On 27 October, the Appellate Chember of the High Anti-Corruption Court upheld its decision to confiscate MP Illia Kyva’s illicit income of UAH 1.2 million UAH (46,000$).
Although $46,000 is not a very large sum for investigations into illicit enrichment, this is the first decision by the High Anti-Corruption Court according to the simplified procedure of civil forfeiture of illegally acquired property. It is also the first decision of this kind against a national MP in Ukraine’s history.
After 2 years of work, the High Anti-Corruption Court of Ukraine has passed 45 verdicts in total. 27 people, including 9 judges and 2 MPs of regional councils, have been sentenced to 2-10 years of imprisonment on corruption charges. The court is now reaching national MPs, one step closer to top corruption.
The High Anti-Corruption Court was established on 11 April 2019. It was created specifically to consider cases of top officials suspected of corruption after ordinary courts had sabotaged such cases on numerous occasions.
The court decision of 27 October 2021 against Illia Kyva, an MP from the pro-Russian Oppositional Platform, is especially important for two reasons.
Kyva, famous for a wide use of strongmen in discussions, becomes first MP ever found guilty of illicit enrichment in Ukraine
Firstly, the ruling proves that the High Anti-Corruption Court can find an MP guilty of illicit enrichment, whatever his status or wealth. Only ministers remain the last rank of politicians that were never convicted of corruption in Ukraine.
Illia Kiva was one of the most media-active MPs in the Oppositional Platform. This is why the court ruling is receiving special media attention in Ukraine and has become one of the symbols in the fight against corruption.
Kyva is an MP infamous for using fists as arguments in private “conversations” and using informal support of strongmen during his PhD thesis defense. Despite apparent plagiarism, the commission approved his thesis unanimously with all 13 positive votes.
Kyva defends his thesis. Can be read verbatim.
For the first time, the High Anti-Corruption Court of Ukraine successfully applies the mechanism of civil asset forfeiture
Strategically, this case is important because the High Anti-Corruption Court has for the first time applied the procedure of civil asset forfeiture.
“If an official does not live according to declared income (for example, in the declaration indicates a salary of $500 and buys the third Lexus during a year), it can be checked to collect evidence that the money for the Lexus was obtained illegally. If the guilt of the official is confirmed, the illegal earnings are confiscated and transferred to the state budget – no conviction is required for this,” lawyer Nazar Kulchytskyi explains the procedure.
The advantage of civil forfeiture is that the court does not need to prove the very existence of corruption according to criminal proceedings — there is not always enough evidence to determine this. But for civil forfeiture, it is enough to demonstrate that an official received some assets without indicating a legal source for them. In that case, assets are confiscated.
“The plaintiff is obliged to provide facts that confirm the relationship of assets with the authorized person and their illegal sources. The decision to confiscate in civil forfeiture is taken in favor of the party whose evidence is more convincing. There is a so-called ‘preponderance of the evidence’ standard, as opposed to criminal proceedings, where ‘beyond reasonable doubt’ standard works,” lawyer Yuriy Sukhov explains.
In Kyva’s case, the MP declared that he received 1.2 million UAH from the lending of a pulp pit, used in the production of sugar, and a garage. However, the garage was sold earlier while the pit was ruined and could not be lent. It means Kyva received his money from some other unknown sources and failed to declare this.
The mechanism of civil forfeiture primarily threatens local and state officials. And the use of this mechanism against an MP is a huge step forward in Ukraine’s anti-corruption fight.
At the same time, this mechanism cannot replace the ordinary criminal procedure with convictions and sentences to really eradicate corruption.
For criminal proceedings, Ukraine has chosen the way of parallel anti-corruption institutions. The National Anti-Corruption Bureau investigates the crimes of corruption and collects evidence. Then the Specialized Anti-Corruption Prosecutor’s Office presents the evidence at the High Anti-Corruption Court which makes the final decision. The first convictions approved by the Court were positively assessed by experts, but the heaviest strikes against top corruption directly linked to big oligarchs are still in the future.
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