“The best way to judge the state is to look at the way justice is done there.”
Stanislaw Jerzy Leс – polish poet and philosopher
The Constitutional Court of Ukraine (CCU) is one of the highest judicial bodies in the country. This institution has a huge influence on political decisions in the country. As it is, the role of CCU is pivotal to maintain political and social stability in Ukraine.
On 27 October 2020, the CCU, with its decision, declared article 366-1 of the Criminal Code of Ukraine unconstitutional. In other words, this article had been removed by the court. But why is this article so important? Shortly after the Revolution of Dignity in 2014, a large-scale process of reforming in the socio-political sphere started in Ukraine. One of the biggest problems of Ukraine is corruption. Major problems arise due to the spread of corruption among Ukrainian statesmen. The article that was repealed by the Constitutional Court was one of the most important in the field of anti-corruption. This article defined the competence of The National Agency for Prevention of Corruption (NAPC), a special body created in 2015 to fight corruption. In addition, the article determined the punishment for providing false information in electronic declarations and punishment for illicit enrichment.
Labeling article 366-1 as unconstitutional had in fact removed the necessity for statesmen to provide in their declarations truthful and complete information about their property. This means that now they can lie about their property, income (including the nature of it) and so on. The consequence of this is that great difficulties were created in the work of the above-mentioned NAPC. In fact, the agency was deprived of the opportunity to verify declarations, as its access to state registers was denied. Thus, the decision to repeal Article 366-1 was a real gift to the corrupt officials as it has paved the way for numerous financial manipulations.
“This was really a shocking decision by the CCU, which undermined much of Ukraine’s achievements in anti-corruption policy, including electronic declarations, and undermined the credibility of the National Agency for the Prevention of Corruption.”
Who is responsible?
The decision that triggered the constitutional crisis was made during a closed session of the CCU, at the suggestion of 47 deputies from the parties “Opposition Platform for Life” and “For the Future.” It should be noted that these parties both stand on Eurosceptic, pro-Russian positions. Among the members of these parties there are many of those who had once been part of the “Party of Regions,” led by Viktor Yanukovych.
It is worth noting that the decision to repeal Article 366-1 can be seen just as the last straw in a series of decisions previously implemented by the CCU that effectively nullified anti-corruption reforms in Ukraine by making them “unconstitutional.” For example, in July 2020, a group of 49 deputies (47 of whom were representatives of the aforementioned “Opposition Platform for Life”) applied to the CCU to declare as an unconstitutional the law that defined the work of the Supreme Anti-Corruption Court of Ukraine. In September, the CCU declared unconstitutional some laws on the National Anti-Corruption Bureau (NABU). Furthermore, orders were passed defining the appointment of Artem Sytnyk to the post of NABU chairman as unconstitutional (he was appointed in 2015 by president Petro Poroshenko).
The decision of the Constitutional Court was initiated by a group of deputies from two parties that are closely related in ideology and goals. As it is, we must pay attention to the problem that was described by both Ukrainian and Western experts. This problem is the politicisation of the CCU. Politicians have a wide influence on the activities of legal institutions. Experts have suggested different ways out of this situation. Quite popular is the idea of increasing the quorum required for decision-making in the CCU from 10 votes to 15. Also, there is a proposal to reduce the number of judges from 19 to 12.
“The problem exists in the election itself – judges are nominated by political parties. This is not right. They (politicians – ed.) should not be part of this process. The Verkhovna Rada (Ukrainian parliament – ed.) and the President mustn`t appoint their judges to the CCU”. (WHO SAID THIS?)
In addition, the very procedure of appointing judges is politicised. Politicians are trying to put forward the “right” people. As a result, judges became those people who will satisfy the interests of their “patron”.
“The reason for this decision (on declaring Article 366-1 of the Criminal Code of Ukraine unconstitutional – ed.) is the qualification of judges of the Constitutional Court and the method of their selection. It is very politicised, and it is not based on human merits and qualities. A new procedure must be set up. In a few months, or at most a year, we will have a better Constitutional Court”.
What did they do?
The constitutional crisis has become a serious test for the current Ukrainian government.
“Volodymyr Zelensky and many officials have shown themselves well as people who create problems but not as people who solve them”. (ATTRIBUTION)
Two days after repealing Article 366-1, President Zelensky submitted to the Verkhovna Rada a draft law on the early termination of the competence of CCU judges. De facto this law should have legalised dissolution of the Constitutional Court. This proposal was negatively perceived by many deputies and after all rejected.
“The president’s proposal to dissolve the Constitutional Court is unfounded. This is not an ordinary court. We are dealing with the highest judicial structure in the country. You can’t just fire the judges who work there. In the end, it will have far-reaching negative consequences”.
Ukraine’s parliament has decided to compromise and reinstated anti-corruption laws that were repealed by the CCU on 4 December, although in legal terms it wasn’t the best solution.
“False information in declarations must be punished. It’s obvious”.
However, the confrontation with the Constitutional Court did not end there. At the end of December, President Zelensky signed a decree on the resignation of the head of the CCU, Oleksandr Tupytsky. He has been investigated on numerous charges of providing false information to investigators and pressuring witnesses. In addition, Tupitsky is accused of not declaring a plot of land in the Russian-occupied Crimea.
Constitutional crisis has become a kind of examination for Ukrainian policy makers and society at large. Despite the fact that idea of dissolution of the Constitutional Court of Ukraine was not realised, it found support among some Ukrainians. Experts warn of far-reaching negative consequences» after dissolution of the CCU, for example manipulations with the judicial system to satisfy personal interests.
The crisis, caused by the decision of the Constitutional Court of Ukraine, jeopardised not only the domestic situation but also international relations of our state with western partners. Both partnership with the EU and grant aid from western partners were under threat.
“Decision (of CCU about acceptance of article 366-1 of the Ukrainian Criminal Code as unconstitutional – ed.) was not just directed against the anti-corruption achievements of Ukraine but also against the relationships between Ukraine and its western partners; fight against corruption is the cornerstone of our (Ukraine and the West – ed.) cooperation”.
The Venice Commission provided an assessment on the situation around the Constitutional Court of Ukraine. It considered that by taking such a decision the CCU de facto assumed power, which traditionally is a prerogative of parliament: to determine what is a crime and what’s not. The Commission recommended in this regard initiating a fundamental renewal of the anti-corruption system of Ukraine.
Within the context of what happened with the CCU, some experts highlighted problems with other courts in the country.Consequently, the verdict is unequivocal: it’s not just the Constitutional Court of Ukraine but rather all judiciary requires reforms in Ukraine.
“Constitutional Court is one thing, another one (and it is important) is a rest of judicial institutions in Ukraine. The situation there leaves us to hope for better”.
Despite Ukrainian parliament renewed laws that were repealed by CCU earlier, it’s crucial to understand that another question remains open: a question of effective implementation of these laws in practice.
“It is a typical situation in Ukraine when decisions are taken but then nothing happens. Eventually decisions have no effect”. (ATTRIBUTION)
Western experts emphasised the same problem. They count on development of civil society, which would play the role of watcher for implementation of reforms in practice.
“We are afraid of the situation when amendments are adopted but nothing happens. In this regard, civil society and parties have to provide support and convey the message of importance of reforms to public”.
Undoubtedly, the positive side of this crisis is that Ukraine can count on the support and help of our western allies.
“Whatever happens, Ukraine remains a partner not only for EU but for all the West”.
Foreign experts suggest it`s important for Ukraine to pay attention to the conclusions of the Venice Commission.
“Conclusions of the Venice Commission are an indicator of what the international partners think about Ukraine. In the EU we fight corruption with the rule of law, therefore reforms (in Ukraine – ed.) should be focused on creating a mechanism of preventing corruption. Without progress at the legislative level in the fight against the abuse of power, Ukraine wouldn`t have any progress with international partners”.
Despite support from the West, Ukraine has to understand that the constitutional crisis is primarily its own problem and an indicator of shortcomings that still remain and need to be resolved.
“Don`t expect a resolving of this problem by any international organisation. The problem with the CCU is ours. We have to find the solution to this problem by ourselves, and we have to resolve this problem properly”.
This article has been written by Eduard Dudka, a student of political science at the Kyiv-Mohyla Academy and an intern of Promote Ukraine. This article uses quotes from the participants of the closed conference organised by Promote Ukraine and Vox Ukraine: “Constitutional Crisis in Ukraine. Expert opinion”.