Information regarding the regulatory resolution of the Constitutional Court
(№ 19 of 13 June 2023)
The Constitutional Court has considered a citizen's appeals concerning the constitutionality of paragraph of Article 13 of the Law ‘On Combating Corruption’ (hereinafter - the Law) and Article 154 of the Code of Administrative Offences (hereinafter - the CAO).
According to Article 13 of the Law, persons equated to persons authorised to perform State functions are prohibited from engaging in entrepreneurial activities. In case of violation of this prohibition, a person may be held administratively liable under Article 154 of the Code of Administrative Offences.
The subject of the appeal believes that the prohibition established by Article 13 of the Law violates his right to freedom of entrepreneurial activity, as well as the free use of his property for any lawful entrepreneurial activity.
The Constitutional Court considered that restrictions related to the exercise by public officials of the constitutional right to freedom of entrepreneurial activity should be differentiated and conditioned by the nature of their official duties, as stated in paragraph 4 of Article 33 of the Constitution, as well as aimed at preventing them from using their powers for personal, group and other non-official interests. In addition, prohibitions and restrictions should be set in such a way that they are accompanied by other incentive measures. In order to ensure proper implementation of the anti-corruption restriction considered, it is advisable to adopt a normative legal act regulating the issues of transferring property into trust management by persons specified in paragraph 1 of Article 13 of the Law.
The Constitutional Court found Article 13 of the Law to be inconsistent with the Constitution in terms of restricting the right to freedom of entrepreneurial activity of persons equated to persons authorised to perform state functions, if such restriction is not conditioned by the objectives of protecting the constitutional order, protecting public order, human rights and freedoms, public health and morals.
Article 154 of the CAO has been recognised as being in conformity with the Constitution in the interpretation that administrative liability arises only if the prohibition of entrepreneurial activity is established by laws.