V. S. Kovalskyi «Аnti-corruption default» as a consequence of violation of legal functions. Scientific report

As a result of theoretical research, sooner or later new scientific concepts, facts, concepts appear. The concept of default is not typical of the legal sciences, because it characterizes the state of settlements, systemic debt. In the legal sense, default occurs in credit relations with non-payment of debts or payments, in violation of payment obligations and in general the inability of the subject of legal relations, in particular the state institution, to liquidate debt obligations and conduct its activities in a timely manner.
The concept of “legal default” was first used by the Accounting Chamber of Ukraine in 2010 during inspections to increase the application of international judicial sanctions to Ukraine. The Accounting Chamber audited the effectiveness of the use of budget funds to implement measures to protect the rights and interests of the state during the settlement of disputes by foreign jurisdictions and concluded that management decisions of public authorities to protect the rights and interests of the state are ineffective. In fact, by financing the authorities, the state spends significant funds on officials, the consequences of which are recognized by national and international courts as illegal, and the activity itself – such that does not lead to the elimination of the causes of disputes. At the same time, in Ukraine there is still no legal assessment of populist decisions to adopt economically unjustified social laws. Due to this, the implementation of social guarantees defined by law, the financing of mandatory payments and benefits from year to year is suspended, various categories and segments of the population do not receive their due payments. The same applies to domestic businesses: in the presence of weak legislation, there is a violation of the terms of investment agreements signed by them, which, in turn, leads to a rapid increase in the number of lawsuits in foreign jurisdictions against Ukraine (see URL: http: // old.ac-rada.gov.ua/control/main/uk/publish/article/16733081).

The state’s anti-corruption mechanism, which has been under construction over the past few years, has found itself in a state of crisis. Since the adoption of the Law of Ukraine “On Prevention of Corruption” on October 14, 2014, it has “embedded” provisions that exclude certain types of legal conduct of officials as restrictions and prohibitions (see the website of the Verkhovna Rada of Ukraine. URL: https: // zakon .rada.gov.ua / laws / show / 1700-18 # Text). In particular, there was a restriction or prohibition to hide information in the declaration, or liability for refusal to submit it; illegal combination; receiving gifts through official activities; refusal of special inspections; conflict of interest (real or potential) that affects decision-making; violation of the rules of ethics of a civil servant; liability of the subject of increased risk of corruption. That is, by their purpose, they played the role of a mechanism for combating corruption. This mechanism was specified in certain requirements and procedures. Taken together, all of these legitimate instruments constituted an anti-corruption mechanism as the only regulatory barrier to combating corruption offenses. However, in a broad sense, corruption as a socio-legal phenomenon, as we know, is to enrich certain categories of people, to obtain illegal income, invest it in facilities convenient for tax evasion, usually using protectionist ties. . Destructive enrichment and protectionism are the main signs of corruption. Transparency International’s Corruption Perceptions Index shows that Ukraine has hardly improved in recent years; Thus, in 2018-2020, the country shares 130-134th place along with several others among the 180 countries and territories assessed in the next annual report (see the website of Transparency International Ukraine. URL: https: // ti-ukraine. org / research / indeks-koruptsiyi-cpi-2017 /).
Usually a sign of corruption is the militancy of the political regime. Yes, of the ten most corrupt countries in the world (Ukraine is not one of them), five are the least peaceful. It is natural that the destructive enrichment of corruption-risky subjects, ie persons referred to in Art. 3 of the Law of Ukraine “On Prevention of Corruption” leads to increased corruption in society, which hinders the progress of society, preventing its potential achievements. Corruption disintegrates society, disrupts its cohesion, unity, direction.
In the context of the structure of illegality, corruption significantly opposes the implementation of the principles of statehood, hinders the state’s functions in the interests of society, because it accustoms education without education, health care without treatment, public finances without budget revenues, turns the economy into a black market and lawmaking – for ancillary service activities. Therefore, the state was faced with the issue of combating corruption not only in a narrowly repressive aspect, but in a broader socio-legal context. As you know, on November 5, 2020, the Verkhovna Rada of Ukraine adopted a bill № 4135 on the principles of state anti-corruption policy for 2020-2024 (Anti-Corruption Strategy), developed by the National Agency for Prevention of Corruption (see the official website of the NAPC. URL: https : //nazk.gov.ua/uk/departament-koordynatsiyi-antykoruptsijnoyi-polityky/antykoruptsijna-strategiya/). 320 people’s deputies of Ukraine voted for this decision. This decision of the parliament was a logical step, because this document could be a chance to establish a comprehensive anti-corruption system, to ensure its further development. At the time of the adoption of the Anti-Corruption Strategy, there were important arguments for its adoption. First, the implementation of the strategy, according to the developers, saved up to UAH 200 billion annually. Secondly, the strategy took into account the interests of all stakeholders in the fight against corruption, in particular, the project was agreed with 37 authorities, civil society institutions. Third, the areas in which the Strategy focuses on overcoming corruption have been identified. In general, these are the key areas: health, public sector, tax and customs, defense and security, customs, land relations, urban planning, construction of large infrastructure, justice, law enforcement and prosecutors. The next stage after the adoption of the bill in the second reading was planned to develop the NAPC detailed state program for implementation.

However, with the adoption of the well-known decision of the CCU, anti-corruption activities in the state stopped (see Decision 13-r / 2020 in the case of the constitutional petition of 47 deputies of Ukraine on the constitutionality of certain provisions of the Law of Ukraine “On Prevention of Corruption”). URL: https://www.ccu.gov.ua/docs/3260). It should be noted that the development of the Strategy and all activities of state bodies took into account the experience of foreign countries, in particular Poland. An analysis of the situation in the neighboring country shows that since October 2015, after the democratic parliamentary and presidential elections, the legislature and the executive have come under the de facto control of one political force, the United Right coalition led by Law and Justice. »In the Polish Parliament and President A. Duda, who is a native of this party. This is very similar to the situation in Ukraine in 2020. Thus, the legislature and the executive refused to publish the decision of the Constitutional Tribunal of Poland to invalidate the decision of the Polish Parliament to elect some judges of the Constitutional Tribunal of Poland. Moreover, officials of the executive and legislative branches of government have begun to say that the decisions of the Constitutional Tribunal are null and void, they are unconstitutional, so they cannot be enforced. Funding for the activities of the Constitutional Tribunal was limited. There was pressure on the judges of the Constitutional Tribunal and attempts to dismiss them; the appointment of new judges of the Constitutional Tribunal was accompanied by amendments to the procedure and procedure for consideration of cases by the Constitutional Tribunal in such a way that they could not be accepted without the participation of newly appointed or “new” judges of the Constitutional Tribunal. There were also changes in the procedure for electing the President of the Constitutional Tribunal to prevent his election from among the “old” judges, and so on. The executive even appealed to the Venice Commission to legitimize its legislative activity to “tame” the Constitutional Tribunal. However, the Venice Commission pointed out that the legislative and executive branches of government violated the principles of separation of powers and the rule of law. Eventually, the Polish parliament passed a new law on the Constitutional Tribunal, which retained all the basic provisions that, according to the Venice Commission, violated the principle of separation of powers. And it all stopped only after the end of the term of the “old” head of the Constitutional Tribunal and the “voluntary” resignation of some “old” judges of the Constitutional Tribunal, it was headed by “new” judges, new “judges”. Continuation of this crisis was a violation of the procedure for protection of the rule of law under Art. 7 of the Treaty on European Union, which applies in the event of a risk of a material breach by a Member State of common values, in particular such as democracy and the rule of law. According to Part 3 of Art. 7 of the Treaty on European Union (TEU), the application of this procedure may result in a decision to suspend certain rights of a Member State under the TEU, including the right to vote of the Member State’s government in the European Council. In the history of the European Union, this procedure has never been used before and the situation in Poland may be the first such case (see IS Yatsenko, lawyer, PhD, Doctor of Philosophy in Political Science. “Constitutional crisis or crisis of separation of powers? Polish experience and Ukrainian parallels. ”Website of the Yuridichnyi Visnyk Ukrainy newspaper. URL: https://yvu.com.ua/konstytutsijna-kryza-chy-kryza-podilu-vlady-polskyj-dosvid-ta-ukrayinski-paraleli/). It should be noted that legislative activity was partially halted by the decision of the European Union Justice Tribunal, which obliged the Polish authorities to reinstate all judges of the Supreme Court who were “retired” by the new laws. Another way of influencing the EU’s political situation was the redistribution of the EU budget, which is proposed to reduce Poland’s funding precisely because it violates the principles of the rule of law and separation of powers. Ukraine is not a member of the EU, but, in our opinion, we need to resolve this crisis situation, taking into account the experience of European countries. Ukrainian constitutional scholars, in particular, propose a way out of the constitutional crisis, which consists in taking a number of measures. Thus, G. Barabash quite boldly described the situation as an “anti-corruption default” from which to find a way out (see the website of the newspaper “Legal Bulletin of Ukraine. URL: https://yvu.com.ua/yurij-barabash-vid-konstytutsijnoyi- kryzy-do-antykoruptsijnogo-defoltu-potriben-zvorotnij-ruh /).

He singles out certain shortcomings that have contributed to the formation of a necessary and acceptable official doctrine in the state. First, from the very beginning, the Constitutional Court actively “advocated” for judicial independence, which it interpreted too broadly. At the same time, the question of the impossibility of reducing the judge’s remuneration came to the fore (according to estimates, there were at least 13 such decisions, – Ed.). This was gradually supplemented by legal positions on the possibility of exercising control over the activities of judges and courts exclusively by bodies of constitutional competence, which are built into the judiciary. The second problem is the formation of an official constitutional doctrine, namely a rather peculiar approach of the CCU to understanding the principle of separation of powers, when the very fact of existence outside the list of so-called “independent institutions” defined by the Constitution is denied. This concept of “independent institutions” was formed in, perhaps, almost the only country with a clear separation of powers – the United States. In the United States of America, with the executive power formally and effectively vertically subordinate to the President, these independent institutions, which exercise regulatory and supervisory powers, are allowed to function. The “victims” of such a doctrine were the National Commission for Public Utilities and NABU. It should be noted that the President of Ukraine V. Zelensky tried to standardize his powers at the constitutional level to appoint leaders of anti-corruption bodies, but such an initiative was blocked by the CCU for fear of creating a “parallel” executive branch. Thus, the court has deepened this problem even more, as it has become unclear what to do with these bodies, because, on the one hand, they must be returned to the “bosom” of the executive, and on the other – to control the judiciary have only independent executive institutions. Particular attention was drawn to the significant strengthening of the role of the NAPC after the adoption of one of these “turbo regime” acts, namely changes to the relevant law of October 2, 2019. Thus, it is clear that relations between the CCU and the government began to deteriorate in the summer of 2020, the first draft decisions of the CCU in the case of land reform appeared. It is impossible not to point out the unfortunate fact that the judge-rapporteur published the draft decision on one of the “land” cases. This decision provoked opposition not only from Ukrainians, but also from the negative reaction of Western partners, who see it as a step backwards in the fight against corruption in terms of the functioning of a holistic institutional mechanism to combat this problem. Thus, it is likely that the work of the CCU may actually be preserved. The co-optation of three new judges will not really give an opportunity to start active work of the court. At the same time, the authorities should understand that the decisions of the CCU should be treated with due respect, implemented, and not try to disperse the CCU when the decision is not liked. Yes, the Constitutional Court has extremely broad guarantees of independence today, including the impossibility of dismissing a judge by any entity other than the court itself. Probably, it is necessary to amend the Constitutions again in this part so as not to diminish its independence on the one hand, and to adjust the CCU to a constructive dialogue with other government institutions on the other. This was stated, in particular, in an interview with the newspaper Yurydychny Visnyk of Ukraine by ex-judge of the Constitutional Court Volodymyr Shapoval (see Volodymyr Shapoval: “The current constitutional crisis is a consequence of critical mistakes in the system of separation of powers.” URL: https://yvu.com .ua / volodymyr-shapoval). During 2021, all necessary changes should take place in order to restore a holistic anti-corruption mechanism.

1. The concept of “anti-corruption default” is quite legitimate, because it reflects an extremely acute crisis situation associated with the inability to combat anti-corruption, which was formed as a result of a counterproductive decision of the CCU.
2. Exit from anti-corruption default is impossible only due to the activity of one of the branches of government, because the phenomenon of default has a general political (power) component.
3. It is impossible to counteract the counterproductive decision of the CCU by “resetting” this constitutional institution.
4. The procedure and conditions for the selection of CCU judges, such as the competition for the selection of judges to the Supreme Court, need to be significantly updated. Only renewed on the principle of professional and charitable selection of judges, but not political (quota), the composition of the CCU can meet the constitutional requirements; these requirements should not be dominated by the corporate interests of Ukrainian judges.