Two wrongs won’t make a right: fixing Ukraine’s consti­tu­tional court

Foto: Shut­ter­stock, paparazzza

In late March 2021 Ukrainian President Volodymyr Zelensky revoked a decree made by runaway president Viktor Yanukovych appointing Oleksandr Tupytsky and Oleksandr Kasminin to the Consti­tu­tional Court. This raised eyebrows in the legal community and in civil society, but also won him some plaudits. Is this the path for fixing Ukraine’s broken judiciary? (Zur Deutschen Über­set­zung hier klicken.)

The 2020 consti­tu­tional crisis

The Ukrainian Consti­tu­tional Court is no stranger to scandal. In October 2020, the Court abolished state officials’ criminal liability if they failed to declare or falsely declared their assets, creating a crisis. In addition, the Court has limited the powers of the National Agency on Corrup­tion Preven­tion (NACP), which imple­ments state anti-corrup­tion policy. The estab­lish­ment of the NACP and other new anti­cor­rup­tion insti­tu­tions was one of the corner­stones of Ukraine’s coop­er­a­tion with the West in recent years. The Court’s attack on anti-corrup­tion infra­struc­ture created after the Revo­lu­tion of Dignity has endan­gered that cooperation.

The Court’s actions were followed by protests organized by Ukrainians who feared losing all progress in the battle against corrup­tion. A few days after the Court’s decision, the National Security and Defense Council (NSDC) met to discuss the issue. After the meeting Zelensky blamed oligarchs and ‘old elites,’ and NSDC Secretary Oleksii Danilov said the judges were being influ­enced by the Russian Feder­a­tion. Shortly after that Zelensky intro­duced a bill to dismiss the entire Consti­tu­tional Court. The move contra­dicted the Ukrainian consti­tu­tion since neither the president nor the parlia­ment have the power to dismiss Consti­tu­tional Court judges.

Inter­na­tional criticism

The Venice Commis­sion (VC) crit­i­cized the draft law in an urgent opinion requested by Zelensky himself, stating that the Consti­tu­tional Court should not be “punished” for its decisions and that the dismissal of the judges contra­dicts the rule of law. Nonethe­less, the VC said “that a reform of the Consti­tu­tional Court is warranted”.

The Venice Commis­sion also stressed that the current procedure for appointing Consti­tu­tional Court judges makes them prone to political influence. It said that an important step in reforming the Consti­tu­tional Court would be the intro­duc­tion of a trans­parent compet­i­tive procedure for the selection of judges. The latter, in VC experts’ opinion, should be carried out by an inde­pen­dent panel consisting of respected repre­sen­ta­tives of Ukrainian civil society (such as the members of the Public Integrity Council) and inde­pen­dent inter­na­tional experts (e.g. former judges of the ECHR). The VC stressed the filling the vacancies before such a procedure is imple­mented would be undesirable.

Zelensky’s arbitrary behaviour

Volodymyr Zelensky did not follow the recom­men­da­tions he requested. Instead of improving the law, Zelensky’s majority in the parlia­ment appointed a new judge to the Consti­tu­tional Court under the old system. That judge, Viktor Kychun, is an ally of Zelensky’s repre­sen­ta­tive in the Court and has never gone through the compe­ti­tion and integrity check recom­mended by the VC.

It only became more compli­cated when in December 2020 jour­nal­ists revealed the ‘Tupytsky tapes.’ The tapes appeared to be record­ings of President of the Consti­tu­tional Court Oleksandr Tupytsky’s phone conver­sa­tions, showing his involve­ment in mass corrup­tion and complaining that no one offered him kickback in his previous position.

President Zelensky subse­quently suspended Tupytsky. The move was crit­i­cized by many because the president lacks that power. This did not stop Zelensky from doubling down when he decided to perma­nently remove Tupytsky along with his ally Oleksandr Kasminin. To do that Zelensky suspended the decrees that appointed both judges orig­i­nally issued by then president Viktor Yanukovych.

Bad tradi­tions

For those who follow the Consti­tu­tional Court this may seem familiar. In 2007, President Viktor Yushchenko dismissed Consti­tu­tional Court judge Siuzanna Stanik in the exact same way. In response, the Supreme Court declared the decree illegal, but could not reinstate her. By that time Yushchenko had already appointed a new judge to the Consti­tu­tional Court.

Zelenky’s tactic appears to be similar. He wants to get rid of the judges with bad repu­ta­tions and possibly linked to Russia in whatever way he can and appoint loyal replacements.

But breaking the consti­tu­tion to reform the Consti­tu­tional Court is a contra­dic­tion, even if it may look as if Zelensky is trying to purge the rotten Consti­tu­tional Court. Experts believe that the over­whelming majority of judges indeed lack integrity and the necessary skills. But Zelensky may use cleaning up the court as a pretext for appointing loyal judges and this is dangerous. Thelat­ter­would­helpZe­lensky to win deci­sion­sthat benefit his political agenda.

Violating the rule of law makes things worse

Irre­spec­tive of Zelensky’s real inten­tions, the dismissal of Consti­tu­tional Court judges in such a way is not a good solution for healing Ukraine’s corrupt judiciary and strength­ening the rule of law.

Such a dismissal is obviously uncon­sti­tu­tional as the Consti­tu­tion does not list the cancel­la­tion of a decree of appoint­ment as a ground for dismissal. Moreover, back in 1997 the Consti­tu­tional Court itself stated that a decree appointing an official expires imme­di­ately after it is issued. As a result, cancelling the decree of appoint­ment cannot remove a judge. Normal­izing the practice of dismissing judges in this way (no matter how bad they may be) opens a Pandora’s Box of further dismissals of Consti­tu­tional Court and Supreme Court judges on political grounds.

The decision also paves the way for devel­op­ments which could further undermine the legit­i­macy of the Consti­tu­tional Court. Tupytsky and Kasminin have already chal­lenged the decision in the Supreme Court. In addition, Tupytsky called for a special plenary meeting of the Consti­tu­tional Court to ‘provide a legal assess­ment of the President’s decree.’ In the worst-case scenario, both the Supreme Court and the Consti­tu­tional Court will find Zelensky’s decree uncon­sti­tu­tional, which will reinstate both judges. In the probable case that Zelensky appoints two new judges, the Consti­tu­tional Court will end up having four judges with ques­tion­able legit­i­macy occupying two seats. This will call into question the legit­i­macy of any further decisions it makes.

Zelensky adopted this unlawful decree just a few days after the Venice Commis­sion issued another opinion, this time on an alter­na­tive bill intended to solve the problem with the Consti­tu­tional Court. The commission’s experts explic­itly noted that “the bill does not take into account a key recom­men­da­tion of the Venice Commis­sion — the intro­duc­tion of the trans­parent procedure for selecting judges of the Consti­tu­tional Court,” empha­sizing that “vacancies on the Consti­tu­tional Court should be filled only after improve­ments to the system of appoint­ments.” Ignoring a VC decision portrays Ukraine as a country that does not respect the rule of law.

Those who support Zelensky’s decision claim that although it is uncon­sti­tu­tional, it is correct in spirit. Tupytsky is suspected of having ties to Yanukovych and to the Russian Feder­a­tion. He bought real estate in Russian-annexed Crimea in 2018, drawing up a contract of sale under Russian law and failed to declare it as required by Ukrainian law. Judge Kasminin was also appointed by Yanukovych. The NSDC said his dismissal was a matter of national security.

Fixing the current crisis requires addressing its causes and not just its effects. The current crisis started when the Consti­tu­tional Court itself violated the Consti­tu­tion when it issued its October 2020 decision under­mining anti-corrup­tion archi­tec­ture without proper justi­fi­ca­tion. More hasty uncon­sti­tu­tional decisions not only fail to offer solutions to the crisis, but may exac­er­bate it.

Trans­parent and compet­i­tive selection proce­dures for judges as the best solution to reestab­lish the legitimacy

Genuine and sustain­able reform of the Consti­tu­tional Court should begin with the intro­duc­tion of a trans­parent procedure for the selection of judges. That require­ment stands in the Ukrainian Consti­tu­tion, but has never been enacted. Such a move requires time for its effects to be felt, but has the power to restore public confi­dence in the Consti­tu­tional Court.

Unfor­tu­nately, there is no way out of the crisis that is quick, effective and consti­tu­tional. The judges of the СС are well-protected: they can only be removed because of a criminal convic­tion or by a 2/​3 majority of the Court itself. Criminal proceed­ings can take years and discred­ited judges of the Consti­tu­tional Court will not vote to remove their peers.

But the intro­duc­tion of a compet­i­tive selection procedure would produce a larger a number of trust­worthy judges in a rela­tively short period of time. In addition to the four judges who did not vote for the notorious October 2020 decision, there are two vacant seats in the Court now and two more that will become vacant within a year. With a reformed selection process, this could result in at least 8 judges on the Court with strong standards of profes­sional integrity.

The reform of the Consti­tu­tional Court is just one part of a larger plan. Its reform along with the reform of the High Council of Justice, the High Qual­i­fi­ca­tion Commis­sion of Judges and the notorious District Admin­is­tra­tive Court of Kyiv are key elements of the Judicial Reform Roadmap developed by leading Ukrainian anti-corrup­tion NGOs. It is based on the Justice Reform Agenda and The Agenda for Justice Zelensky and his party endorsed in the run up to the parlia­men­tary election.

Mykhailo Zhernakov,
Nestor Barchuk,

DEJURE Foun­da­tion 


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