Ukraine: Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

Warsaw, 18 September 2026 Opinion-Nr.: JUD-UKR/570/2026 [TN]

OPINION ON THE DRAFT PROCEDURE FOR MONITORING THE LIFESTYLE OF A JUDGE OF THE CONSTITUTIONAL COURT OF UKRAINE

UKRAINE This Opinion has benefited from contributions made by Dr. Kyela Leaky, Independent Expert on Judicial Independence, Accountability, Integrity and Good Governance. Dr. Tilman Hoppe, Independent Expert on Anti- Corruption, provided background information on the anti-corruption system of Ukraine.

Based on an unofficial English translation of the Draft Procedure commissioned by the OSCE Office for Democratic Institutions and Human Rights.

OSCE Office for Democratic Institutions and Human Rights

Ul. Miodowa 10, PL-00-251 Warsaw Office: +48 22 520 06 00 www.legislationline.org  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

EXECUTIVE SUMMARY AND KEY RECOMMENDATIONS

Effective measures to prevent corruption within the judiciary constitute an important safeguard for the integrity, accountability and independence of the judiciary, which are indispensable to the effective protection of human rights, the rule of law and equal access to justice for all, and are fundamental to maintaining public trust in the judiciary. International human rights instruments require States to design and implement effective accountability mechanisms, including integrity and anti-corruption measures. At the same time, they should be carefully designed and implemented to enhance integrity and accountability without undermining judicial independence or exposing judges to undue pressure, interference, or arbitrary sanctions that could undermine their independence. In particular, international standards require States to consider making illicit enrichment a crime and to confiscate illicit wealth. Lifestyle monitoring constitutes one of the tools that can help detect illicit enrichment and unexplained wealth. However, where lifestyle monitoring of judges is introduced within a national anti- corruption national legal framework, the design and implementation of lifestyle monitoring procedures must respect judicial independence and individual judges applicable civil and political rights, and must not be used as a means of exerting pressure on judges or influencing their decision-making. Decision 13-r/2020 of 27 October 2020 of the Constitutional Court of Ukraine (CCU) declared unconstitutional several provisions of the Law of Ukraine on Prevention of Corruption (LPC) – including provisions related to the lifestyle monitoring of CCU judges – on the grounds that they did not comply with the constitutional principles of judicial independence. Following this decision, the Verkhovna Rada introduced additional procedural safeguards specifically applicable to the lifestyle monitoring of ordinary court judges and CCU judges. The Draft Procedure under review aims to operationalize these procedural safeguards by setting out the procedural modalities according to which the National Agency on Corruption Prevention (NACP) conducts lifestyle monitoring of CCU judges. In particular, the Draft Procedure regulates the initiation and timeline of the lifestyle monitoring procedure, the notification of the Chairperson of the CCU, the approval of results of lifestyle monitoring, as well as the procedures to be followed when signs of corruption-related offences are detected as a result of lifestyle monitoring. Importantly, the Draft Procedure foresees that, while CCU judges benefit from additional procedural safeguards, the scope, substance, and depth of the lifestyle monitoring applicable to them remain identical to those applicable to other public officials International anti-corruption standards do not specifically call on States to establish lifestyle monitoring procedures for public officials. Rather, they require States to establish necessary measures to prevent corruption – including within the judiciary – which may include lifestyle monitoring among other integrity and financial control mechanisms. Accordingly, the decision whether to introduce

2  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

lifestyle monitoring for public officials within a national anti-corruption framework remains within the discretion of each State. In addition, while Article 11.1 of the UN Convention against Corruption (UNCAC) requires States Parties to take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary, international standards do not require the establishment of distinct, separate corruption prevention procedures for judges, provided that the applicable procedures do not undermine judicial independence. The Ukrainian legislator may see reasons to provide additional procedural guarantees for CCU judges during the lifestyle monitoring procedure, as long as it is ensured that CCU judges are not subject to less stringent or narrower forms of verification than other public officials in similar situation. Certain aspects of the Draft Procedure would benefit from greater clarity. In particular, ambiguities remain with regard to the practical operation of certain procedural safeguards, the criteria governing internal decision-making and approvals of results of lifestyle monitoring by the Head or Deputy Head of the NACP, and the absence of clear cross-references to applicable legislation when referring to corruption-related offences. More specifically, and in addition to what is stated above, ODIHR makes the following recommendations to further enhance the compliance of the Draft Procedure with applicable regional and international human rights standards and OSCE commitments: A. Unless regulated elsewhere in which case cross-reference to applicable law or regulation should be included, to supplement the Draft Procedure, or other relevant law or regulation, with provisions governing the NACP’s obligations and procedures for examining, responding to, and addressing “mandatory petitions” submitted by the Assembly of Judges of the Constitutional Court based on evidence of suspected unlawful influence, pressure or interference on a CCU judge during lifestyle monitoring, while ensuring that the design and operation of this mechanism do not impair the independence of the NACP; [para. 50] B. Regarding the initiation of lifestyle monitoring of a CCU judge: 1. To more precisely define the scope of the preliminary check, and specify who is in charge of this preliminary check; [para. 62] 2. Unless regulated elsewhere, to supplement the Draft Procedure with a provision requiring that lifestyle monitoring cases are assigned to NACP staff either through a random selection process or through an automated allocation based on objective criteria such as, for example, alphabetical or chronological order; [para. 65] C. Regarding the approval of the results by the Head of Deputy Head of the NACP: 1. To align articles 14 and 15 of the Procedure with article 522.3 of the LPC by specifying that the memorandum on the results of the lifestyle monitoring 3  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

of a CCU judge should be approved by the Head or the Deputy Head of the NACP; [para. 79] 2. To specify in the draft procedure a timeline for the preparation of the memorandum on the results, its submission to the Head or Deputy Head of the NACP, and its approval by the Head or Deputy Head of the NACP; [para. 80] 3. Unless regulated elsewhere, to specify in the Draft Procedure the grounds on which the Head or the Deputy Head of the NACP may refuse to approve the memorandum on the results of the lifestyle monitoring, and require that such refusal be accompanied by a reasoned justification; [para. 81] D. Regarding the procedure when signs of corruption-related offence are detected; 1. Unless regulated elsewhere, to specify in the Draft Procedure the grounds on which the Head or the Deputy Head of the NACP may refuse to approve the reasoned conclusions in cases involving signs of “another corruption- related offence” and require that such refusal be accompanied by a reasoned justification; [para. 88] 2. To specify in the draft procedure a timeline for the Head or Deputy Head of the NACP to undertake the follow-up actions required once signs of corruption-related offence have been identified as a result of lifestyle monitoring; [para. 89] These and additional Recommendations are included throughout the text of this Opinion, highlighted in bold.

As part of its mandate to assist OSCE participating States in implementing their OSCE human dimension commitments, ODIHR reviews, upon request, draft and existing laws to assess their compliance with international human rights standards and OSCE commitments and provides concrete recommendations for improvement.

4  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

TABLE OF CONTENTS

I. I NTRODUCTION ...................................................................... 6 II. S COPE OF THE O PINION .......................................................... 6 III. L EGAL A NALYSIS AND R ECOMMENDATIONS ............................. 7 1. Relevant International Human Rights Standards and OSCE Human Dimension Commitments ................................................................................................................. 7 2. Background ..................................................................................................................... 9 National Legal Framework Governing Illicit Enrichment and Unexplained Assets… ................................................................................................................ 10 National Legal Framework Regulating the Conduct of Lifestyle Monitoring of Public Officials and Constitutional Court Judges by the NACP ....................... 11 Context: Decision 13-r/2020 of the Constitutional Court of Ukraine and Ensuing Legal Reforms ...................................................................................................... 13 Overview of the NACP’s Practice of Monitoring the Lifestyle of Public Officials… ............................................................................................................ 14 3. Legal Basis of the Draft Procedure ............................................................................. 15 4. Definition of Income and Method for Calculating Unexplained Wealth (Articles 2 and 3) ............................................................................................................................. 16 5. Additional Procedural Guarantees for CCU Judges Provided in Article 522 of the LPC and their Operationalization in the Draft Procedure ...................................... 17 6. Prohibition of “Unlawful Influence, Pressure or Interference” in the Activities of a Judge During Full VerificationLifestyle Monitoring (Article 4) .............................. 18 7. Aim of Lifestyle Monitoring of CCU Judges (Article 5) ........................................... 18 8. Equal Scope of Lifestyle Monitoring .......................................................................... 19 9. Restricted Access to Lifestyle Monitoring Information and Its Result (Article 6). 19 10. Initiation and Duration of Lifestyle Monitoring of a CCU Judge (Articles 7 to 11)….. ............................................................................................................................. 20 Initiation of Lifestyle Monitoring ........................................................................ 20 Assignment of Responsibilities among NACP Departments and NACP Staff Members to Conduct Lifestyle Monitoring ......................................................... 20 Notification of the Chairperson of the CCU ........................................................ 21 Time Limits of Lifestyle Monitoring of a CCU Judge......................................... 21 11. Results of the Lifestyle Monitoring and Further Actions (Articles 13 to 20) ........ 22 Right of Response of the CCU judge (Article 13) ................................................ 23 Approval of the Results by the Head or Deputy Head of the NACP (Articles 14 and 15).. ................................................................................................................ 23 Information of the Results to the Chairperson of the CCU (Article 16) ............ 24 Procedure When Signs of Corruption-Related Offences are Detected (Articles 17, 18 and 19) ............................................................................................................. 25 ANNEX 1: Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine ANNEX 2: Comparison of the (General) Procedure for Monitoring the Lifestyle of Public officials (NACP Decree n236/23) and the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine 5  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

I. INTRODUCTION

2. On 7 January 2026, the Acting Chair of the Constitutional Court of Ukraine (hereinafter “CCU”) sent to the OSCE Office for Democratic Institutions and Human Rights (hereinafter “ODIHR”) a request for a legal review of the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine developed by the National Agency on Corruption Prevention (hereinafter “the Draft Procedure”). 3. On 12 January 2026, ODIHR responded to this request, confirming the Office’s readiness to prepare a legal opinion on the compliance of the Draft Procedure with international human rights standards and OSCE human dimension commitments. 4. This Opinion was prepared in response to the above request. ODIHR conducted this assessment within its mandate to assist the OSCE participating States in the implementation of their OSCE human dimension commitments.1

II. SCOPE OF THE OPINION

5. The scope of this Opinion covers only the Draft Procedure submitted for review, which further elaborates, supplements and operationalizes the specific aspects of monitoring the lifestyle of Constitutional Court judges set out in Article 522 of the Law of Ukraine on Prevention of Corruption (hereinafter “the LPC”).2 Therefore, this Opinion also references relevant provisions of Article 522 of the LPC, where appropriate. The scope of this Opinion does not constitute a full and comprehensive review of the entire legal and institutional framework regulating the monitoring of the lifestyle of Constitutional Court judges in Ukraine and the prevention of corruption within the judiciary. 6. The Opinion raises key issues and provides indications of areas of concern. In the interest of conciseness, it focuses more on those provisions that require amendments or improvements than on the positive aspects of the Draft Procedure. The ensuing legal analysis is based on international and regional human rights and rule of law standards, norms and recommendations as well as relevant OSCE human dimension commitments. The Opinion also highlights, as appropriate, good practices from other OSCE participating States in this field. When referring to national legislation, ODIHR does not advocate for any specific country model; it rather focuses on providing clear information about applicable international standards while illustrating how they are implemented in practice in certain national laws. Any country example should always be approached with caution since it cannot necessarily be replicated in another country and has always to be considered in light of the broader national institutional and legal framework, as well as country context and political culture.

1 See especially OSCE Decision No. 7/08 Further Strengthening the Rule of Law in the OSCE Area (2008), point 4, where the Ministerial Council “[e]ncourages participating States, with the assistance, where appropriate, of relevant OSCE executive structures in accordance with their mandates and within existing resources, to continue and to enhance their efforts to share information and best practices and to strengthen the rule of law [on the issue of] independence of the judiciary, effective administration of justice, right to a fair trial, access to court, accountability of state institutions and officials, respect for the rule of law in public administration, the right to legal assistance and respect for the human rights of persons in detention […]”. See also e.g., the 1999 OSCE Istanbul Document, 19 November 1999, para. 33: “Participating States pledge to strengthen their efforts to combat corruption and the conditions that foster it, and to promote a positive framework for good government practices and public integrity”; and OSCE, Declaration on Strengthening Good Governance and Combating Corruption, Money-Laundering and the Financing of Terrorism, MC.DOC/2/12, Dublin, 2012 2 Law of Ukraine on the Prevention of Corruption, enacted on 14 October 2014 and last amended on 17 September 2025, Article 522 6  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

7. Moreover, in accordance with the Convention on the Elimination of All Forms of Discrimination against Women3 (hereinafter “CEDAW”) and the 2004 OSCE Action Plan for the Promotion of Gender Equality4 and commitments to mainstream gender into OSCE activities, programmes and projects, the Opinion integrates, as appropriate, a gender and diversity perspective. 8. This Opinion is based on an unofficial English translation of the Draft Procedure commissioned by ODIHR, which is attached to this document as an Annex. Errors from translation may result. Should the Opinion be translated in another language, the English version shall prevail. 9. In view of the above, ODIHR would like to stress that this Opinion does not prevent ODIHR from formulating additional written or oral recommendations or comments on respective subject matters in Ukraine in the future.

III. LEGAL ANALYSIS AND RECOMMENDATIONS

1. RELEVANT INTERNATIONAL HUMAN RIGHTS S TANDARDS AND OSCE HUMAN DIMENSION COMMITMENTS

10. Several international human rights instruments and OSCE commitments are relevant to the establishment of a procedure for monitoring the lifestyle of constitutional court judges, including with respect to judicial independence and accountability, prevention of corruption and illicit enrichment, and the right to respect for private and family life. 11. For a detailed overview of the applicable international and regional human rights standards and OSCE commitments with respect to judicial independence and accountability, prevention of corruption in the judiciary, and the right to respect for private and family life, reference is made to the ODIHR Opinion on the Draft Procedure for Conducting a Full Verification of the Asset Declarations Submitted by Judges of the Constitutional Court of Ukraine.5 Accordingly, this Section of the present Opinion further elaborates only on the relevant international and regional standards with regard to illicit enrichment and lifestyle monitoring of public officials not already covered in the ODIHR Opinion. 12. Sanctioning illicit enrichment and confiscating illicit wealth is a core part of international anti-corruption standards. The UN Convention against Corruption (hereinafter “UNCAC”) calls on States Parties to consider establishing illicit enrichment as a crime, when committed intentionally, which it defines as “a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income” (Article 20 of the UNCAC).6 The UNCAC further requires States Parties to take the necessary measures to identify and confiscate “proceeds of crime derived from offences established in accordance with this Convention” (Article 31.1-2). The UNCAC also opened the possibility of shifting the burden of proof, stating that States Parties may “consider the possibility of requiring that an offender demonstrate the lawful origin of such alleged proceeds of crime or other property liable to confiscation” (Article 31.8 of

3 UN Convention on the Elimination of All Forms of Discrimination against Women (hereinafter “CEDAW”), adopted by General Assembly resolution 34/180 on 18 December 1979. Ukraine deposited its instrument of ratification of this Convention on 12 March 1981. 4 See OSCE Action Plan for the Promotion of Gender Equality, adopted by Decision No. 14/04, MC.DEC/14/04 (2004), para. 32. 5 See OSCE/ODIHR, Opinion on the Draft Procedure for Conducting a Full Verification of the Asset Declarations Submitted by Judges of the Constitutional Court of Ukraine, 27 February 2026, Section III.1 6 UN Convention against Corruption (UNCAC), Article 20. Ukraine ratified the UNCAC on 2 December 2009. 7  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

the UNCAC). At the Council of Europe (CoE) level, the 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime requires member States to confiscate instrumentalities and proceeds of crime.7 The European Commission for Democracy through Law (Venice Commission) has also endorsed civil forfeiture of unexplained wealth as an acceptable tool not only in respect of criminal assets but also assets that had been obtained in an otherwise illegal way, provided that sufficient substantive and procedural safeguards are in place to achieve a fair balance between the public interests involved and the legitimate interests of the persons targeted by the forfeiture measures.8 13. Given the European Union (EU) candidate status of Ukraine and the opening of ‘Cluster 1: Fundamentals’ of the EU accession negotiations, which focuses inter alia on the functioning of democratic institutions, rule of law and public administration reform, an effective fight against corruption is of paramount importance.9 EU instruments require member States to criminalize enrichment from corruption offences, and to take the necessary measures to confiscate proceeds of crime. EU Directive 2026/1021 provides that “enrichment by corruption offences should be criminalized”.10 EU Directive 2014/42 requires EU member States to “adopt the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct.”11 In addition, EU Directive 2024/1260 on asset recovery and confiscation requires member States to “take the necessary measures to enable, where, in accordance with national law, the confiscation measures of Articles 12 to 15 may not be applied, the confiscation of property identified in the context of an investigation in relation to a criminal offence, provided that a national court is satisfied that the identified property is derived from criminal conduct committed within the framework of a criminal organization and that conduct is liable to give rise, directly or indirectly, to substantial economic benefit”, taking into account “all the circumstances of the case, including the available evidence and specific facts, which may include: (a) that the value of the property is substantially disproportionate to the lawful income of the affected person”.12 14. A comparative analysis of different laws on illicit enrichment and practice of their application, shows that one of the common features of criminal laws on illicit enrichment is that such laws do not require to demonstrate that a person has already been convicted of a criminal offence, that any underlying or separate criminal activity has even taken place or that any wealth was probably derived from crime; neither the prosecution nor the court are obliged to establish the source of generating these goods and establish that

7 See Council of Europe, Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, 1990, Article 2. Ukraine ratified the Convention on 26 January 1998. 8 See Venice Commission, Amicus Curiae Brief for the Constitutional Court of Armenia on Certain Questions Relating to the Law on the Forfeiture of Assets of Illicit Origin, CDL-AD(2022)048, paras. 25-27. 9 See European Commission, Commission Staff Working Document – Ukraine 2025 Report, SWD(2025) 759 final, 4 November 2025, Section 2.2.1. 10 See European Union, Directive 2026/1021 of the European Parliament and of the Council of 29 April 2026 on combatting corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union and amending Directive (EU) 2017/1371 of the European Parliament and of the Council, preamble paras. 9, 19 and 20, and Article 9. 11 See European Union, Directive 2014/42 of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (consolidated), Article 5. 12 See European Union, Directive 2024/1260 of the European Parliament and of the Council of 24 April 2024 on asset recovery and confiscation, Article 16. 8  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

a separate or underlying criminal offence (such as bribery, embezzlement, abuse of functions or drug trafficking) has been committed.13 15. It is noted that while the UNCAC defines illicit enrichment as the “intentional” and “significant” increase of the assets of a “public official” that cannot be explained in relation to his or her lawful income, many jurisdictions have adopted a broader definition and do not necessarily specify that the enrichment needs to be “intentional” or “significant”, or that it can only be committed by public officials. 14 In addition, this concept is also sometimes referred to as “unexplained wealth”. Furthermore, while some countries criminalize illicit enrichment, thereby allowing for confiscation and additional criminal sanctions, other jurisdictions rely on civil confiscation procedures that allow for the civil sanction of civil forfeiture of illicit assets. Some jurisdictions combine both approaches, treating illicit enrichment below a certain threshold through civil confiscation procedures while criminalizing it when the discrepancy between lawful income and wealth exceeds a specified amount, as is the case in Ukraine (see paras. 20- 22 infra). The introduction of illicit enrichment laws often gives rise to legal debates, particularly concerning its compliance with the right to a fair trial, the principles of presumption of innocence, legality of the offence, and ne bis in idem and the right to property.15 16. The monitoring of the lifestyle of public officials constitutes one of the tools that can help detect unexplained wealth and potential illicit enrichment. International anti- corruption standards do not specifically call on States to establish lifestyle monitoring procedures. Rather, they require States to establish necessary measures to prevent corruption, which may include lifestyle monitoring among other integrity and financial control mechanisms. Accordingly, the decision whether to introduce lifestyle monitoring for public officials within a national anti-corruption framework remains within the discretion of each State. 17. In addition, while Article 11.1 of the UNCAC requires States Parties to take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary, international standards do not require the establishment of distinct, separate corruption prevention procedures for judges, provided that the applicable procedures do not undermine judicial independence.

2. BACKGROUND

18. For a detailed overview of the national legal framework regulating the status, independence and accountability of Judges of the CCU, reference is made to the ODIHR Opinion on the Draft Procedure for Conducting a Full Verification of the Asset Declarations Submitted by Judges of the Constitutional Court of Ukraine.16 19. Accordingly, this section of the present Opinion elaborates further certain aspects not addressed in the 2026 ODIHR Opinion, including the national legal framework governing illicit enrichment and unexplained assets (Section 2.1), the national legal framework regulating the lifestyle monitoring of public officials and constitutional court judges

13 See ODIHR and Venice Commission, Joint Amicus Curiae Brief Relating to the Offence of Illicit Enrichment – Republic of Moldova, CDL-AD(2022)029, para. 51, and references therein: Andrew Dornbierer, Illicit Enrichment: a Guide to Laws Targeting Unexplained Wealth, Basel Institute of Governance 2021, p. 11. 14 Ibid. 15 See e.g., ODIHR and Venice Commission, Joint Amicus Curiae Brief Relating to the Offence of Illicit Enrichment – Republic of Moldova, CDL-AD(2022)029, Section IV.A; and Venice Commission, Amicus Curiae Brief for the Constitutional Court of Armenia on Certain Questions Relating to the Law on the Forfeiture of Assets of Illicit Origin, Opinion 1108/2022 CDL-AD(2022)048, para. 19. 16 See OSCE/ODIHR, Opinion on the Draft Procedure for Conducting a Full Verification of the Asset Declarations Submitted by Judges of the Constitutional Court of Ukraine, 27 February 2026, section III.1 9  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

(Section 2.2), further context background with Decision 13-r/2020 of the CCU and ensuing legal reforms (Section 2.3), as well as an overview of the NACP’s practice of monitoring the lifestyle of public officials (Section 2.4).

National Legal Framework Governing Illicit Enrichment and Unexplained Assets

20. Article 368-5 of the Criminal Code of Ukraine establishes criminal liability for the acquisition by a public official of “assets the value of which exceeds his/her lawful income by more than six thousand and five hundred tax-free minimum incomes”,17 i.e., currently UAH 10,816,000 (approximately EUR 209,000),18 which “shall be punishable by imprisonment for a term of five to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years”. Articles 96-1 and 96-2 of the Criminal Code also provide for the possibility to apply the forfeiture of illicitly acquired assets. The provision applies not only to the direct acquisition of assets by a public official, but also the acquisition of assets by another individual or legal entity on behalf of a public official, as well as situations where a public official may directly or indirectly commit actions over such assets equivalent to the right of disposal (Article 368- 5.2 of the Criminal Code). The Criminal Code provides a broad definition of assets, which comprise “money (including cash, funds in bank accounts or in custody in banks or other financial institutions), other property, property rights, intangible assets, including cryptocurrencies, the amount of reduction of financial obligations, as well as works or services” (Article 368-5.3 of the Criminal Code). Article 368-5.4 of the Criminal Code specifies that “lawful income” shall mean income lawfully received by a person from legal sources as defined in Article 46.7 and 46.8 of the Law on Prevention of Corruption (hereinafter “LPC”). Cases of alleged illicit enrichment are adjudicated by the High Anti- Corruption Court (hereinafter “HACC”).19 21. In addition to the criminal offence of illicit enrichment, the Civil Procedure Code of Ukraine (hereinafter “the CPC”) provides for a distinct procedure for the recognition of assets as “unfounded” (hereinafter translated as “unexplained”) and for their forfeiture (Articles 290 and 291 of the CPC). This civil forfeiture applies to cases in which the discrepancy between a public official’s legal income and the value of his/her assets is equal to or exceeds seven hundred and fifty times the tax-free minimum income, but remains below the above-mentioned threshold required for the crime of illicit enrichment (Article 290.2 of the CPC), i.e., currently an amount exceeding UAH 1,248,000 (approximately EUR 24,000) up to UAH 10,816,000 (approximately EUR 209,000). Within this minimum and maximum threshold, asset forfeiture can be ordered even in the absence of a criminal conviction, as no proof of crime is needed to trigger civil forfeiture procedure. In addition, Article 290.2 of the CPC also extends the possibility of civil forfeiture to certain cases in which criminal proceedings under Article 368-5 of the Criminal Code have been terminated on specified procedural grounds as per Article 284 (1) clauses 3, 4, 5, 8 and 10 of the Criminal Procedure Code, including insufficient evidence to prove guilt, expiry of the limitation period, death of the accused, decriminalization of the conduct, or where the statutory period for pre-trial investigation has expired. Civil claims relating to unexplained assets fall within the jurisdiction of the

17 See Criminal Code of Ukraine, Article 368-5. 18 As explained by the State Tax Service of Ukraine, the tax-free minimum income referred to in administrative or criminal offences is equal to 50 percent of the subsistence minimum for an able-bodied person (per month), established by law as of first of January of the reporting tax year. According to Article 7 of the Law of Ukraine on the State Budget for 2026, the minimum income for an able-bodied person per month in 2026 is UAH 3,328. That is, for the qualification of an administrative or criminal offence, the tax-free minimum income is UAH 3,328 x 50% = UAH 1,664. For the crime of illicit enrichment, that is UAH 1,664 x 6,500 = UAH 10,816,000, approximately EUR 209,000. 19 See Article 331 of the Criminal Procedure Code of Ukraine and Article 45 of the Criminal Code. 10  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

High Anti-Corruption Court (Article 34.1 of the CPC) and may be initiated exclusively by the Specialized Anti-Corruption Prosecutor’s Office (hereinafter “SAPO”) (Article 290.1 of the CPC). 22. Regarding the burden of proof, SAPO must first prove the existence of a discrepancy between a public official’s lawful income and the value of their assets (Article 81.2 of the CPC). Once SAPO has demonstrated such a discrepancy, the burden of proof shifts to the public official, who must disprove the claim that his or her assets are unexplained and prove the lawful origins or acquisition of the assets in question (Article 81.2 of the CPC). The applicable standard of proof requires the High Anti-Corruption Court to decide in favour of the party whose evidence is “more convincing” (Article 89.4 of the CPC). If the High Anti-Corruption Court finds that a public official possesses unexplained assets, it orders the forfeiture of those assets (Article 292.1-2 of the CPC). In addition, the High Anti-Corruption Court must transmit a copy of its judgement to the authority competent to decide on the dismissal or termination of employment of the public official subject to an order for the forfeiture of unexplained assets (Article 272.8 of the CPC).

National Legal Framework Regulating the Conduct of Lifestyle Monitoring of Public Officials and Constitutional Court Judges by the NACP

23. The LPC20 establishes the corruption-prevention system in Ukraine. As per its Article 3, the LPC applies to a wide range of public officials, including ordinary judges and CCU judges21 (Article 3.1.1.e). It provides preventive anti-corruption mechanisms for public officials, sets out the procedures for their implementation, and establishes the NACP, which is responsible for implementing these preventive mechanisms. Such mechanisms include rules of professional and ethical conduct for public officials, for example as regards the acceptance of gifts (Article 23) or rules to follow in situations of conflict of interest (Section V). The LPC also requires public officials to submit an annual asset declaration (Article 45), and establishes a complex multi-layered process of verification of asset declaration comprising several types of control, using both automated tools and manual verification (Articles 511, 512, 513).22 It also mandates public officials to notify the NACP about the opening of a foreign currency account in non-resident banks (Article 52.1) and significant receipt of income or important acquisitions or expenditures (Article 52.4). Most importantly, for the purpose of the present Opinion, the LPC grants the NACP the power to monitor the lifestyle of public officials (Article 11.1.71). 24. The main features of lifestyle monitoring of public officials are set out in Article 514 of the LPC. Lifestyle monitoring aims to assess whether “the standard of living and property” of public officials is consistent with the income they and their family members declared in their annual asset declaration (Article 514.1). This procedure is carried out by the NACP selectively on the basis of information from external actors (from individuals, legal entities, or the media) or open sources indicating an alleged discrepancy between the standard of living of a public official and his/her declared property and income (Article 514.2). The NACP has the power to request information, including information with restricted access, when necessary for the performance of its responsibilities (Article 12.1.1.1) of the LPC). This power appears to allow the NACP to approach external actors proactively for information that may indicate an alleged discrepancy before initiating lifestyle monitoring. State bodies, legal entities and individuals are required to provide

20 See Law of Ukraine on Prevention of Corruption, enacted on 14 October 2014 and last amended on 17 September 2025. 21 Article 11.5 of the Law of Ukraine on the Constitutional Court of Ukraine provides that the LPC applies to CCU judges 22 For an overview of the system of verification of asset declarations in Ukraine see, OSCE/ODIHR, Opinion on the Draft Procedure for Conducting a Full Verification of the Asset Declarations Submitted by Judges of the Constitutional Court of Ukraine, 27 February 2026, Section III.2.2; see also National Agency on Corruption Prevention (NACP), Control and Verification of Declarations: timeliness of filing, completeness, logical and arithmetic controls, automated verification, full verification, PowerPoint presentation; and OECD, Ukraine Fifth Round of Anti-Corruption Monitoring Follow Up Report, the Istanbul Anti-Corruption Plan, 2025, pp. 45-54. 11  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

the requested documents or information within ten working days of receiving the NACP’s request (Article 12(8) of the LPC). The LPC, however, does not set out a mechanism for selecting and prioritising public officials for lifestyle monitoring when such information is available. The NACP determines the procedure for monitoring the lifestyle of public officials, which must comply with the legislation on personal data protection and must not involve “undue abuse of the right to privacy and family life” (Article 514.3). During lifestyle monitoring, the NACP can collect and use information from state registers and databases, court decisions, registers of foreign countries, open sources, and information or documents received from individuals, legal entities, the media and law enforcement agencies, including materials of criminal proceedings. The NACP can also use information obtained through its other financial-control and anti-corruption functions, including the verification of asset declarations, prevention of conflict of interests, and control over compliance with restrictions for the prevention of corruption (Article 7 of the NACP Decree No 236/23, and Article 12 of the Draft Procedure). As mentioned above, the NACP also has the power to request information or documents, including information with restricted access (Article 12.1.11 of the LPC). 25. For most public officials, the procedure for lifestyle monitoring is elaborated in NACP Decree No. 236/23.23 26. The procedure for monitoring the lifestyle of ordinary judges and CCU judges has certain peculiarities and provides for specific safeguards elaborated in Article 522 of the LPC, with differences also between the procedures for ordinary judges and for CCU judges (see para. 34 infra). The Draft Procedure under review aims to set out the specific procedural modalities for the NACP’s conduct of lifestyle monitoring of CCU judges. It is issued by way of a Decree of the NACP. 27. If the NACP identifies discrepancies in living standards as a result of the lifestyle monitoring, it must provide the public official concerned with an opportunity to provide a written explanation and evidence within ten working days (Article 514.4 of the LPC). If such discrepancies are established, this triggers a full verification (i.e., manual in-depth audit) of the concerned public official’s annual asset declaration (Article 514.4 of the LPC). In addition, if the lifestyle monitoring reveals signs of corruption or corruption- related offences, the NACP is required to inform the competent counter-corruption entities for further actions (Article 514.4 of the LPC). 28. Consequently, the outcome of signs of corruption or corruption-related offences during the lifestyle monitoring may result in the initiation of appropriate proceedings: disciplinary, administrative (e.g., for receiving prohibited gifts, false declaration, or conflict of interest violations), civil (for unexplained assets – see paras. 21-22 supra), or in criminal proceedings when there is evidence of corruption-related criminal offence (such as illicit enrichment – see para. 20 supra, bribery, misuse of pulic funds, or submission of knowingly false information in asset declaration). Such proceeding, and eventual sanction or sentence, are issued by a competent court or disciplinary body, and not by the NACP. 29. In the case of CCU judges specifically, the powers of a CCU judge terminate, among other circumstances, when a guilty verdict against him/her for a criminal offence – including illicit enrichment – enters into force (Article 149-1 of the Constitution). In addition, the CCU has the authority to take disciplinary measures against a CCU judge, which may lead to the dismissal of a CCU judges if the misconduct is considered to amount to a “significant disciplinary offence”, which is incompatible with the status of a

23 NACP, Decree No. 236/23, 26 October 2023. 12  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

CCU judge, or reveals his/her inadequacy to the position held (Article 149-1.3 of the Constitution and Article 21.1 of the Law on the Constitutional Court of Ukraine).24

Context: Decision 13-r/2020 of the Constitutional Court of Ukraine and Ensuing Legal Reforms

30. In 2020, the CCU issued several decisions that affected the mandate and operation of both the NACP and the National Anti-Corruption Bureau (hereinafter “NABU”), which is responsible for criminal investigations into corruption-related criminal offences.25 In its decision 13-r/2020 of 27 October 2020, the CCU declared unconstitutional several provisions of the LPC concerning the NACP’s powers to conduct lifestyle monitoring of public officials26 and to verify the accuracy of their asset declarations, as well as Article 366-1 of the Criminal Code of Ukraine, which established criminal liability for knowingly submitting false declarations or intentionally failing to submit a declaration. The CCU argued that “declaring the income of persons exercising public power is an indisputable requirement in any modern democratic state. There is no doubt that public figures in the state must file a declaration of income. However, based on the principle of judicial independence, the public importance and significance of ensuring the real independence of judges, international principles and standards, such declaration and verification should be made taking into account the principle of judicial independence”.27 Having analysed several provisions of the LPC, the CCU concluded that various provisions of the LPC were not compliant with the constitutional principles of judicial independence and the independence of the CCU.28 Two CCU judges filed dissenting opinions arguing that the CCU decision was “not properly justified” and that “control over legality of income and property status of judges by executive bodies established based on laws of Ukraine is not an interference into the independence of judges and courts”.29 31. At the time of the CCU decision, the LPC provided that judges may be governed by special rules for certain procedures – for example, as regards conflict of interests (Article 35) – but did not make a distinction between judges and other public officials with respect to the procedure for monitoring the lifestyle of public officials and for conducting a full verification of asset declarations. 32. Decision 13-r/2020 of the CCU effectively removed the NACP’s powers to conduct lifestyle monitoring of all public officials and to verify their asset declarations, and eliminated the legal basis for NABU to investigate cases of intentional false declarations and failure to submit declarations. 33. Decision 13-r/2020 of the CCUgave rise to critical reactions and was the subject of an Urgent Joint Opinion by the Venice Commission and the CoE Directorate General of Human Rights and Rule of Law.30 The Joint Opinion concluded that the CCU decision “lacks clear reasoning, has no firm basis in international law, and was possibly tainted with a major procedural flaw – an unresolved question of a conflict of interest of some

24 Dismissal on such grounds is considered in a “special plenary session” of the CCU, based on an opinion of the CCU’s Standing Committee of the Court on Rules of Procedure and Ethics (see Article 21.1 of the Law on the Constitutional Court of Ukraine). A decision to dismiss a CCU judge is made by the CCU itself and requires the approval of at least two-thirds of its constitutional composition (i.e., twelve CCU judges) (see Article 21.1 of the Law on the Constitutional Court of Ukraine). 25 See CCU decision No. 11-r/2020 of 16 October 2020; CCU decision No. 13-r/2020 of 27 October 2020. 26 Specifically, the CCU declared unconstitutional Articles 11.1.8) and 51 of the Law of Ukraine on Prevention of Corruption (as amended through September 2020), which granted the NACP the power to monitor the lifestyle of public officials and regulated this procedure. 27 CCU decision No. 13-r/2020 of 27 October 2020, para. 15. 28 CCU decision No. 13-r/2020 of 27 October 2020, para. 16. 29 See Dissenting Opinion by Justice S. Holovaty and Dissenting Opinion by judge V. V. Lemak concerning CCU decision No. 13-r/2020. 30 See Venice Commission and CoE Directorate General of Human Rights and Rule of Law (DG I), Urgent Joint Opinion on the Legislative Situation Regarding Anti-Corruption Mechanisms Following Decision No. 13-R/2020 of the Constitutional Court of Ukraine, CDL-AD(2020)038, 11 December 2020. 13  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

judges”.31 As a potential means of resolving the situation, the Venice Commission invited the Parliament of Ukraine to consider introducing additional safeguards for judges, including: (i) improving the independence of the NACP and public control over its activities; (ii) more precisely and narrowly formulating certain NACP investigative powers or introducing specific exceptions and procedural safeguards for judges; (iii) establishing in the law a mechanism to supervise NACP’s activities vis-à-vis judges, either through a complaints mechanism, or in the form of regular reporting by the NACP to an appropriate judicial body.32 34. On 15 December 2020, the legislature adopted Article 522 of the LPC, which sets out additional safeguards for monitoring the lifestyle of judges and CCU judges and for conducting a full verification of asset declarations submitted by them. Article 522.1 of the LPC mandates the NACP to determine a specific procedure for monitoring the lifestyle of a CCU judge. Articles 522.1 to 522.7 of the LPC set special requirements for this procedure, with the prima facie aim of providing additional safeguards for the independence of CCU judges. First, the specific procedure to be developed by the NACP for monitoring the lifestyle of CCU judges must be approved by the Assembly of Judges of the Constitutional Court (Article 522.1). When a procedure of monitoring the lifestyle of a CCU judge is initiated, the NACP must inform the Chairperson of the CCU no later than the next working day after the lifestyle monitoring begins (Article 522.2). The certificate containing the results of the lifestyle monitoring must be approved by the Chairperson of the NACP or his/her Deputy (Article 522.3). Furthermore, Article. 522.4 prohibits “any illegal influence, pressure or interference” in the activities of a CCU judge during the lifestyle monitoring (Article 522.4). If such interference occurs, the Assembly of Juges of the CCU may submit a “mandatory petition” to the NACP requesting the elimination of such violation (Article 522.6). Finally, Article 522.7 establishes disciplinary liability for NACP staff members who violate the independence of judges, including CCU judges.

Overview of the NACP’s Practice of Monitoring the Lifestyle of Public Officials

35. Under the LPC, lifestyle monitoring is a stand-alone control procedure distinct from the full verification (i.e., manual in-depth audit) of asset declarations (Articles 513 and 514 of the LPC).33 36. Lifestyle monitoring of public officials is carried out by the Department for Lifestyle Monitoring and Control over the Completeness of Declarations of the NACP, which comprises 16 staff.34 Lifestyle monitoring of intelligence and counter-intelligence personnel, and public officials holding positions involving access to state secrets, was initially performed by the NACP’s Internal Control Department. However, in mid-2024, this task was transferred to the newly established NACP’s Department of Financial Control Measures in Respect of Certain Categories of Persons, which is staffed by five employees.35 This change was implemented following recommendations from an external audit commissioned by the NACP.36

31 Ibid. para. 73. 32 Ibid. para. 75. 33 This division into two distinct procedures continues to be a source of debate about what the delineation between both procedures should ideally be. See, for example, Transparency International Ukraine, What Lifestyle Monitoring Means, 26 April 2021. 34 OECD, Ukraine Fifth Round of Anti-Corruption Monitoring Follow-Up Report, the Istanbul Anti Corruption Action Plan, 2025, p. 47. 35 See NACP, Verification of Declarations and monitoring of the lifestyle of special services officers will be carried out by a separate newly created unit of the NACP, 5 June 2024. 36 See Independent External Assessment of the Effectiveness of the National Agency on Corruption Prevention’ Activity, Assessment Report, 24 July 2023. 14  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

37. The lifestyle monitoring procedure gained particular importance in 2022 and 2023, when the legal obligation to submit annual asset declarations and the NACP’s asset declaration verification functions were suspended following the introduction of martial law in February 2022.37 This obligation and the NACP’s verification functions were restored in October 2023 through Law No. 3384-IX of 20 October 2023.38 Since then, the NACP has reported that its lifestyle monitoring activities have resulted in the identification of a significant number of cases involving potential unexplained assets and illicit enrichment, which have been referred to the competent authorities for further action.39

3. LEGAL BASIS OF THE DRAFT PROCEDURE

38. Article 522.1 of the LPC mandates the NACP to determine the procedure for monitoring the lifestyle of a CCU judge “with the consent of […] the Assembly of Judges of the Constitutional Court of Ukraine”.40 Articles 522.2 to 522.7 of the LPC sets some specific requirements for this procedure, which provide additional procedural safeguards for the independence of CCU judges (see para. 34 supra). The Draft Procedure under review sets out that procedure and is issued by way of a Decree of the NACP. 39. The rule of law and the principle of legality require that the powers of public authorities be defined by law, that public authorities are authorized to act, and that they do not exceed the limit of their powers.41 Accordingly, it is important that the legal basis for the exercise of a public authority’s powers be clearly and explicitly identified. 40. In the case of the Draft Procedure under review, that authority is not clearly set out. The Draft Procedure does not reference Article 522.1 of the LPC which confers upon the NACP the authority to determine the procedure for monitoring the lifestyle of CCU judges. The absence of a clear reference to the source of authority may undermine legal certainty. 41. In the interest of legal clarity and certainty, it is therefore recommended that the Draft Procedure be supplemented with an explicit reference to Article 522.1 of the LPC, to clearly identify the legal basis and source of the NACP’s authority to adopt the Draft Procedure.

37 See President of Ukraine, Decree No. 64/2022, 24 February 2022; Law of Ukraine No 2436-IX on Amendments to the Law of Ukraine "On Protection of the Interests of Subjects of Submission of Reports and Other Documents during Martial Law or State of War" regarding exemption from liability for violation of the terms of publication of financial statements during martial law or state of war, 19 July 2022. See also, NACP, Clarification No. 2 dated 28.02.2022 on the application of certain provisions of the Law of Ukraine "On Prevention of Corruption" regarding financial control measures under martial law, 28 February 2022, in which the NACP states that until the end of martial law, “declaration entities should not waste time filling in and submitting a declaration and(or) notification of significant changes in the property status, but should make all possible efforts aimed at protecting their freedom, peace in Europe and the world, and the defense of the Ukrainian state.” 38 See Law on Amendments to Certain Laws of Ukraine on Determining the Procedure for Submitting Declarations of Persons Authorized to Perform the Functions of the State or Local Self-Government under Martial Law, No. 3384-IX, 20 October 2023. 39 In 2023, the NACP carried out 553 lifestyle monitoring of public officials, and submitted 47 materials to SAPO and law enforcement agencies (the NABU and the State Bureau of Investigation – hereinafter “SBI”) identifying signs of unexplained assets and illicit enrichment, with a total estimated value exceeding UAH 598 million (approximately EUR 11.6 million) (see Results 2024: lifestyle monitoring and control over the completeness of declarations); in 2024, the NACP conducted 167 lifestyle monitoring, and submitted 20 cases to SAPO identifying signs of unexplained acquisition and 22 cases to law enforcement agencies identifying signs of illicit enrichment, totalling UAH 740 million (approximately EUR 14.4 million) (see Results 2024: lifestyle monitoring and control over the completeness of declarations, 17 January 2025); NACP, In 2025, the NACP conducted 247 lifestyle monitoring of public officials, and forwarded 64 cases to SAPO identifying signs of unexplained assets and 30 cases to law enforcement agencies identifying signs of illicit enrichment, with a total estimated value exceeding UAH 1.113 billion (approximately EUR 21.6 million) (see Results of the NACP’s work in 2025 : monitoring of lifestyle and control over the completeness of declarations, 23 January 2026). 40 Law of Ukraine on the Prevention of Corruption (with amendments through 8 October 2025), Article 522. 41 Venice Commission, Updated Rule of Law Checklist, CDL-AD(2025)002, 16 December 2025, para. 28. 15  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

4. DEFINITION OF INCOME AND METHOD FOR CALCULATING UNEXPLAINED WEALTH (ARTICLES 2 AND 3)

42. Article 514.1 of the LPC, and Article 2 of the Draft Procedure, provide that lifestyle monitoring aims to assess the compliance of the lifestyle of a public official (of a CCU judge in the case of the Draft Procedure) with the property available to him or her and members of his or her family and the income received by them according to their annual asset declarations. Article 3 of the Draft Procedure further elaborates these concepts. The “lifestyle” of a CCU judge is defined as “forms of behaviour of a judge of the CCU, reflecting his standard of living and including being in possession or using assets, acquisition of assets, expenses to pay for services, works, financial obligations, performance of other transactions by a judge of the CCU”. “Non-compliance” of the lifestyle of a CCU judge refers to “the difference between the real (market) value of the acquired assets and other expenses incurred by the judge of the CCU and the property and income declared by him/her”. 43. These provisions raise two sets of observations. First, these provisions refer to property and income declared by a CCU judge in his or her annual asset declaration. By contrast, Article 368-5.1 of the Criminal Code of Ukraine which criminalizes illicit enrichment, as well as Articles 290.2 and 290.6 of the CPC, which regulate the civil forfeiture procedure for unexplained assets (see paras. 21-22 supra), refer to lawful income, rather than declared income. The Criminal Code and the CPC define “lawful income” by cross- referencing sources specified in the LPC.42 In principle, only lawful income should be taken into account when assessing whether the lifestyle of a public official is commensurate with his or her property and income, as well as when calculating potential unexplained wealth (or illicit enrichment in its criminal form). If unlawful income, even if formally declared, were to be taken into consideration in this assessment, these controls would not be able to identify unexplained wealth. In this regard, it is noted that both the NACP and the HACC interpret “income” under the LPC in the context of lifestyle monitoring as refering exclusively to lawful income, thereby not counting any dubious financial source as income in the calculation.43 Therefore, it is recommended to amend Article 2 of the Draft Procedure (and Article 514.1 of the LPC, although this goes beyond the scope of this Opinion) to refer to “lawful income” rather than income declared in the annual asset declarations. This would enhance consistency with the provisions of the Criminal Code regarding illicit enrichment and the provisions of the CPC regarding unexplained wealth, reflect the interpretation of the NACP and case-law of the HACC, and improve the overall coherence, clarity and legal certainty of the legal framework. 44. Second, the identification of unexplained wealth (or illicit enrichment in its criminal form) should follow a clear financial calculation method. Generally, potential unexplained wealth may be identified when the balance of cash savings at the end of a given calendar year is higher than lawful financial inflows (i.e., the carry over cash balance of an individual (and potentially partner and family members) plus their annual income) less any expenses (including, but not limited to, living expenses, travel expenses, mortgage repayments).44 Therefore, consideration could be given to supplement the

42 See Criminal Code, Article 368-5.4, and CPC, Article 290.8.5, which define lawful income as “income lawfully received by a person from legal sources including sources specified in clauses 7 and 8 of Article 46 of the [LPC]”. 43 See, for example, NACP, HACC AP upheld the forfeiture of a UAH 1.8 million asset from an official of the National Police Drug Crime Department, 13 February 2026 in which the NACP stated “During lifestyle monitoring, the National Agency on Corruption Prevention (NACP) established that the couple did not have sufficient legal income to purchase this real estate.” 44 See e.g., ECtHR, Xhoxhaj v. Albania, no. 15227/19, 31 May 2021, para 31, footnote 1, where the Court stated that “[f]or the purpose of this judgment, “liquid assets” means (A) the balance of cash savings at the end of a given calendar year, as determined by the vetting bodies, which should be equal to (B) the carryover cash balance of the applicant and her partner from the previous calendar year, plus

16  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

Draft Procedure or the LPC to clarify the calculation method for assessing the consistency between lifestyle and lawful income.

5. ADDITIONAL PROCEDURAL GUARANTEES FOR CCU JUDGES PROVIDED IN ARTICLE 522 OF THE LPC AND THEIR OPERATIONALIZATION IN THE DRAFT PROCEDURE

45. Article 522 of the LPC provides CCU judges with six additional procedural guarantees in relation to lifestyle monitoring carried out by the NACP which appear intended to afford additional safeguards for the independence of CCU judges (see para. 34 supra).45 Pursuant to Article 522.1 of the LPC, the NACP is required to operationalize these procedural guarantees through a specific procedure for monitoring the lifestyle of CCU judges. 46. The decision of the Verkhovna Rada to enshrine the main safeguards of the procedure for monitoring the lifestyle of CCU judges in a statute while deferring the regulation of the details and the operationalization of these safeguards to sub-statutory regulations is overall commendable. Indeed, given the importance of the lifestyle monitoring procedures and its potential outcome and consequences on CCU judges, it is important that the main features and safeguards of the procedure are regulated at statutory level.46 47. The Draft Procedure under review incorporates four out of these six guarantees. Specifically, it provides for: (i) the obligation of the NACP to notify the Chairperson of the CCU of the start of the lifestyle monitoring procedure of a CCU judge (Article 9 of the Draft Procedure), (ii) the requirement that the certificate containing the results of the lifestyle monitoring be approved by the Chairperson of the NACP or his/her Deputy (Article 15 of the Draft Procedure), (iii) the prohibition of “any illegal influence, pressure or interference” in the activities of a CCU judge during the lifestyle monitoring (Article 4 of the Draft Procedure) and (iv) the disciplinary liability of NACP staff who violate the independence of a CCU judge (Article 4 of the Draft Procedure). 48. However, the Draft Procedure neither refers to nor operationalizes the mechanism provided for in Article 522.6 of the LPC, under which the Assembly of Judges of the Constitutional Court may submit a “mandatory petition” to the NACP requesting the “elimination” of “any illegal influence, pressure or interference” by NACP staff in the activities of a CCU judge during lifestyle monitoring (see para. 50 infra). It is recommended that this safeguard also be incorporated and operationalized in the Draft Procedure or in other relevant law or regulation (see Recommendation A infra), or if already elaborated elsewhere, to cross-reference the applicable law or regulation.

(C) the annual income of the applicant and her partner generated during the reporting calendar year as substantiated by legal/official documents, less (D) any expenses (including, but not limited to, living expenses, travel expenses, mortgage repayments). Any discrepancies where (A) is higher than (B + C – D) would give rise to unjustifiable liquid assets that are not supported by the cash flow determined from the documents in the case file.” See also the methodology of calculating discrepancies (unexplained wealth) developed in 2023 by the Advisory Group of Experts (AGE) set up to assist the Ukrainian authorities in evaluating the moral qualities, professional competences and financial integrity of candidate judges of the Constitutional Court of Ukraine, also using the above calculation methods; see the Annex: Unjustified Wealth in Methodology for Assessing Moral Qualities and the Level of Competence in the Field of Law of the Advirsory Group of Experts, 15 September 2025.

46 See Venice Commission and CoE Directorate General of Human Rights and Rule of Law (DGI), Ukraine Joint Opinion on Draft Amendments on Disciplinary Procedures against Judges, Declarations of Integrity, and Other Procedures, CDL-AD(2025)044, 14 October 2025, para. 89, in which the Venice Commission stated in relation to the procedure for verification of asset declarations made by judges to the High Qualification Commission of Judges of Ukraine (HQCJ) (set out in the Rules of procedure of the HQCJ), that given the importance and possible consequences of decisions by the HQCJ, “the main features and safeguards should be regulated at statutory level and only the regulation of the details should be left to the sub-statutory regulations”. 17  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

6. PROHIBITION OF “UNLAWFUL INFLUENCE, PRESSURE OR INTERFERENCE” IN THE ACTIVITIES OF A JUDGE DURING LIFESTYLE MONITORING (ARTICLE 4)

49. Both the LPC and the Draft Procedure prohibit “any unlawful influence, pressure or interference in the activities of a judge during lifestyle monitoring”.47 While this prohibition pursues the legitimate aim of protecting CCU judges from any undue influence, it lacks clarity as to the acts or conduct that would constitute such “unlawful influence, pressure or interference”. Moreover, neither the LPC nor the Draft Procedure specifies the procedure to be followed where such influence is suspected, nor do they indicate the potential sanctions for breaches of this prohibition. 50. Article 522.6 of the LPC further provides that if such interference occurs, the Assembly of Juges of the Constitutional Court can submit a “mandatory petition” to the NACP requesting the “elimination” of such influence. However, the Draft Procedure does not regulate the manner in which the NACP is required to examine, respond to, and address such a petition. For legal clarity purposes, and unless already regulated elsewhere, the Draft Procedure or other relevant law or regulation should set out the NACP’s obligations and procedures for responding to, and addressing such petitions, including by further elaborating on the actions to be taken by the NACP upon receipt of the petition, the officials responsible within the NACP for handling the petition, the timeline for responding and other relevant procedural modalities. This procedure should be framed in a way that the mandatory petition of the Assembly of Judges of the Constitutional Court does not impair the independence of the NACP. Notably, to prevent the mandatory petition from being used to stall legitimate lifestyle monitoring, the Draft Procedure should clarify that such “mandatory petition” must be based on concrete evidence of procedural violations that constitute “unlawful influence, pressure or interference”, rather than a general disagreement with the NACP’s findings.

RECOMMENDATION A. Unless regulated elsewhere in which case cross-reference to applicable law or regulation should be included, to supplement the Draft Procedure, or other relevant law or regulation, with provisions governing the NACP’s obligations and procedures for examining, responding to, and addressing “mandatory petitions” submitted by the Assembly of Judges of the Constitutional Court based on evidence of suspected unlawful influence, pressure or interference on a CCU judge during lifestyle monitoring, while ensuring that the design and operation of this mechanism do not impair the independence of the NACP.

7. AIM OF LIFESTYLE MONITORING OF CCU JUDGES (ARTICLE 5)

51. Article 5 of the Draft Procedure provides that “during the monitoring of the lifestyle of a judge of the CCU, in particular, circumstances that are important for detecting potential illicit enrichment or unjustified assets are checked”. This provision clarifies that lifestyle monitoring is a control tool aimed at detecting unexplained wealth and, in its criminal form, illicit enrichment.

47 Article 522.4 of the LPC and Article 4 of the Draft Procedure. 18  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

8. EQUAL SCOPE OF LIFESTYLE MONITORING

52. Although the Draft Procedure does not state this explicitly, it foresees no less stringent nor narrower forms of control when checking whether there are signs of potential unexplained wealth or illicit enrichment during the monitoring of the lifestyle of a CCU judge, as compared to other public officials. This is reflected, in particular, in Article 12 of the Draft Procedure which lists the type of information that may be used by the NACP during lifestyle monitoring of a CCU judge, which mirrors the list provided in Article 7 of NACP Decree No. 236/23 applicable to the lifestyle monitoring of other public officials. This approach appears to be in line with Article 522.1 of the LPC, which provides that the procedure for monitoring the lifestyle of CCU judges to be determined by the NACP “may not establish the features […] of monitoring the lifestyle of a CCU judge not provided for by the Law”. Although the formulation of this provision (double negation) is not easy to read for a lay person, it may be interpreted as requiring that the substance and scope of verifications carried out during lifestyle monitoring of CCU judges be equivalent to those applicable to other public officials, while allowing for some differences in procedural aspects to safeguard their independence. 53. In essence, this means that, while CCU judges benefit from a distinct set of procedural safeguards (see para. 34 supra), they remain subject to the same scope and substance of control as other public officials when their lifestyle is being monitored. While the Ukrainian legislator may see reasons to provide additional procedural guarantees for CCU judges during lifestyle monitoring to safeguard judicial independence, this should not affect the material scope of the monitoring and CCU judges should not be subject to less stringent or narrower forms of control than other public officials in similar situation.

9. RESTRICTED ACCESS TO LIFESTYLE MONITORING INFORMATION AND ITS RESULT (ARTICLE 6)

54. Article 6 of the Draft Procedure provides that “information on the initiation, conduct and results of monitoring of the lifestyle of a judge of the CCU constitutes information with restricted access and is subject to protection in accordance with the legislation on the protection of information with restricted access”. In essence, this means that information about the initiation, conduct and outcome of lifestyle monitoring of a CCU judge and its results is not accessible to the public. This procedural guarantee for CCU judges is not provided for in the LPC, it is introduced by the Draft Procedure. 55. NACP Decree No. 236/23 elaborating the procedure for monitoring the lifestyle of most public officials does not provide for restricted access to lifestyle monitoring information or to its results. This is a significant difference between the two procedures. 56. This requirement of restricted access may be regarded as serving to protect the right to private and family life of the CCU judge concerned. However, it is not obvious why CCU judges should be treated differently in this respect from other public officials. It also means that information on the finances of a CCU judge collected during the lifestyle monitoring is excluded from public disclosure. 57. At the same time, it is noted that the Law on Information (Article 21.4.5) and the Law on State Secrets provide that information “about illegal actions of state bodies, local self- government bodies and their officials and employees” cannot be classified as restricted information nor as state secret.48 Therefore, if a CCU judge is subject to civil forfeiture

48 See Law of Ukraine about Information, Article 21.4.5; and Law of Ukraine on State Secrets, Article 8.4.2. 19  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

in relation to unexplained wealth or is convicted of the criminal offence of illicit enrichment, such information should not be classified as restricted according to these laws Being in the hierarchy of norms under laws, Article 6 of the Draft Procedure cannot be interpreted as preventing the public disclosure of such information.

10. INITIATION AND DURATION OF LIFESTYLE MONITORING OF A CCU JUDGE (ARTICLES 7 TO 11)

58. The Draft Procedure regulates the initiation of lifestyle monitoring of a CCU judge (Articles 7, 8 and 9), the start date of lifestyle monitoring (Article 9), and the notification process of the Chairperson of the CCU (Article 9). It further sets out the time limits applicable to lifestyle monitoring of a CCU judge (Article 10) and the procedure and grounds for its extension (Article 11).

Initiation of Lifestyle Monitoring

59. Article 8 of the Draft Procedure provides that lifestyle monitoring of a CCU judge may be carried out selectively by the NACP on the basis of information received from external actors (from individuals, legal entities or the media) or open sources indicating an alleged discrepancy between the standard of living of a CCU judge and his or her declared property and income. This reflects Article 514.2 of the LPC. Articles 3 and 7 of the Draft Procedure further provide that the NACP must conduct a preliminary analysis of the received information about the alleged discrepancy. If this preliminary check reveals indications of potential unexplained wealth, the NACP staff conducting this preliminary check must submit a request to the head of his/her unit to initiate lifestyle monitoring, which should then be approved by the head of the NACP or by his or her deputy (Article 9). 60. In principle, this preliminary check is commendable as it functions as a filtering mechanism. It helps to ensure that lifestyle monitoring is initiated only when there are credible and verified indications of possible unexplained wealth, and reduces the risk that monitoring is triggered based on malicious or wrong information. 61. However, several aspects of this preliminary check lack clarity. First, its scope is not entirely clear. The Draft Procedure provides that this step consists in “a preliminary check of the information that precedes the decision to start monitoring”. It is unclear whether this is limited to checking the information received from external sources or open sources, or whether this may involve the collection and verification of additional information at this stage. 62. Second, the Draft Procedure does not clearly identify the NACP staff responsible for conducting this preliminary check. In addition, it is not specified whether the NACP staff carrying out the preliminary check may subsequently be in charge of conducting the lifestyle monitoring. It is thus recommended to more precisely define in the Draft Procedure the scope of the preliminary check, and specify who is in charge of this preliminary check (see recommendation B.1 infra).

Assignment of Responsibilities among NACP Departments and NACP Staff Members to Conduct Lifestyle Monitoring

63. The Draft Procedure refers in several provisions to the “head of an independent structural unit of the NACP” (Articles 9, 11 and 14) and to the “authorized official of the NACP” (Articles 9, 11, 14 and 15). With regard to the decision to initiate lifestyle monitoring of

20  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

a CCU judge, Article 9 of the Draft Procedure provides that such decision “shall be made by the head of an independent structural unit of the NACP on the basis of a submission of an authorized official of the NACP, which contains information on signs of non- compliance of the lifestyle of a judge of the CCU, approved by the Head of the NACP or by his deputy.” 64. This provision raises two comments. First, the reference to “the head of an independent structural unit of the NACP” is broad. In its current formulation, the provision may be interpreted as authorizing the heads of any department within the NACP to decide to initiate lifestyle monitoring of a CCU judge. 65. Secondly, the Draft Procedure does not regulate how the “authorized official of the NACP” responsible for conducting the lifestyle monitoring concerned is selected from among NACP staff members of the relevant structural unit. In other words, the Draft Procedure does not specify how lifestyle monitoring cases are allocated among NACP staff members. Therefore, unless already regulated elsewhere, it is recommended to supplement the Draft Procedure with a provision requiring that lifestyle monitoring cases are assigned to NACP staff either through a random selection process or through an automated allocation based on objective criteria such as, for example, alphabetical or chronological order, with a view to further strengthen impartiality in the conduct of lifestyle monitoring.

RECOMMENDATION B. 1. To more precisely define the scope of the preliminary check, and specify who is in charge of this preliminary check. 2. Unless regulated elsewhere, to supplement the Draft Procedure with a provision requiring that lifestyle monitoring cases are assigned to NACP staff either through a random selection process or through an automated allocation based on objective criteria such as, for example, alphabetical or chronological order.

Notification of the Chairperson of the CCU

66. The Draft Procedure provides that the NACP must inform the Chairperson of the CCU no later than the next working day following the start of lifestyle monitoring of a CCU judge (Article 9). This requirement is consistent with Article 522.2 of the LPC. 67. At the same time, the Draft Procedure does not specify who within the NACP is responsible for notifying the Chairperson of the CCU. For procedural certainty purposes, it is recommended that Article 9 of the Draft Procedure be supplemented to identify the NACP official responsible for sending such notification.

Time Limits of Lifestyle Monitoring of a CCU Judge

68. The Draft Procedure provides that lifestyle monitoring of a CCU judge lasts 180 days (Article 10) with the possibility of a one-time extension of up to 180 days on certain specified grounds (Article 11). Article 11 further elaborates the grounds for extending the duration of the lifestyle monitoring that are: “when no documents or information on the merits necessary for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine have been received, or in case of receipt of documents and information, the verification of which requires sending requests to state bodies, authorities of the Autonomous Republic of Crimea, local self-government bodies, notaries, business entities regardless of their form of ownership and to their officials, citizens and associations, and to the Justice of the Constitutional Court of Ukraine” (Article 11.1); 21  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

“when, on the last day of the term for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine, the authorized official of the NACP has not received information from the banking institution about the disclosure of the bank secrecy”(Article 11.2); “when no reply has been received to the request addressed to the state and other competent authorities of foreign states to provide the information necessary to monitor the lifestyle of a Justice of the Constitutional Court of Ukraine, or in connection with the need to translate into Ukrainian the received documents or information” (Article 11.3); and “when no expert opinion has been obtained on the value (price) of assets, including the minimum market value” (Article 11.4). Such extension must be requested by the NACP staff in charge of the lifestyle monitoring or his or her direct supervisor and approved by the head of an independent structural unit of the NACP as well as the Head of the NACP or his or her deputy (Article 11). 69. By contrast, NACP Decree No. 236/23 elaborating the procedure for monitoring the lifestyle of most public officials does not provide a time limit for lifestyle monitoring of public officials. This is a significant difference and may be in some cases a safeguard against overly long lifestyle monitoring of CCU judges. 70. The duration of lifestyle monitoring should be reasonable and its prolongation needs justification. In particular, the time limit should aim to strike a balance between providing sufficient time to detect signs of unexplained or illicit enrichment while preventing overlonged interference with the right to private and family life of the CCU judge concerned and his/her reputation. These considerations make it particularly important that any decision to extend the duration of the lifestyle monitoring be duly justified. In addition, consideration could also be given to establish an internal mechanism for reviewing, at regular intervals, the progress and continued necessity of the lifestyle monitoring. 71. It is noted that, under Article 12.8 of the LPC, state authorities, individuals and legal entities must provide the documents or information requested by the NACP, including restricted information, within ten working days of receipt of the request. At the same time, identifying signs of unexplained wealth or illicit enrichment requires time. For example, where assets are formally held by third parties (such as, in the name of distant family members), a complex set of evidence may be needed to show that the public official concerned is the actual beneficial owner. Similarly, in cases involving assets located abroad, additional time may be required to obtain foreign documents and data, as foreign authorities may take time to respond, and follow-up requests to other authorities in the same or another country is often necessary. A strict time limit of a total of 360 days favours CCU-judges over other declarants and could be unjustified in some cases. As noted above (para. 53), CCU judges should not be subject to less stringent or narrower forms of control than other public officials in similar situation.

11. RESULTS OF THE LIFESTYLE MONITORING AND FURTHER ACTIONS (ARTICLES 13 TO 20)

72. Articles 13 to 20 of the Draft Procedure regulate the procedure for preparing and approving the results of lifestyle monitoring of a CCU judge and the procedure to be followed when signs of unexplained wealth or of corruption-related offences are detected as a result of the lifestyle monitoring.

22  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

Right of Response of the CCU judge (Article 13)

73. Article 514.4 of the LPC and Article 13 of the Draft Procedure provides that if a discrepancy is detected between the lifestyle of a CCU judge and his or her income and property as a result of the lifestyle monitoring procedure, the NACP must inform the CCU judge concerned and give him or her the opportunity to provide a written explanation within ten working days. It is understood that these provisions do not preclude a CCU judge subject of lifestyle monitoring to submit additional evidence after the ten working days period. 74. This provision is generally welcome, as it ensures that the CCU judge concerned has an opportunity to submit explanations and evidence to refute signs of unexplained wealth or illicit enrichment before the NACP transmits the relevant materials to the authority competent to initiate further proceedings.

Approval of the Results by the Head or Deputy Head of the NACP (Articles 14 and 15).

75. Article 14 of the Draft Procedure provides that the decision to complete the lifestyle monitoring of a CCU judge “is made by the head of an independent structural unit of the NACP on the basis of a submission of an authorized official of the NACP, approved by the Head of the NACP and/or his deputy.” This provision mirrors the line of approval required to decide to initiate lifestyle monitoring of a CCU judge provided in Article 9 of the Draft Procedure (see para. 63 supra). 76. Article 15 of the Draft Procedure sets out the steps for finalizing and approving the results of the lifestyle monitoring. The NACP staff responsible for conducting the lifestyle monitoring is required to prepare and sign a memorandum on the results of the lifestyle monitoring, which must then be approved by “the Head of the NACP and/or his deputy”. The memorandum must contain the date of initiation and grounds for conducting lifestyle monitoring of a CCU judge, an account of the activities and their results, estbalished facts of compliance or non-compliance of the lifestyle of a judge of the CCU, failure to comply with other requirements of the law, as well as response measures taken by the NACP against the CCU judge concerned, if any (Article 15). 77. The requirement that the memorandum on the results of the lifestyle monitoring be approved by “the Head of the NACP and/or his deputy” reiterates the obligation already provided for in Article 522.3 of the LPC. This procedural requirement, which is specific to the lifestyle monitoring of CCU judges, is aimed at introducing an additional layer of quality control and oversight. 78. However, three aspects of these provisions could be further clarified and improved. 79. First, the reference to the “the Head of the NACP and/or his deputy” in Articles 14 and 15 lacks clarity. It is unclear whether the Head of the NACP may delegate the approval to his/her Deputy, or whether approval by both the Head and the Deputy Head is required. In this regard, Article 522.3 of the LPC is clearer, as it provides that the results of lifestyle monitoring of a CCU judge must be approved by the Head of the NACP or his/her Deputy. For legal clarity and certainty purposes, it is recommended to align Articles 14 and 15 of the Draft Procedure with Article 522.3 of the LPC by specifying that the memorandum on the results of the lifestyle monitoring of a CCU judge should be approved by the Head or the Deputy Head of the NACP. 80. Second, the Draft Procedure does not establish any timeline for the preparation, submission and approval of the memorandum on the results of the lifestyle monitoring. In particular, it does not specify the period within which the NACP staff in charge of the 23  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

lifestyle monitoring must prepare and submit the memorandum on the results following the decision to terminate the lifestyle monitoring. Nor does it establish a deadline for the Head or Deputy Head of the NACP to approve the memorandum. In cases where non- compliance of the lifestyle of a CCU judge has been established during lifestyle monitoring, the absence of such time limit creates procedural uncertainty. It is thus recommended to introduce clear timelines in the Draft Procedure for the preparation of the memorandum on the results, its submission to the Head or Deputy Head of the NACP, and the approval by the Head or Deputy Head of the NACP. 81. Finally, the Draft Procedure does not define the grounds on which the immediate supervisor, the Deputy Head of the NACP, or the Head of the NACP may refuse to approve the decision to terminate the lifestyle monitoring and/or to approve the memorandum on the results of the lifestyle monitoring. In addition, the Draft Procedure does not require that any refusal be accompanied by a reasoned justification. The absence of clearly defined and limited grounds for refusal to approve the results could allow for arbitrary decision-making. In the absence of pre-determined criteria at each level of review, the additional safeguard applicable to CCU judges – namely that the results of a lifestyle monitoring be approved by the Deputy Head or Head of the NACP – risks leading to potential discretionary decisions. In this context, unless already regulated elsewhere, the legal drafters should consider specifying the grounds on which approval of the memorandum may be refused by the Head or Deputy Head of the NACP.

RECOMMENDATION C. 1. To align Articles 14 and 15 of the Draft Procedure with Article 522.3 of the LPC by specifying that the memorandum on the results of the lifestyle monitoring of a CCU judge should be approved by the Head or the Deputy Head of the NACP. 2. To specify in the Draft Procedure a timeline for the preparation of the memorandum on the results, its submission to the Head or Deputy Head of the NACP, and its approval by the Head or Deputy Head of the NACP. 3. Unless regulated elsewhere, to specify in the Draft Procedure the grounds on which the Head or the Deputy Head of the NACP may refuse to approve the memorandum on the results of the lifestyle monitoring, and require that such refusal be accompanied by a reasoned justification

Information of the Results to the Chairperson of the CCU (Article 16)

82. The NACP staff who carried out the lifestyle monitoring must inform the CCU judge monitored about the the results of the lifestyle monitoring (Article 16). This must be done within five days following approval of the memorandum on the results of the lifestyle monitoring. The notification must be sent to the CCU judge monitored through the Unified State Register of Declarations of Public Officials, by post, or by electronic mail (Article 16). In addition, where lifestyle monitoring reveals signs of an administrative offence related to corruption or other corruption-related offence committed by the CCU judge concerned, including potential illicit enrichment, the Head of the NACP and/or his or her Deputy must prepare a protocol on such an offence, transmit it to the competent court or competent counter-corruption entites, and inform the Chairperson of the CCU (Article 12.7 of the LPC, Articles 17 and 18 of the Draft Procedure). 83. The Draft Procedure does not provide for the Chairperson of the CCU to be informed when the lifestyle monitoring reveals signs of unexplained wealth (that may lead to civil 24  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

forfeiture) (Article 19). When there is a qualified suspicion of a crime (illicit enrichment) or a civil offence (unexplained wealth), the confidentiality of subsequent law enforcement or other procedures needs to be protected. Following a referral from the NACP, the competent law enforcement or other bodies might decide to use investigative measures that are not available to the NACP, such as search, surveillance, mutual legal assistance or other investigative actions. Informing the Chairperson of the CCU at that stage could create a risk that the suspicion would be leaked to the CCU, which may compromise the effectiveness of the investigation of the CCU judge concerned. This concern is even more acute if the Chairperson of the CCU themselves are the monitored judge, as informing them would give them a warning to forthcoming potential investigative measures. Therefore, although this goes beyond the scope of this Opinion, it is recommended to amend Article 12.7 of the LPC and Articles 17 and 18 of the Draft Procedure to reconsider the obligation to inform the Chairperson of the CCU of potential illicit enrichment to ensure that the effectiveness of criminal investigation of corruption- related offences is not compromised. 84. In addition, international human rights standards do not require either the Chairperson of the CCU or the CCU judge concerned to be informed. According to fair trial rights standards, it is sufficient that the CCU judge can contest the legality of the lifestyle monitoring procedure and the evidentiary basis of the allegations within the framework of the subsequent judicial proceeding – in criminal trial in case of illicit enrichment, or in civil forfeiture proceedings in case of unexplained wealth. There is no need for a separate remedy against preliminary fact findings that serve as the basis for initiating investigation and judicial proceedings. In the recent ECtHR case of Jankovic v. Slovenia, the applicant, whose asset declaration had been subjected to verification, complained that the domestic courts had failed to examine his grievance relating to the content of the final conclusions of the Commission in charge of verifying declarations, arguing that the domestic courts failed to provide a full judicial review of the Commission’s final conclusions. The ECtHR rejected that complaint, noting that “In any event, the Court notes that the Administrative Court could have quashed the Commission’s decision had it disagreed with either its legal or factual findings (including its findings in respect of evidence). This fact indicates that the Administrative Court was a court of ‘full jurisdiction’ for the purposes of Article 6§1 of the Convention.”49

Procedure When Signs of Corruption-Related Offences are Detected (Articles 17, 18 and 19)

85. When signs of an administrative offence related to corruption committed by the CCU judge concerned are detected as a result of the lifestyle monitoring, the Head or Deputy Head of the NACP must prepare a protocol on such an offence, send it to the competent court for further actions, and inform the Chairperson of the CCU (Article 12.7 of the LPC and Article 17 of the Draft Procedure). When signs of another corruption-related offence committed by a CCU judge is detected as a result of the lifestyle monitoring, the Head or Deputy Head of the NACP must approve the justified conclusions, and transmit it to the competent counter-corruption entities for further actions, and inform the Chairperson of the CCU (Article 12.7 of the LPC and Article 18 of the Draft procedure). When signs of unexplained wealth (Article 290 of the CPC) are detected as a result of the lifestyle monitoring, the NACP must submit a request to the SAPO to initiate civil forfeiture proceedings before the court (Article 19). The competent counter-corruption entities that receive such a protocol from the NACP are required to review it and must report back to the NACP, within five days, on the outcome of that review (Article 12.7 of the LPC).

49 ECtHR, Jankovic v. Slovenia, no. 15118/22, 16 September 2025, para. 59 25  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

86. While these provisions are generally welcome in principle, as they provide a procedural framework to be followed when signs of corruption-related offences are detected as a result of the lifestyle monitoring, several aspects could be further improved and clarified. 87. First, the Draft Procedure refers to “administrative offence related to corruption” (Article 17) and “corruption related offences” (Article 18) without making reference to the applicable legislation. In the absence of such cross-references, it might be difficult for a CCU judge to know exactly which administrative or corruption-related offences are encompassed by these provisions. For legal certainty and foreseeability purposes, it is recommended to supplement the Draft Procedure with adequate cross-references to applicable legislation when referring to such offences. 88. Second, the Draft Procedure does not define the grounds on which the Head or the Deputy the Head of the NACP may decide to approve or reject a reasoned conclusion (when “another corruption-related offence” is suspected) and to forward it to the competent anti- corruption body for further action. Moreover, the Draft Procedure does not require that such decisions be reasoned. This arrangement is problematic as it may allow for arbitrary decisions regarding whether to submit relevant materials and the report identifying signs of an offence to the competent authority. The absence of predetermined criteria at each level of review and approval risks creating an opaque area of discretion within the NACP. In this context, unless regulated elsewhere, the legal drafters should consider specifying the grounds on which the Head or Head Deputy of the NACP may decide to reject the reasoned conclusions in cases involving signs of “another corruption- related offence” and requiring that such decisions be duly justified (see also para. 81 and recommendation C.3 supra). 89. Third, the Draft Procedure does not prescribe any deadlines for the Head or Deputy Head of the NACP to undertake the follow-up actions required once signs of offence have been identified as a result of the lifestyle monitoring. More precisely, the Draft Procedure does not provide any timeline for the Head or Deputy Head of the NACP to prepare the protocol in case of signs of administrative offence related to corruption, send it to the competent court, and inform the Chairperson of the CCU (Article 17), to approve the conclusions in case of signs of “another corruption related offence”, and send to the competent counter-corruption entities, and inform the Chairperson of the CCU; and to send the relevant materials to the SAPO in case of signs of unexplained wealth to initiate a civil forfeiture procedure (Article 19). For legal clarity and foreseeability purposes, it is recommended to prescribe clear deadlines for each of these steps in the Draft Procedure

RECOMMENDATION D. 1. Unless regulated elsewhere, to specify in the Draft Procedure the grounds on which the Head or the Deputy Head of the NACP may refuse to approve the reasoned conclusions in cases involving signs of “another corruption-related offence”, and require that such refusal be accompanied by a reasoned justification. 2. To specify in the Draft Procedure a timeline for the Head or Deputy Head of the NACP to undertake the follow-up actions required once signs of corruption-related offence have been identified as a result of the lifestyle monitoring.

[END OF TEXT]

26 Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

27  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

ANNEX 1- DRAFT PROCEDURE FOR MONITORING THE LIFESTYLE OF A JUDGE OF THE CONSTITUTIONAL COURT OF UKRAINE

APPROVED by Order of the National Agency for Prevention of Corruption 2025 № Procedure for Monitoring the Lifestyle of a Justice of the Constitutional Court of Ukraine

1. This Procedure defines the process for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine by the National Agency on Corruption Prevention (NACP). 2. Monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine is carried out in order to establish the compliance of the lifestyle of a Justice of the Constitutional Court of Ukraine with the property available to him and members of his family and the income received by them according to the declaration of a person authorized to perform the functions of the state or local self-government (hereinafter — the declaration), in accordance with the legislation on the protection of personal data, and shall not provide for excessive interference in the right to the inviolability of private and family life of a person. 3. In this Procedure, the terms are used in the following meaning: analysis — a preliminary check of the information that precedes the decision to start monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine for compliance of the lifestyle of the Justice of the Constitutional Court of Ukraine with the property and income received by him and his family members in accordance with the declaration, which shall be carried out using the rights of the NACP provided for by Article 12 of the Law of Ukraine "On Prevention of Corruption" (hereinafter — the Law), in particular, through direct automated access to information, communication and reference systems, resources, data banks (including those containing information with restricted access), the holders or administrators of which are state bodies or local self-government bodies, as well as using state, including governmental, means of commutation and communications, special communication networks and other technical means;

28  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

acquisition of assets — acquisition of assets by a Justice of the Constitutional Court of Ukraine, as well as acquisition of assets by another individual or legal entity in case of discovery of evidence that such acquisition was carried out on behalf of a Justice of the Constitutional Court of Ukraine or that a Justice of the Constitutional Court of Ukraine can directly or indirectly perform actions identical in content to the exercise of the right to dispose of them in relation to such assets; excessive interference with the right to inviolability of a person's private and family life — actions, that go beyond the powers and rights of the NACP provided for by Articles 11, 12 of the Law;

non-compliance of the lifestyle of a Justice of the Constitutional Court of Ukraine — the difference between the real (market) value of the acquired assets and other expenses incurred by the Justice of the Constitutional Court of Ukraine and the property and income declared by him/her; lifestyle of a Justice of the Constitutional Court of Ukraine — forms of behaviour of a Justice of the Constitutional Court of Ukraine, reflecting his standard of living and including being in possession or using assets, acquisition of assets, expenses to pay for services, works, financial obligations, performance of other transactions by a Justice of the Constitutional Court of Ukraine. Other terms are used in the meanings given in the Law. 4. Any unlawful influence, pressure or interference in the activities of a Justice of the Constitutional Court of Ukraine during the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine is prohibited. An authorized official of the NACP, who committed actions or inaction that violated the guarantees of independence of a Justice of the Constitutional Court of Ukraine, is subject to disciplinary liability in accordance with the procedure established by law. 5. During the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine, in particular, circumstances that are important for detecting potential illicit enrichment or unjustified assets are checked. 6. Information on the initiation, conduction and results of monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine constitutes information with restricted access and is subject to protection in accordance with the legislation on the protection of information with restricted access. 7. The NACP carries out selective monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine on the basis of information about non-compliance of the lifestyle of a Justice of the Constitutional Court of

29  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

Ukraine discovered during the analysis. 8. Monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine shall be carried out by the NACP on the basis of information received from individuals and legal entities, as well as from the media and other open sources containing information about the non-compliance of the lifestyle of a Justice of the Constitutional Court of Ukraine. 9. The decision to initiate monitoring of the lifestyle of the Justice of the Constitutional Court of Ukraine shall be made by the head of an independent structural unit of the NACP on the basis of a submission of an authorized official of the NACP, which contains information on signs of non- compliance of the lifestyle of a Justice of the Constitutional Court of Ukraine, approved by the Head of the NACP or by his deputy. The next working day following the day of adoption by the head of an independent structural unit of the NACP of the decision to initiate monitoring in accordance with the first part of this paragraph shall be considered the day of initiation of monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine. The NACP shall urgently, but not later than on the next working day from the date of initiation of the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine, inform thereof the Chief Justice of the Constitutional Court of Ukraine. 10. The duration of monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine shall amount to 180 days from the date of its initiation. 11. The duration of monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine may be extended for a period of no more than 180 days upon approval of the head of an independent structural unit of the NACP and the Head of the NACP or his deputy on the basis of a submission by the authorized official of the NACP or of the direct supervisor of such official in the following cases: 1) when no documents or information on the merits necessary for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine have been received, or in case of receipt of documents and information, the verification of which requires sending requests to state bodies, authorities of the Autonomous Republic of Crimea, local self-government bodies, notaries, business entities regardless of their form of ownership and to their officials, citizens and associations, and to the Justice of the Constitutional Court of Ukraine; 2) when, on the last day of the term for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine, the authorized official of the NACP has not received information from the banking institution about the 30  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

disclosure of the bank secrecy; 3) when no reply has been received to the request addressed to the state and other competent authorities of foreign states to provide the information necessary to monitor the lifestyle of a Justice of the Constitutional Court of Ukraine, or in connection with the need to translate into Ukrainian the received documents or information;

4) when no expert opinion has been obtained on the value (price) of assets, including the minimum market value. 12. While monitoring the lifestyle of Justices of the Constitutional Court of Ukraine, the following types of information are used: 1) data obtained from information, communication and reference systems, registers, data banks, including those containing information with restricted access, the holder (administrator) of which are state or local self- government bodies, as well as information from open databases, registers of foreign states, court decisions that have entered into force, other sources that may contain information about the lifestyle of a Justice of the Constitutional Court of Ukraine; 2) documents and/or information provided by a Justice of the Constitutional Court of Ukraine; 3) documents and/or information, including those with restricted access, received from (provided by) state bodies, local self-government bodies, notaries, businesses regardless of their form of ownership and their officials, specialists, experts, citizens and organizations, as well as from state and other competent authorities of foreign countries; 4) information from the media, the Internet, other sources of information relating to the Justice of the Constitutional Court of Ukraine and containing verifiable factual data; 5) all information available to the NACP, including data: received by the NACP during preliminary checks of declarations submitted by a Justice of the Constitutional Court of Ukraine and/or members of his family, other persons; collected during the control of declarations with the help of software tools of the information and communication system for conducting logical and arithmetic control of declarations, monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine; collected from reports of whistleblowers and other applicants; obtained during the exercise of the powers of the NACP to monitor and control the implementation of legislative acts on ethical behaviour, prevention and settlement of conflicts of interest in the activities of persons, authorized to perform the functions of the state or of local self-government, 31  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

and persons equated to them, as well as control over compliance by these persons with restrictions for the prevention of corruption; 6) information and/or documents received from law enforcement agencies, including from the materials of criminal proceedings, the permission to use which and references to which in the documents of the NACP were provided by the inquiring officer, investigator, detective or prosecutor in accordance with the requirements of the Criminal Procedure Code of Ukraine. The NACP shall receive information containing a bank secret and necessary for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine in accordance with the procedure established by law. 13. In case of establishing non-compliance of the lifestyle of a Justice of the Constitutional Court of Ukraine, the NACP shall inform the Justice of the Constitutional Court of Ukraine about this fact and give him the opportunity to provide a written explanation thereof within 10 working days. 14. The decision to complete the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine is made by the head of an independent structural unit of the NACP on the basis of a submission of the authorized official of the NACP, approved by the Head of the NACP and/or his deputy. 15. Based on the results of monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine, the authorized official of the NACP shall prepare and sign a memorandum, which is approved by the Head of the NACP and/or his deputy. The memorandum on the results of monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine shall contain the following information: the date of initiation and grounds for conducting the monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine; account of the activities and their results, established facts of compliance / non-compliance of the lifestyle of the justice of the Constitutional Court of Ukraine, failure to comply with other requirements of the Law; response measures taken by the NACP against a justice of the Constitutional Court of Ukraine within the limits of its rights and powers determined by the Law (if any). 16. Within 5 days from the date of completion of the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine, the NACP shall inform the Justice of the Constitutional Court of Ukraine about the results of the monitoring using the software of the Unified State Register of Declarations of Persons, authorized to perform the functions of the state or local self- government, or via postal or electronic communication. 17. In case of discovery of signs of an administrative offence 32  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

related to corruption committed by a Justice of the Constitutional Court of Ukraine, the Head of the NACP or his/her deputy shall prepare the protocol on such an offence and send it to the court in accordance with the procedure established by law, as well as inform thereof the Chief Justice of the Constitutional Court of Ukraine. 18. In case of discovery at any stage of monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine of signs of another corruption-related offence committed by a Justice of the Constitutional Court of Ukraine, the Head of the NACP or his/her deputy shall approve the justified conclusion thereof and send it to other specially authorized entities in the field of combating corruption, as well as inform the Chief Justice of the Constitutional Court of Ukraine about the fact of approval of such a conclusion. 19. In case of discovery of evidence that a Justice of the Constitutional Court of Ukraine acquired unjustified assets or, that such assets were acquired by another person on his behalf or in other cases provided for by Article 290 of the Civil Procedure Code of Ukraine, the NACP shall initiate before the Specialized Anti-Corruption Prosecutor's Office or in cases determined by law — before the Office of the Prosecutor General — the issue of applying to court with a claim for recognition of those assets as unjustified and their recovery in favour of the state. 20. Record-keeping of the monitoring of the lifestyle of Justices of the Constitutional Court of Ukraine and its results is carried out in electronic form by software and hardware means in the electronic document management system.

Head of the Department for DMYTRO SOKOLOV Lifestyle Monitoring and Control of Completeness of Filling out Declarations

33 Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

34 ANNEX 2 – COMPARISON OF THE DRAFT PROCEDURE FOR MONITORING THE LIFESTYLE OF A JUDGE OF THE CCU AND THE P ROCEDURE FOR MONITORING THE LIFESTYLE OF PUBLIC OFFICES (NACP DECREE 236/23) (by author of this opinion)

[General] Procedure for lifestyle monitoring of subjects of declaring Draft Procedure for Monitoring the Lifestyle of a CCU Judge (NACP Decree 236/23

1. This Procedure defines the procedure for the National Agency for the 1. This Procedure defines the process for monitoring the lifestyle of a Justice Prevention of Corruption (hereinafter - the National Agency) for lifestyle of the Constitutional Court of Ukraine by the National Agency on Corruption monitoring of subjects of declaring. Prevention (NACP).

2. Lifestyle monitoring of the subjects of declaring is carried out in order to 2. Monitoring of the lifestyle of a Justice of the Constitutional Court of establish the conformity of their standard of living with the property they and Ukraine is carried out in order to establish the compliance of the lifestyle of a their family members have and the income they receive in accordance with the Justice of the Constitutional Court of Ukraine with the property available to declarations of the person authorized to perform the functions of the state or him and members of his family and the income received by them according to local self-government, in compliance with the legislation on protection the declaration of a person authorized to perform the functions of the state or personal data and should not involve excessive interference with the right to local self-government (hereinafter — the declaration), in accordance with the privacy of a person's personal and family life. legislation on the protection of personal data, and shall not provide for excessive interference in the right to the inviolability of private and family life of a person.

3. In this Procedure, the terms are used in the following meanings: 3. In this Procedure, the terms are used in the following meaning:

analysis — a preliminary check of the information that precedes the decision to start monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine for compliance of the lifestyle of the Justice of the Constitutional Court of Ukraine with the property and income received by him and his family members in accordance with the declaration, which shall be carried out using the rights of the NACP provided for by Article 12 of the Law of Ukraine "On Prevention of Corruption" (hereinafter — the Law), in particular, through direct automated access to information, communication and reference systems, resources, data banks (including those containing information with restricted access), the holders or administrators of which are state bodies or local self- government bodies, as well as using state, including governmental,  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

means of commutation and communications, special communication networks and other technical means;

acquisition of assets – acquisition of assets by the subject of declaring acquisition of assets — acquisition of assets by a Justice of the into ownership, as well as acquisition of assets into ownership by Constitutional Court of Ukraine, as well as acquisition of assets by another natural or legal entity in the case of establishing evidence that another individual or legal entity in case of discovery of evidence that such acquisition was carried out on behalf of the subject of declaring or such acquisition was carried out on behalf of a Justice of the that the subject of declaring can directly or indirectly commit in relation Constitutional Court of Ukraine or that a Justice of the Constitutional to such assets, actions identical in content to the exercise of the right to Court of Ukraine can directly or indirectly perform actions identical in dispose of them; content to the exercise of the right to dispose of them in relation to such assets;

excessive interference with the right to privacy of a person's personal excessive interference with the right to inviolability of a person's and family life - actions that go beyond the powers and rights of the private and family life — actions, that go beyond the powers and rights of National Agency, provided for in Articles 11 and 12 of the Law of the NACP provided for by Articles 11, 12 of the Law; Ukraine "On Prevention of Corruption" (hereinafter - the Law);

inconsistency of the standard of living of the subject of declaring - the non-compliance of the lifestyle of a Justice of the Constitutional Court of difference between the real (market) value of the acquired assets and Ukraine — the difference between the real (market) value of the acquired other expenses incurred by the subject of the declaring with the property assets and other expenses incurred by the Justice of the Constitutional and income declared by him; Court of Ukraine and the property and income declared by him/her;

lifestyle of the subject of declaring – forms of behaviour of the subject lifestyle of a Justice of the Constitutional Court of Ukraine — forms of of declaring, which reflect his standard of living and include being in behaviour of a Justice of the Constitutional Court of Ukraine, reflecting possession or use of such subject of declaration of assets, acquisition of his standard of living and including being in possession or using assets, assets, expenses for payment of services, works, financial obligations, acquisition of assets, expenses to pay for services, works, financial committing other transactions by the subject of declaring. obligations, performance of other transactions by a Justice of the Constitutional Court of Ukraine.

Other terms are used in the meanings given in the Law. Other terms are used in the meanings given in the Law.

4. Any unlawful influence, pressure or interference in the activities of a Justice of the Constitutional Court of Ukraine during the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine is prohibited. An authorized official of the NACP, who committed actions or inaction that violated the guarantees of independence of a Justice of the Constitutional

36  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

Court of Ukraine, is subject to disciplinary liability in accordance with the procedure established by law.

5. During the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine, in particular, circumstances that are important for detecting potential illicit enrichment or unjustified assets are checked.

6. Information on the initiation, conduction and results of monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine constitutes information with restricted access and is subject to protection in accordance with the legislation on the protection of information with restricted access.

4. The National Agency carries out selective lifestyle monitoring of the 7. The NACP carries out selective monitoring of the lifestyle of a Justice of subjects of declaring based on the information revealed during the analysis the Constitutional Court of Ukraine on the basis of information about non- about the discrepancy in the standard of living of the subject of declaring. compliance of the lifestyle of a Justice of the Constitutional Court of Ukraine discovered during the analysis.

5. Lifestyle monitoring of the subjects of declaring is carried out by the 8. Monitoring of the lifestyle of a Justice of the Constitutional Court of National Agency on the basis of information received from individuals and Ukraine shall be carried out by the NACP on the basis of information received legal entities, as well as from the media and other open sources of from individuals and legal entities, as well as from the media and other open information, which contains information about the discrepancy in the standard sources containing information about the non-compliance of the lifestyle of a of living of the subjects of declaring. Justice of the Constitutional Court of Ukraine.

6. The decision to initiate monitoring the lifestyle of the subject of declaring 9. The decision to initiate monitoring of the lifestyle of the Justice of the is made by the head of an independent structural subdivision of the National Constitutional Court of Ukraine shall be made by the head of an independent Agency's apparatus on the basis of a corresponding report on the presence of structural unit of the NACP on the basis of a submission of an authorized signs of inconsistency in the standard of living of the subject of declaring. official of the NACP, which contains information on signs of non-compliance of the lifestyle of a Justice of the Constitutional Court of Ukraine,

approved by the Head of the NACP or by his deputy.

The next working day following the day of adoption by the head of an independent structural unit of the NACP of the decision to initiate monitoring in accordance with the first part of this paragraph shall be considered the day of initiation of monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine.

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The NACP shall urgently, but not later than on the next working day from the date of initiation of the monitoring of the lifestyle of a Justice of the Constitutional Court of Ukraine, inform thereof the Chief Justice of the Constitutional Court of Ukraine.

10. The duration of monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine shall amount to 180 days from the date of its initiation.

11. The duration of monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine may be extended for a period of no more than 180 days upon approval of the head of an independent structural unit of the NACP and the Head of the NACP or his deputy on the basis of a submission by the authorized official of the NACP or of the direct supervisor of such official in the following cases:

1) when no documents or information on the merits necessary for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine have been received, or in case of receipt of documents and information, the verification of which requires sending requests to state bodies, authorities of the Autonomous Republic of Crimea, local self- government bodies, notaries, business entities regardless of their form of ownership and to their officials, citizens and associations, and to the Justice of the Constitutional Court of Ukraine;

2) when, on the last day of the term for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine, the authorized official of the NACP has not received information from the banking institution about the disclosure of the bank secrecy;

3) when no reply has been received to the request addressed to the state and other competent authorities of foreign states to provide the information necessary to monitor the lifestyle of a Justice of the Constitutional Court of Ukraine, or in connection with the need to translate into Ukrainian the received documents or information;

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4) when no expert opinion has been obtained on the value (price) of assets, including the minimum market value.

7. When the lifestyle monitoring of the subjects of declaring is performed, the 12. While monitoring the lifestyle of Justices of the Constitutional Court of following information is used: Ukraine, the following types of information are used:

1) information obtained from information and communication and 1) data obtained from information, communication and reference reference systems, registers, data banks, including those containing systems, registers, data banks, including those containing information information with limited access, the holder (administrator) of which is with restricted access, the holder (administrator) of which are state or state bodies or local self-government bodies, as well as information from local self-government bodies, as well as information from open open databases, registers of foreign states, court decisions that have databases, registers of foreign states, court decisions that have entered entered into legal force, other sources that may contain information into force, other sources that may contain information about the lifestyle about the lifestyle of the subject of declaring; of a Justice of the Constitutional Court of Ukraine;

2) documents and/or information provided by the subject of declaring; 2) documents and/or information provided by a Justice of the Constitutional Court of Ukraine;

3) documents and/or information, including those with limited access, 3) documents and/or information, including those with restricted access, received (received) from state bodies, local self-government bodies, received from (provided by) state bodies, local self-government bodies, notaries, business entities regardless of the form of ownership and their notaries, businesses regardless of their form of ownership and their officials, specialists, experts, citizens and their associations, as well as officials, specialists, experts, citizens and organizations, as well as from from state and other competent authorities of foreign countries; state and other competent authorities of foreign countries;

4) information from the media, the Internet, other sources of information 4) information from the media, the Internet, other sources of information that relate to a specific subject of declaring and contain factual data that relating to the Justice of the Constitutional Court of Ukraine and can be verified; containing verifiable factual data;

5) all information available at the National Agency, including: 5) all information available to the NACP, including data:

received by the National Agency during previous verifications of received by the NACP during preliminary checks of declarations submitted by the subject of declaring and/or his declarations submitted by a Justice of the Constitutional Court family members, other persons; of Ukraine and/or members of his family, other persons;

collected during the control of declarations using software tools collected during the control of declarations with the help of of the information and communication system for logical and software tools of the information and communication system for conducting logical and arithmetic control of declarations,

39  Opinion on the Draft Procedure for Monitoring the Lifestyle of a Judge of the Constitutional Court of Ukraine

arithmetic control of declarations, lifestyle monitoring of the monitoring of the lifestyle of a Justice of the Constitutional subject of declaring; Court of Ukraine;

collected as a result of considering the reports of collected from reports of whistleblowers and other applicants; whistleblowers, other subjects of appeal;

obtained during the performance of powers to monitor and obtained during the exercise of the powers of the NACP to control the implementation of acts of legislation on ethical monitor and control the implementation of legislative acts on behaviour, prevention and settlement of conflicts of interest in ethical behaviour, prevention and settlement of conflicts of the activities of persons authorized to perform the functions of interest in the activities of persons, authorized to perform the the state or local self-government, and persons equivalent to functions of the state or of local self-government, and persons them, as well as control of compliance by the specified persons equated to them, as well as control over compliance by these with restrictions regarding the prevention of corruption; persons with restrictions for the prevention of corruption;

6) information and/or documents received from law enforcement 6) information and/or documents received from law enforcement agencies, including from materials of criminal proceedings, permission agencies, including from the materials of criminal proceedings, the to use which and references in documents of the National Agency to permission to use which and references to which in the documents of the which were provided to the investigator, detective or prosecutor in NACP were provided by the inquiring officer, investigator, detective or accordance with the requirements of the Criminal Procedure Code of prosecutor in accordance with the requirements of the Criminal Ukraine. Procedure Code of Ukraine.

The National Agency receives information containing banking secrets and The NACP shall receive information containing a bank secret and necessary necessary for lifestyle monitoring of the subjects of declaring, in accordance for monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine with the procedure defined by the legislation. in accordance with the procedure established by law.

8. In the case of establishing a discrepancy in the standard of living of the 13. In case of establishing non-compliance of the lifestyle of a Justice of the subject of declaring, the National Agency informs the subject of declaring Constitutional Court of Ukraine, the NACP shall inform the Justice of the about this fact and gives him the opportunity to provide a written explanation Constitutional Court of Ukraine about this fact and give him the opportunity to for this fact within ten working days. provide a written explanation thereof within 10 working days.

9. The decision to complete the lifestyle monitoring of the subject of declaring 14. The decision to complete the monitoring of the lifestyle of a Justice of the is made by the head of an independent structural subdivision of the National Constitutional Court of Ukraine is made by the head of an independent Agency's apparatus based on the report of the person who monitored the structural unit of the NACP on the basis of a submission of the authorized lifestyle of the subject of declaring. official of the NACP, approved by the Head of the NACP and/or his deputy.

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10. Based on the results of the lifestyle monitoring of the subject of declaring, 15. Based on the results of monitoring the lifestyle of a Justice of the a report is prepared, which includes: Constitutional Court of Ukraine, the authorized official of the NACP shall prepare and sign a memorandum,

which is approved by the Head of the NACP and/or his deputy.

The memorandum on the results of monitoring the lifestyle of a Justice of the Constitutional Court of Ukraine shall contain the following information:

the start date and grounds for lifestyle monitoring of the subject of the date of initiation and grounds for conducting the monitoring the declaring; lifestyle of a Justice of the Constitutional Court of Ukraine;

the content of the measures and their results, established facts of account of the activities and their results, established facts of compliance conformity/non-conformity of the standard of living of the subjects of / non-compliance of the lifestyle of the justice of the Constitutional declaring, non-fulfillment of other requirements of the Law; Court of Ukraine, failure to comply with other requirements of the Law;

response measures taken by the National Agency in relation to the subject response measures taken by the NACP against a justice of the of declaring within the limits of the rights and powers defined by the Law Constitutional Court of Ukraine within the limits of its rights and powers (if any). determined by the Law (if any).

11. Within 5 days from the day of completion of the lifestyle monitoring of the 16. Within 5 days from the date of completion of the monitoring of the subject of declaring, the National Agency, using the software of the Unified lifestyle of a Justice of the Constitutional Court of Ukraine, the NACP shall State Register of Declarations of Persons Authorized to Perform the Functions inform the Justice of the Constitutional Court of Ukraine about the results of the of the State or Local Self-Government, or postal or electronic communication, monitoring using the software of the Unified State Register of Declarations of sends a message to such a subject of declaring about the results of lifestyle Persons, authorized to perform the functions of the state or local self- monitoring carried out in relation to him. government, or via postal or electronic communication.

12. In case of detection of signs of a corruption-related administrative 17. In case of discovery of signs of an administrative offence related to offence, the National Agency draws up a report on such an offence in corruption committed by a Justice of the Constitutional Court of Ukraine, the accordance with the Code of Ukraine on Administrative Offenses, which is Head of the NACP or his/her deputy shall prepare the protocol on such an sent to the court. offence and send it to the court in accordance with the procedure established by law,

as well as inform thereof the Chief Justice of the Constitutional Court of Ukraine.

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13. In the event that at any stage of the lifestyle monitoring of the subject of 18. In case of discovery at any stage of monitoring of the lifestyle of a Justice declaring, signs of another corruption offence or a corruption-related offence of the Constitutional Court of Ukraine of signs of another corruption-related are detected, the National Agency approves a substantiated opinion and sends offence committed by a Justice of the Constitutional Court of Ukraine, the it to other specially authorized bodies for combatting corruption. Head of the NACP or his/her deputy shall approve the justified conclusion thereof and send it to other specially authorized entities in the field of combating corruption,

as well as inform the Chief Justice of the Constitutional Court of Ukraine about the fact of approval of such a conclusion.

14. In the case of establishing evidence that the subject of declaring acquired In case of discovery of evidence that a Justice of the Constitutional Court of unjustified assets or that such assets were acquired by another person on his Ukraine acquired unjustified assets or, that such assets were acquired by behalf or in other cases provided for in Article 290 of the Civil Procedure another person on his behalf or in other cases provided for by Article 290 of Code of Ukraine, the National Agency shall bring before the Specialized Anti- the Civil Procedure Code of Ukraine, the NACP shall initiate before the Corruption Prosecutor's Office or in cases specified by law - before the Specialized Anti-Corruption Prosecutor's Office or in cases determined by law General Prosecutor's Office, the question of applying to the court with a claim — before the Office of the Prosecutor General — the issue of applying to court for recognition of assets as unjustified and their collection into state income. with a claim for recognition of those assets as unjustified and their recovery in favour of the state.

15. Recording of the lifestyle monitoring of the subjects of declaring and their Record-keeping of the monitoring of the lifestyle of Justices of the results is carried out in electronic form by software and technical means in the Constitutional Court of Ukraine and its results is carried out in electronic form system of electronic document circulation. by software and hardware means in the electronic document management system.

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