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