Monitoring of the trial in the case of the prosecutor Konstantin Kulik (court hearing 04/02/2020)

On April 2, 2020, a preparatory hearing was held in the Supreme Anti-Corruption Court in the case of the prosecutor Konstantin Kulik, who is charged with illegal enrichment under part 2 of article 368-2 of the Criminal Code of Ukraine.

On October 7, 2016, National Anti-Corruption Bureau’s (NABU) detectives completed a pre-trial investigation in criminal proceedings on the fact of illegal enrichment (part 2 of article 368-2 of the Criminal Code of Ukraine) by Konstantin Kulik. According to NABU, from 2011 to 2015, while serving in the prosecution authorities, Kulik made a profit of more than 1 million 670 thousand hryvnias. In addition, during the same period, Kulik’s expenses exceeded his income by 2.6 million hryvnias and amounted to about 3.4 million hryvnias. The case was sent to the Goloseevsky court of Kiev. In the spring of 2019, prosecutors filed a motion to close the criminal proceedings, substantiating it with the fact that the Constitutional Court of Ukraine, on the proposal of 59 members of the Parliament, by its decision of January 29, 2019 declared part 2 of article 368-2 unconstitutional (recall that Kulik was charged with this article), prosecutors referred to paragraph 4 of Part 1 of Art. 284 of the Code of Criminal Procedure of Ukraine, according to which criminal proceedings should be closed in the event of the entry into force of a law which abolished criminal liability for an act committed by a person. The Goloseevsky court did not approve the application, since the Code of Criminal Procedure of Ukraine does not give it the authority to close criminal proceedings at the stage of judicial review on the basis of this circumstance. So, the case in the Goloseevsky court “was motionless” until the beginning of 2020. In other words, for almost a year the district court considered criminal proceedings on which the decision is obviously clear – an acquittal, since it is not possible to accuse a person according to an article recognized as unconstitutional. ISHR experts express their concern about this fact, since national courts are extremely overloaded, by opening the judicial authority’s website, you can see that many court hearings are scheduled for 2021-2022. The court does not have the opportunity to study dozens of volumes of case materials, to hold court hearings only because the legislator has not thought out the mechanism for closing criminal proceedings on the basis of a decision of the Constitutional Court at the stage of judicial consideration.

In the case of Kulik, it was possible to get out of the vicious circle formed in connection with a conflict in national legislation. On September 5, 2019, the Supreme Anti-Corruption Court (HACC) began its work, under whose jurisdiction all corruption offenses fall, in particular, the Kulik case. The HACC reviews cases from the very first stage, that is, from the preparatory hearing (at which the court has the right to decide on the closure of the criminal proceedings). According to the report on the auto-distribution of cases between judges, on January 17, 2020, a board was determined in the HACC to consider the case of K. Kulik.

So, on April 2, during a preparatory hearing, the prosecutor filed a motion to close the criminal proceedings, citing the unconstitutionality of the article imputed to the accused. The defense supported this request, in addition, it filed its request to cancel the arrests of the bank accounts of the accused. The court granted all the applications submitted and, by its decision, closed the criminal proceedings.

ISHR experts would like to express their concern about the situation for several reasons.

Firstly, once again, the ISHR in the process of its monitoring faces significant gaps in national legislation: the lack of a mechanism for closing criminal proceedings at the stage of judicial review due to the recognition of a norm as unconstitutional. Earlier, we noted the unresolved issue at the legislative level of the exchange within the “Normandy format” (the case of ex-Berkut officers) and the use of the agreement on the provision of international legal assistance in criminal cases in the case of V. Yanukovych.

Secondly, the closure of the criminal proceedings with reference to Clause 4, Part 1, Article 284 of the Criminal Code of Ukraine is doubtful, since it refers to the entry into force of the law, which repeals criminal liability, and not the decision of the Constitutional Court. The latter is a body of constitutional jurisdiction and ensures the supremacy of the Constitution of Ukraine but does not issue laws. The legislative function is entrusted to the Verkhovna Rada (Parliament) of Ukraine, which means that the decision of the Constitutional Court does not fall under clause 4 part 1 of article 284 of the Criminal Code of Ukraine. Consequently, the legislator needs to resolve this issue by making appropriate amendments to the Code of Criminal Procedure of Ukraine and provide the courts with the opportunity to operate using the rules that govern a particular legal fact, rather than confuse the courts due to legislative gaps. Note that only the substantive law norms are not retroactive, this principle does not apply to procedural legislation. That confirms the case-law of the ECtHR. Thus, the Court found that the rules on retroactive effect of the law only apply to provisions defining crimes and the corresponding punishments. As a general rule, they are not applicable to procedural legislation, the direct application of which in accordance with the principle of tempus regit actum (the duration of the law) seems appropriate to the Court (“Skoppola v. Italy” No. 2, paragraph 110).