The importance of being consistent
The Constitutional Court of Ukraine ruled Article 368-2 of the Criminal Code of Ukraine unconstitutional. One of the grounds was the conclusion, that provisions of Article 368-2 of the Criminal Code of Ukraine do not comply with the “quality” of the law.
Given that Article 212 of the Criminal Code of Ukraine (tax evasion) has significant quality problems, the ruling of the Constitutional Court of Ukraine in case No. 1-р/2019 creates such conditions, that Article 212 of the Criminal Code of Ukraine may be ruled unconstitutional.
More details on “quality” problems of Article 212 of the Criminal Code of Ukraine are available by the link.
Below we provide legal grounds stated in the ruling of the Constitutional Court of Ukraine, which can be used to declare unconstitutional any provision of the Criminal Code of Ukraine, that does not comply with the “law quality”:
The Ruling of the Constitutional Court of Ukraine as of February 26, 2019 in case No. 1-р/2019
3. Legal certainty is one of the main elements of the rule of law principle stipulated in part 1 of Article 8 of the Ukrainian Fundamental Law. The Constitutional Court of Ukraine underlined the importance to demand the certainty, clarity and unambiguousness of the legal provision, since otherwise cannot provide its equal application and does not eliminate an undefined interpretation within the law enforcement practice, and inevitably leads to the iniquity (paragraph 2 of subpara. 5.4 of para. 5 of the analytical part of Ruling as of September 22, 2005 in case No. 5-рп/2005).
The European Court of Human Rights in its judgement in case of Soldatenko v. Ukraine as of October 23, 2008 stated, that when it comes to liberty deprivation – the extremely important condition is the provision of legal certainty general principle, and also emphasized, that para. 1 of Article 5 of the European Convention on Human Rights as of 1950 does not just give the reference to the national law, but relates to the “law quality”, requiring the law to comply with the rule of law principle; herewith, the “law quality” means, that when the national law foresees the possibility of liberty deprivation, such a law shall be sufficiently available, precise and foreseeable in its application for the purpose of elimination of the any risk of iniquity (para. 111).
Meeting the requirements of clarity and unambiguousness of legal provisions, that provide criminal responsibility, is particularly important in terms of the special nature of a criminal law and consequences of bringing to criminal responsibility, since bringing to such a kind of criminal responsibility is related to possible significant restrictions of human rights and freedoms.
… criminal charges cannot be based on illegally gathered evidences, as well as on assumptions; all and any assumptions related to proof of an individual’s guilt shall be interpreted in an individual’s favor (part 1, 2, 3 of Article 62 of the Constitution of Ukraine).
Given the above, the Constitutional Court of Ukraine concluded that Article 3682 of the Criminal Code of Ukraine does not comply with requirements of clarity, precision and unambiguousness, therefore, it contradicts to the legal certainty being a part of rule of law principle stipulated in Article 8 of the Constitution of Ukraine.
7. While solving this case the Constitutional Court of Ukraine proceeds from the fact that the legislative definition of the features of illegal enrichment, given in Article 3682 of the Criminal Code of Ukraine, does not comply with a legal certainty principle.
Ukraine, as a state governed by the rule of law according to Article 1 of the Constitution of Ukraine, shall provide crime prevention exclusively by legal means with the strict compliance with human rights and freedoms. This fully applies to the implementation of the exclusive legislative function of the Verkhovna Rada of Ukraine in terms of legal determination of actions deemed to be criminal offences (para. 22 of part 1 of Article 92 of the Constitution of Ukraine). In such events, when the law foresees the criminal responsibility, the requirement of clarity and unambiguousness of such a law is crucial in determining its compliance with a legal certainty.
Therefore, the Constitutional Court of Ukraine concluded, that Article 3682 of the Criminal Code of Ukraine does not comply with the requirement of a legal certainty being a part of rule of law constitutional principle (part 1 of Article 8 of the Constitution of Ukraine), since the description of this legal provision is not clearly formulated and allows for ambiguous understanding, interpretation
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.
Decriminalization of Art. 205 of the Criminal Code of Ukraine and changes to Art. 212 of the Criminal Code of Ukraine – increasing of taxes non-payment thresholds that may lead to criminal prosecution
What are the practical implications for current cases?
Increased liability on tax evasion
and some other crimes,
some other important changes of the Law on Amendments on Simplifying the Pre-Trial Investigation of Certain Categories of Criminal Offences
How to Distinguish between Disputable Tax Matters and Criminal Tax Evasion
Criminal proceedings on tax evasion in 2018 – what was year-end closing?
Thresholds of criminal liability under Art. 212 of the Criminal Code of Ukraine in 2019
Cassation Administrative Court is applying to the Grand Chamber: urgent questions and results