Dear Mr. Gianni Buquicchio,
We highly respect the work of the Venice Commission (European Commission for Democracy through Law) and the commitment of the agency to promoting the rule of law principles across the Council of Europe member states. We appreciate the ongoing support and contribution of the Commission into the development of the judicial reform and rule of law in Ukraine.
We are following the invitation from the Ukrainian government to the Venice Commission expert engagement in finding a fair resolution of the Constitutional crisis in our country.
With this letter, we would like to raise civil society organizations and experts` concerns regarding the decision of the Constitutional Court of Ukraine as of Oct. 27 and the broader context within which this decision was taken. We would also like to share our vision of a feasible way out of the crisis, which will keep Ukraine on the track of EuroAtlantic integration and rule of law reforms, including the comprehensive judicial reform.
Firstly, the decision of the Constitutional Court on abolishing important provisions of corruption prevention law and criminal liability for false statements in asset declarations was taken by the judges in violation of the Ukrainian Constitution. The decision was not provided with any arguments, there was no public discussion of the reasoning behind the decision while that is a public-interest issue, judges extended for no reason the review of clauses challenged by the members of parliament, 3 out of 11 judges who voted for the decision were acting in the conflict of interests. Two Constitutional Court judges failed to submit their notifications on substantial changes in their material status, so the National Association for Corruption Prevention, or NACP, submitted protocols on administrative offenses against them; the obligation to submit such notifications was considered in this constitutional proceeding and both judges benefited from this CCU decision as they avoided administrative liability. Another CCU judge didn’t declare certain assets, these facts were revealed by the NACP during the full verification of her declaration and the criminal proceeding on these facts had been started by NABU. So this CCU judge benefited as this criminal proceeding was closed after the CCU decision.
The decision abolished important provisions of the anti-corruption reform in our country, which Ukraine committed to implementing under the EU-Ukraine visa liberalization action plan, EU macro-financial assistance agreements, Ukraine-IMF memorandums of understanding and thus put at risk the EuroAtlantic direction of Ukraine’s development, which is foreseen by the Constitution. This problem has loudly resonated in the Western media. As the Financial Times editorial explained the situation: “The Constitutional Court is no longer defending the constitution but usurping it.”
Moreover, the CCU decision of Oct. 27 has been a part of the systematic approach to limit the anti-corruption reform and powers of newly-established agencies. In 2019, the CCU revoked the powers of the National Anti-Corruption Bureau (NABU) to file civil lawsuits and declared unconstitutional the provisions on illicit enrichment. In August-September 2020, the CCU revoked Presidential powers to appoint NABU’s director in a way that left a significant loophole in regulation and contradicted the principle of legal certainty.
Secondly, there is strong evidence that Constitutional Court judges who supported the decision were not acting in the interest of rule of law and Ukrainian people, but were used by pro–Kremlin and oligarchic forces within hybrid warfare strategy against Ukrainian democracy and aspirations of Ukrainian people to build rule of law in our country. The decision was triggered by the Constitutional request signed by MPs from political parties, controlled by Viktor Medvedchuk, a proxy of Vladimir Putin in Ukraine, and Igor Kolomoyskyi, an oligarch investigated in Ukraine and in the US for laundering $5 billion from PrivatBank.
The head of the Constitutional Court, Oleksandr Tupytskyi, publicly claims that his mother-in-law resides in Donetsk, which is occupied by Russia since spring 2014. Meanwhile, Tupytskyi lives in a luxurious house in the Kyiv suburbs, which his 80-year-old mother-in-law, a resident of Russian-occupied Donetsk acquired in 2018. Despite the requirements of the law, Tupytskyi didn’t declare the usage of this property. Moreover, Tupytskyi failed to declare the purchase of real estate in Russian-occupied Crimea, which he acquired in 2018 from a Russian citizen under Russian laws in violation of Ukrainian laws. Finally, Tupytskiy has served as a Constitutional Court judge since 2013, when he was appointed at this position by Viktor Yanukovych, who fled to Russia during the EuroMaidan Revolution on Feb. 22, 2014. All these facts indicate that the head of the Constitutional Court of Ukraine lost his legitimacy and poses a threat to the national security of Ukraine, which is under open military and hybrid aggression from the Russian Federation.
Other judges who supported the detrimental decision have also significant issues with integrity.
The Constitutional Court of Ukraine was not truly reformed since the EuroMaidan Revolution that ended Yanukovych’s presidency. Despite the Constitutional amendments in 2016 envisaged competitive selection of judges, the real competition was conducted only once and resulted in an appointment of Mr. Holovatyi and Mr. Lemak who did not support the Constitutional Court decision of Oct. 27.
Thus the court remains a vivid example of abuse of power by corrupt judges serving the interests of oligarchs and pro-Kremlin forces. It is eminent from the Court’s decision that the current composition of the Constitutional Court of Ukraine is manipulating the principle of judicial independence with the goal to destroy the system of judicial accountability. The current practice of the Constitutional Court of Ukraine jointly with the activity of the High Council of Judges helps to keep corrupt judges at their positions.
Considering the facts and arguments described above we believe that the decision of the Constitutional Court of Ukraine is taken by judges acting with conflict of interests mode and therefore violates basic principles of the Ukrainian Constitution and thus should not and could not be fully implemented.
Moreover, the further activity of the Constitutional Court could continue deconstruction of the key reforms achieved by Ukraine since the Revolution of Dignity, specifically land and banking reforms. One of the Constitutional Court judges, who supported the decision on abolishing anti-corruption norms, published a draft decision of the court on land reform. The fact that the draft has been published and used in political negotiations, as well as its content, illustrates the high level of legal nihilism of the majority of the Constitutional Court judges as well as their intention to attack further the EuroAtlantic integration path of Ukraine. Therefore, we believe that the current composition of the Constitutional Court of Ukraine is posing an existential national security threat to the independent state of Ukraine.
The current crisis though might give a great opportunity to establish the new procedure for the selection of the CCU judges, which will guarantee that in the future only truly independent candidates of high integrity are appointed to the CCU.
The complexity of the problem sits in the conflict between the need to protect the principle of separation of powers and the national security interests of Ukraine, which is under constant military and hybrid attacks from the autocratic Kremlin regime. We are dragged into the situation where rule of law principle, which is in the core of liberal democracy and European values, is being used against the aspirations of the people of Ukraine as part of the hybrid legal warfare strategy.
We do hope that the Venice Commission will analyze the detailed context of the constitutional сrisis in Ukraine, including the core roots of the problem. We strongly believe that these preconditions should be taken into consideration, otherwise, we are very much concerned that the Venice Commission could be dragged as well into the dangerous global legal warfare strategy against the core principles of the liberal democracy.
Anticorruption Action Centre
Automaidan
Anti-corruption Headquarters
CHESNO Movement
Anti–corruption Research and Education Centre NaUKMA
Non-governmental organization Women’s Anti-Corruption Movement (WAM)
Center for Public Monitoring and Research
Transparency International Ukraine
Zaporizhzhya сenter of investigations
StateWatch
Centre for Economic Strategy
DEJURE Foundation
