{"id":41781,"date":"2021-04-13T15:48:18","date_gmt":"2021-04-13T13:48:18","guid":{"rendered":"https:\/\/libmod.de\/?p=41781"},"modified":"2021-04-13T16:14:03","modified_gmt":"2021-04-13T14:14:03","slug":"fixing-ukraines-constitutional-court-zhernakov-barchuk","status":"publish","type":"post","link":"https:\/\/libmod.de\/en\/fixing-ukraines-constitutional-court-zhernakov-barchuk\/","title":{"rendered":"Two wrongs won\u2019t make a right: fixing Ukraine\u2019s consti\u00adtu\u00adtional court"},"content":{"rendered":"

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Foto: Shutter\u00adstock, paparazzza<\/figcaption><\/figure>\n

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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 Consti\u00adtu\u00adtional 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\u2019s broken judiciary? (Zur Deutschen \u00dcbersetzung hier klicken.<\/a>)<\/h2>\n

The 2020 consti\u00adtu\u00adtional crisis<\/h3>\n

The Ukrainian Consti\u00adtu\u00adtional Court is no stranger to scandal. In October 2020, the Court abolished state officials\u2019 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 imple\u00adments state anti-corruption policy. The estab\u00adlishment of the NACP and other new anticor\u00adruption insti\u00adtu\u00adtions was one of the corner\u00adstones of Ukraine\u2019s cooper\u00adation with the West in recent years. The Court\u2019s attack on anti-corruption infra\u00adstructure created after the Revolution of Dignity has endan\u00adgered that cooperation.<\/p>\n

The Court\u2019s actions were followed by protests organized by Ukrainians who feared losing all progress in the battle against corruption. A few days after the Court\u2019s decision, the National Security and Defense Council (NSDC) met to discuss the issue. After the meeting Zelensky blamed oligarchs and \u2018old elites,\u2019 and NSDC Secretary Oleksii Danilov said the judges were being influ\u00adenced by the Russian Feder\u00adation. Shortly after that Zelensky intro\u00adduced a bill to dismiss the entire Consti\u00adtu\u00adtional Court. The move contra\u00addicted the Ukrainian consti\u00adtution since neither the president nor the parliament have the power to dismiss Consti\u00adtu\u00adtional Court judges.<\/p>\n

Inter\u00adna\u00adtional criticism<\/h3>\n

The Venice Commission (VC) criti\u00adcized<\/a> the draft law in an urgent opinion<\/a> requested by Zelensky himself, stating that the Consti\u00adtu\u00adtional Court should not be \u201cpunished\u201d for its decisions and that the dismissal of the judges contra\u00addicts the rule of law. Nonetheless, the VC said \u201cthat a reform of the Consti\u00adtu\u00adtional Court is warranted\u201d.<\/p>\n

The Venice Commission also stressed that the current procedure for appointing Consti\u00adtu\u00adtional Court judges makes them prone to political influence. It said that an important step in reforming the Consti\u00adtu\u00adtional Court would be the intro\u00adduction of a trans\u00adparent compet\u00aditive procedure for the selection of judges. The latter, in VC experts\u2019 opinion, should be carried out by an independent panel consisting of respected repre\u00adsen\u00adta\u00adtives of Ukrainian civil society (such as the members of the Public Integrity Council) and independent inter\u00adna\u00adtional experts (e.g. former judges of the ECHR). The VC stressed<\/a> the filling the vacancies before such a procedure is imple\u00admented would be undesirable.<\/p>\n

Zelensky\u2019s arbitrary behaviour<\/h3>\n

Volodymyr Zelensky did not follow the recom\u00admen\u00adda\u00adtions he requested. Instead of improving the law, Zelen\u00adsky\u2019s majority in the parliament appointed a new judge to the Consti\u00adtu\u00adtional Court under the old system. That judge, Viktor Kychun, is an ally of Zelen\u00adsky\u2019s repre\u00adsen\u00adtative in the Court and has never gone through the compe\u00adtition and integrity check recom\u00admended by the VC.<\/p>\n

It only became more compli\u00adcated when in December 2020 journalists revealed the \u2018Tupytsky tapes.\u2019 The tapes appeared to be recordings of President of the Consti\u00adtu\u00adtional Court Oleksandr Tupyt\u00adsky\u2019s phone conver\u00adsa\u00adtions, showing his involvement in mass corruption and complaining that no one offered him kickback in his previous position.<\/p>\n

President Zelensky subse\u00adquently suspended Tupytsky. The move was criti\u00adcized by many because the president lacks that power. This did not stop Zelensky from doubling down when he decided to perma\u00adnently remove Tupytsky along with his ally Oleksandr Kasminin. To do that Zelensky suspended the decrees that appointed both judges origi\u00adnally issued by then president Viktor Yanukovych.<\/p>\n

Bad tradi\u00adtions<\/h3>\n

For those who follow the Consti\u00adtu\u00adtional Court this may seem familiar. In 2007, President Viktor Yushchenko dismissed Consti\u00adtu\u00adtional 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 Consti\u00adtu\u00adtional Court.<\/p>\n

Zelenky\u2019s tactic appears to be similar. He wants to get rid of the judges with bad reputa\u00adtions and possibly linked to Russia in whatever way he can and appoint loyal replacements.<\/p>\n

But breaking the consti\u00adtution to reform the Consti\u00adtu\u00adtional Court is a contra\u00addiction, even if it may look as if Zelensky is trying to purge the rotten Consti\u00adtu\u00adtional Court. Experts believe<\/a> 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. Thelat\u00adter\u00adwould\u00adhelpZe\u00adlensky to win decision\u00adsthat benefit his political agenda.<\/p>\n

Violating the rule of law makes things worse<\/h3>\n

Irrespective of Zelensky\u2019s real inten\u00adtions, the dismissal of Consti\u00adtu\u00adtional Court judges in such a way is not a good solution<\/a> for healing Ukraine\u2019s corrupt judiciary and strength\u00adening the rule of law.<\/p>\n

Such a dismissal is obviously uncon\u00adsti\u00adtu\u00adtional as the Consti\u00adtution does not list the cancel\u00adlation of a decree of appointment as a ground for dismissal. Moreover, back in 1997 the Consti\u00adtu\u00adtional Court itself stated<\/a> that a decree appointing an official expires immedi\u00adately after it is issued. As a result, cancelling the decree of appointment cannot remove a judge. Normal\u00adizing the practice of dismissing judges in this way (no matter how bad they may be) opens a Pandora\u2019s Box of further dismissals of Consti\u00adtu\u00adtional Court and Supreme Court judges on political grounds.<\/p>\n

The decision also paves the way for devel\u00adop\u00adments which could further undermine the legit\u00adimacy of the Consti\u00adtu\u00adtional Court. Tupytsky and Kasminin have already challenged the decision in the Supreme Court. In addition, Tupytsky called for a special plenary meeting of the Consti\u00adtu\u00adtional Court to \u2018provide a legal assessment of the President\u2019s decree.\u2019 In the worst-case scenario, both the Supreme Court and the Consti\u00adtu\u00adtional Court will find Zelensky\u2019s decree uncon\u00adsti\u00adtu\u00adtional, which will reinstate both judges. In the probable case that Zelensky appoints two new judges, the Consti\u00adtu\u00adtional Court will end up having four judges with questionable legit\u00adimacy occupying two seats. This will call into question the legit\u00adimacy of any further decisions it makes.<\/p>\n

Zelensky adopted this unlawful decree just a few days after the Venice Commission issued another opinion<\/a>, this time on an alter\u00adnative bill intended to solve the problem with the Consti\u00adtu\u00adtional Court. The commis\u00adsion\u2019s experts explicitly noted that \u201cthe bill does not take into account a key recom\u00admen\u00addation of the Venice Commission \u2014 the intro\u00adduction of the trans\u00adparent procedure for selecting judges of the Consti\u00adtu\u00adtional Court,\u201d empha\u00adsizing that \u201cvacancies on the Consti\u00adtu\u00adtional Court should be filled only after improve\u00adments to the system of appoint\u00adments.\u201d Ignoring a VC decision portrays Ukraine as a country that does not respect the rule of law.<\/p>\n

Those who support Zelensky\u2019s decision claim that although it is uncon\u00adsti\u00adtu\u00adtional, it is correct in spirit. Tupytsky is suspected of having ties to Yanukovych and to the Russian Feder\u00adation. 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.<\/p>\n

Fixing the current crisis requires addressing its causes and not just its effects. The current crisis started when the Consti\u00adtu\u00adtional Court itself violated the Consti\u00adtution when it issued its October 2020 decision under\u00admining anti-corruption archi\u00adtecture without proper justi\u00adfi\u00adcation. More hasty uncon\u00adsti\u00adtu\u00adtional decisions not only fail to offer solutions to the crisis, but may exacerbate it.<\/p>\n

Trans\u00adparent and compet\u00aditive selection proce\u00addures for judges as the best solution to reestablish the legitimacy<\/h3>\n

Genuine and sustainable reform of the Consti\u00adtu\u00adtional Court should begin with the intro\u00adduction of a trans\u00adparent procedure<\/a> for the selection of judges. That requirement stands in the Ukrainian Consti\u00adtution, but has never been enacted. Such a move requires time for its effects to be felt, but has the power to restore public confi\u00addence in the Consti\u00adtu\u00adtional Court.<\/p>\n

Unfor\u00adtu\u00adnately, there is no way<\/a> out of the crisis that is quick, effective and consti\u00adtu\u00adtional. The judges of the \u0421\u0421 are well-protected: they can only be removed because of a criminal conviction or by a 2\/\u200b3 majority of the Court itself. Criminal proceedings can take years and discredited judges of the Consti\u00adtu\u00adtional Court will not vote to remove their peers.<\/p>\n

But the intro\u00adduction of a compet\u00aditive selection procedure would produce a larger a number of trust\u00adworthy 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 profes\u00adsional integrity.<\/p>\n

The reform of the Consti\u00adtu\u00adtional Court is just one part of a larger plan. Its reform along with the reform of the High Council of Justice, the High Quali\u00adfi\u00adcation Commission of Judges and the notorious District Admin\u00adis\u00adtrative Court of Kyiv<\/a> are key elements of the Judicial Reform Roadmap<\/a> developed by leading Ukrainian anti-corruption NGOs. It is based on the Justice Reform Agenda<\/a> and The Agenda for Justice<\/a> Zelensky and his party endorsed in the run up to the parlia\u00admentary election.<\/p>\n

\n

Mykhailo Zhernakov,
\nNestor Barchuk,<\/p>\n

DEJURE Foundation <\/i><\/p>\n

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