognize the constitutional proceedings in case on this constitutional petition urgent.
  4. To engage in constitutional proceedings the representatives of the subject of law on the constitutional petition by order:
  • Olexander V. Dolzhenkov – People’s Deputy of Ukraine
  • Vasil I. Nimchenko – People’s Deputy of Ukraine;
  • Dmitry Y. Shleyov – People’s Deputy of Ukraine

Annex:

  1.           Extract from the Constitution of Ukraine.
  2.           Extract from the Law of Ukraine “About the Constitutional Court of Ukraine.”
  3.           Law of Ukraine “About Prevention of Corruption” №1700-VII from 14 October  2014
  4.           Extract from the Law of Ukraine “Constitutions of Ukraine about Health Care”.
  5.           Extract from the Civil Code of Ukraine.
  6.           Extract from the Law of Ukraine «On Personal Data Protection ».
  7.           Extract from the Criminal Code of Ukraine
  8.           Extract from the Universal Declaration of Human Rights
  9.           Extract from the European Convention on Human Rights and Basic Freedoms (1950)
  10.           Extract from the International Pact on Civil and Political Rights (1966)
  11.           Extract from Resolution № 1165 (1998) “Right to Privacy”
  12.           Extract from the Law of Ukraine “About Execution of Decisions and Practical Application of the European Court of Human Rights”.
  13.           Extract from the Decision of European Court of Human Rights in the case “Soldatenko v. Ukraine”.
  14.           Extract from the Criminal Processing Code of Ukraine
  15.           Extract from the Charter of Fundamental Rights of the European Union.
  16.           Extract from the Decision of European Court of Human Rights on 27 August 2007 in the case of “M.S. v. Sweden”; application № 17851/91.
  17.           Extract from the Decision of European Court of Human Rights on 25 February 1997 in the case of “Z. v. Finland “; application № 22009/93
  18.           Extract from the Decision of European Court of Human Rights on 24 June 2004 in the case of «Hannover v. Germany»; application № 59320/00
  19.           Extract from the Decision of European Court of Human Rights on 26 October 1998 in the case of «Norris v. Ireland»; application № 10581/83
  20.           Extract from the Decision of European Court of Human Rights on 28 January 2003 in the case of «Peck v. United Kingdom» application № 44647/98
  21.           Extract from the Decision of European Court of Human Rights on 28 March 200 in the case of “Baranowski v. Poland” application № 28358/95
  22.           Extract from the Decision of European Court of Human Rights on 11 June 2002 in the case of “Willis v. United Kingdom” application № 36042/97
  23.           Extract from the Decision of European Court of Human Rights on 25 October 2005 in the case of ” Okpiz v. Germany” application № 59140/00
  24.           Extract from the Decision of European Court of Human Rights on 6 July 2005 in the case of ” Nachova and Others v. Bulgaria ” application № 43577/98 та 43579/98
  25.           Extract from the Decision of European Court of Human Rights on 7 December 1976 in the case of ” Handyside v. United Kingdom” application № 5493/72
  26.               The decision of the Constitutional Court of Ukraine in the case of constitutional petition of the Supreme Court of Ukraine on the conformity of Constitution of Ukraine (constitutionality) of the provisions of Laws of Ukraine “About Principles of Prevention and Combating Corruption”, “About the Liability of Legal Persons for Corruption”, “About Amendments to Certain Legislative Acts of Ukraine Regarding Liability for Corruption Offenses” (a case of corruption offenses and enforcement of anti-corruption laws) Case N 1-27 / 2010 from 6 October 2010 N 21 -рп/2010
  27.           The decision of the Constitutional Court of Ukraine in the case of the constitutional petition of Zhashkiv district council in Cherkasy region on the official interpretation of the provisions of the Part 1,2 Article 32, Part 2,3 Article 34 of the Constitution of Ukraine, 20 January  2012 № 2-рп/2012
  28.           The decision of the Constitutional Court of Ukraine in the case УСІ971 030 УП5-ЗП from 30 October 1997 concerning the official interpretation of Articles 3, 23, 31, 47, 48 of the Law of Ukraine “About Information” and Article 12 of the Law of Ukraine “About Prosecution” (case of K.G. Ustimenko).
  29.           The decision of the Constitutional Court of Ukraine in the case of constitutional petition of 51 people’s deputies of Ukraine regarding the conformity to the Constitution of Ukraine (constitutionality) of provisions of Article 92, Paragraph 6 Chapter X Transitional Provisions “of the Land Code of Ukraine (the case of permanent use of land) Case N 1-17/2005 from 22 September 2005 N 5-рп/2005
  30.           The decision of the Constitutional Court of Ukraine in the constitutional appeal of citizen Artem O. Bahinskiy concerning the official interpretation of the provisions of Article 14-1 of the Code of Ukraine on Administrative Offences (case of administrative responsibility in the field of road safety) Case N 1-34/2010 dated 22 December 2010 N 23-рп/2010
  31.           The decision of the Constitutional Court of Ukraine in case the constitutional petition of 50 People’s Deputies of Ukraine regarding the conformity to the Constitution of Ukraine (constitutionality) of certain provisions of Article 263 of the Code of Ukraine on Administrative Offences and Paragraph 5 Part 1 Article 11 of the Law of Ukraine “About Police” (the case on the terms of administrative detention ) Case N 1-28/2011 of 11 October 2011 N 10-рп/2011
  32.           The decision of the Constitutional Court of Ukraine in the case of constitutional petition of the Supreme Court of Ukraine concerning conformity to the Constitution of Ukraine (constitutionality) of Article 69 provisions of the Criminal Code of Ukraine (case of the more lenient penalty by the court) on 2 November 2004 №15- рп/2004.
  33.           The decision of the Constitutional Court of Ukraine in the case of constitutional appeal of citizen Anton P. Troyan concerning the official interpretation of Article 24 of the Constitution of Ukraine (case of equality of litigants) on 12 April 2012 № 9-рп/2012
  34.           Conclusion of Central Scientific Experts Office on the Law Project of Ukraine “About Prevention of Corruption”.
  35.           The decision of the Constitutional Court of Ukraine in the case of constitutional appeal of Open Joint Stock Company “Ukrainian Joint Stock Bank” concerning the official interpretation of provisions of Paragraph 22 Part 1 Article 92 of the Constitution of Ukraine, Parts 1, 3 Article 2 Part 1 Article 38 of the Code of Ukraine about the Administrative Offences (case on liability of legal persons) from 30 May 2001, N 7- рп/2001
  36.           The European Commission for Democracy through Law (Venice Commission) Report concerning law supremacy, adopted by the Venice Commission at its 86th plenary session (Venice, 25-26 March 2011) (extract)
  37.           Extract from the Law of Ukraine «About Operative Search Activity»
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