Обмеження принципу презумпції невинуватості нормою про незаконне збагачення в Україні: соціальна обумовленість та тест на пропорційність

Abstract

Social conditionality of modernization of the generally accepted principles of law in the design of an effective mechanism for criminal and legal counteraction to corruption in Ukraine is studied in the article. Fundamentals and state of this mechanism are disclosed. The hypothesis about the necessary transformation of Criminal law in a sphere of responsibility for corruption is put forward and described. The place of mechanism for criminal and legal counteraction to corruption in the system of anti-corruption legal norms is determined. The way in which the presumption of innocence principle has affected the production of the model of the norm on illicit enrichment in the Criminal Code of Ukraine is described together with its disadvantages. The necessity and feasibility of the proportionality test applying in the legal system of Ukraine is proved and its technology is explained. A detailed proportionality test of the restriction of the presumption of innocence principle by the norm on illicit enrichment is conducted. The result of the test is a conclusion about the necessity of presentation of the norm on illicit enrichment in the Criminal Code of Ukraine with the wording close to Article 20 of the UN Convention against corruption with a direct indication that the officials must reasonably justify the legality of a significant increase of their property assets, which does not conform to declared incomes.