UNCONSTITUTIONALITY DISTRIBUTION LAW OF UKRAINE “ON PREVENTION OF CORRUPTION” ON PUBLIC ORGANIZATIONS

According to the Law of Ukraine "On amendments to some laws of Ukraine concerning the characteristics of certain categories of financial control officials" from 23.03.2017 № 1975-19  Article 3 of the Law of Ukraine "On prevention of corruption" among other things, added with clause 5, according to which the subjects covered by this law are individuals who:

• receive funds, assets under implementation in Ukraine of programs (projects), technical or other, including irrevocable, aid in the prevention, combating corruption (both directly and through third parties or by any other means, provided an appropriate program (project )
• regularly for a year, perform work, provide services to implement standards on anti-corruption policy, monitoring of anti-corruption policy in Ukraine, to prepare proposals on the formation, implementation of such a policy - if funding (payment) of works and services carried out directly or through third parties due to technical or other, including irrevocable, aid in the prevention and combating of corruption;
• or are heads belonging to the highest governing body, other bodies of public associations and other non-business companies that carry out activities related to the prevention, combating corruption, implementation of standards in the field of anti-corruption policy, monitoring of anti-corruption policy in Ukraine, preparation of proposals on the formation, implementation of such a policy and / or participate, engage in activities related to the prevention, combating corruption.

Analysis indicated the norm in terms of the provisions of the Constitution of Ukraine  gives grounds to speak about these unconstitutional because of the following:

NGO, under Article 36 of the Constitution of Ukraine is an association of citizens of Ukraine to exercise and protect their rights and freedoms and satisfaction of political, economic, social, cultural and other interests.
According to Art. 24 of the Constitution of Ukraine, 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.

According to Article 36 of the Constitution of Ukraine, all associations of citizens are equal before the law.
Pinned these norms pluralism is a guarantee that all public organizations in Ukraine, regardless of their status, scope, objectives and targets are equal before the law. Contrary to specified provisions of the Constitution, the legislator confers additional responsibilities exclusively anti-corruption NGOs, due to the nature of internal belief of citizens who are members of NGOs.

In such a legislative approach does not take into account the legal position of the Constitutional Court of Ukraine, according to which the defining elements of the rule of law are the principles of equality and justice, legal certainty, clarity and nedvoznachnosti legal norms, as otherwise can not ensure its uniform application does not preclude unboundedness interpretation in enforcement practice and inevitably leads to tyranny (second paragraph of point 5.4, paragraph 5 of the reasoning part of the Constitutional Court of Ukraine dated September 22, 2005 N 5-rp / 2005 ) . The principle of legal certainty means that "restrictions of fundamental human rights and civil and implementation in practice these restrictions permissible only if the application to ensure predictability of legal norms installed such restrictions "(third paragraph of point 3.1, paragraph 3 of the reasoning part of the Constitutional Court of Ukraine on June 29, 2010 N 17-rp / 2010) .
In addition, referring to anti-corruption NGO actors declaration contradicts the very notion of corruption by the Law of Ukraine "On prevention of corruption."

According to Article 1 of the Law given Corruption - is the use of a person referred to in Article 3 of the Law given her official powers and related opportunities to obtain unlawful benefit or benefits of adopting such decision or promise / offer of such benefits for himself or other persons or under promise / offer or provide undue advantage to a person referred to in Article 3 of this Law, or at its request by another natural or legal person to persuade that person to unlawfully First use granted him authority and related opportunities.

Analysis indicated standards gives reason to believe that the NGO essentially devoid of basic criteria that may indicate the presence of corruption risks. Thus, non-governmental organizations:

• do not have the official authority or any administrative action, and therefore their activities can affect any social processes;
• not financed from the budget, and therefore not accountable to the relevant regulatory authorities;
• NGOs do not carry out organizational and administrative or administrative functions, as they are non-profit organizations.

Thus, individuals receiving funds as part of the assets in Ukraine programs (projects), technical or other, including irrevocable, benefits, and regardless of whether funding (payment) of works and services carried out directly, through a third party or by any other means, must be declared in accordance with Article 67 of the Constitution of Ukraine, according to which everyone must pay taxes and fees in the manner and amounts prescribed by law. All citizens annually file the tax inspection Declaration of residence on their property status and income over the past year in the manner prescribed by law.

The approach to the use of electronic declaration Institute actually contrary to the object of the Law of Ukraine "On Prevention of Corruption" is aimed at identifying a tool such as "Electronic Declaration" with the instrument of tax control as "general" tax declaration on property and income of a citizen of Ukraine. In other words, we believe that the risk lays gradual leveling of social and political importance of electronic declaration Institute .

Thus, the commitment of citizens who are not the person authorized to perform state functions or local government, and not treated as such persons do not fulfill the organizational and administrative or administrative duties, whose activity is purely advisory, research, advisory nature in the sphere of combating corruption or any other area to submit electronic declarations is so contrary to the Constitution of Ukraine.

Compliance with the Laws of the Constitution of Ukraine, and therefore recognition of their constitutionality or constitutionality, under Articles 147 and 150 of the Constitution of Ukraine and Ukraine's Constitutional Court decides.
According to paragraph 1 of Part 1 of Article 13 of the Law of Ukraine "On the Constitutional Court of Ukraine" The Constitutional Court of Ukraine adopts decisions and provides opinions in cases concerning the constitutionality of laws and other legal acts of the Verkhovna Rada of Ukraine.

The grounds for the Constitutional Court decision on the unconstitutionality of Ukraine acts in whole or in parts of them, in accordance with Article 15 of said law is the Constitution of Ukraine discrepancy or violation of the Constitution of Ukraine for their review, adoption or their entry into force.

Analysis of the Law of Ukraine "On amendments to some laws of Ukraine concerning the characteristics of certain categories of financial control officials" from 23.03.2017 № 1975-19, due to the above gives grounds to speak of the Constitution of Ukraine discrepancy made to the Law of Ukraine "On Prevention of Corruption "norms and abuse and established procedures for dealing with the given Law.

In particular analysis cards bill on amending Article 3 of the Law of Ukraine "On prevention of corruption" , gives reason to believe that the addition of point 5 of Article 3 of the Law of Ukraine "On Prevention of Corruption" is not properly processed parliamentary committee.

In view of this, we consider all available grounds for appeal to the Constitutional Court of Ukraine.
Subject to the provisions of Article 38 of the Constitution of Ukraine, it would be most appropriate to contact the Parliamentary Commissioner for Human Rights to initiate treatment in the form of constitutional appeal or apply to public organizations in the form of a constitutional appeal.

Ukraine Constitutional Court decides on the constitutionality of laws. If these acts or their provisions recognized as inconsistent with the Constitution of Ukraine (unconstitutional) they are declared invalid and null and void from the day the Constitutional Court of Ukraine decision on their unconstitutionality.