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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