On the Issue Regarding the Presumption of Innocence as a False Problem in the Fight against Corruption

Ukraine is trying to effectively counteract corruption not only through the creation and further maintenance of such institutions as the National Anti-Corruption Bureau of Ukraine, the Specialized Anti-Corruption Prosecutor's Office of the General Prosecutor's Office of Ukraine, the National Anti-Corruption Court, but also by improving criminal legislation. An example of this was Art. 368-2 of the Criminal Code of Ukraine as amended on 11/10/2015, which, however, after a short period of time was declared unconstitutional and lost force. As a result, due to the application of retroactive force of the criminal law in time, namely part 1 of Art. 5 of the Criminal Code of Ukraine, all criminal proceedings for committing a criminal offense under Art. 368-2 of the Criminal Code of Ukraine as amended on 11/10/2015, were closed on a non-rehabilitative basis, provided for in paragraph 4 of Part 1 of Art. 284 of the Criminal Procedure Code of Ukraine (hereinafter - the CPC of Ukraine).

Now in Ukraine, the fight against the acquisition of assets by officials in excess of the legal income of the latter continues, because the Criminal Code of Ukraine has been supplemented by the legislator with Art. 368-5 in accordance with Law No. 263-IX of October 31, 2019, which contains a new version of such a criminal offense as illegal enrichment.

The scientific article compares two versions of the norm of the law on criminal liability for illegal enrichment, namely Art. 368-2 of the Criminal Code of Ukraine as amended on 11/10/2015, which is recognized as such that does not comply with the Constitution of Ukraine (unconstitutional) and Art. 368-5 of the Criminal Code of Ukraine. The grounds for recognizing Art. 368-2 of the Criminal Code of Ukraine as amended on 11/10/2015 is such that it does not comply with the Constitution of Ukraine. The article considers the criminalization of illegal enrichment in the national legislation through the aspect of compliance of such a tort with the principle of the presumption of innocence and clarifies the effectiveness of the functioning of this norm in accordance with the modern doctrine of criminal law. The international practice in resolving the issue of compliance of illegal enrichment with the principles of the rule of law and the presumption of innocence is indicated. The aim of the work is to analyze two articles of the Criminal Code of Ukraine regarding illegal enrichment, namely Art. 368-2 of the Criminal Code of Ukraine as amended on November 10, 2015, which is recognized as inconsistent with the Constitution of Ukraine (unconstitutional), according to the decision of the Constitutional Court No. 1-r / 2019 dated February 26, 2019 and Art. 368-5 of the Criminal Code of Ukraine, as well as establishing their compliance with Art. 20 of the UN Convention against Corruption. The question about the effectiveness and appropriateness of the institution of illegal enrichment in the system of national legislation of Ukraine has been raised. In addition, experience of the Republic of Lithuania and the Republic of Moldova in resolving the issue of compliance with the principles of the rule of law and the presumption of innocence of articles on illicit enrichment in the aforementioned countries has been studied.