The Verkhovna Rada ended the week without taking any action to solve the political crisis triggered by the Constitutional Court’s decision to effectively destroy the entire asset declaration system for public servants, a key anti-corruption measure.
The Constitutional Court ruling on Oct. 29 deprived the National Agency for Preventing Corruption, which is tasked with checking declarations, of most of its powers.
The ruling prompted President Volodymyr Zelensky, whose party holds a 246-member majority in the 422-seat parliament, to demand that lawmakers dissolve the 15-member court.
The court’s dismantling of a key facet of Ukraine’s anti-corruption infrastructure could lead to the suspension of visa-free travel with Europe and block further Western funding. Unless the Constitutional Court is stopped, the judges are expected to hear cases that cripple Ukraine’s banking sector and threaten the status of the Ukrainian language as the sole official language.
Multiple bills
Several bills have been submitted to parliament to resolve the impasse with the Constitutional Court. None of them have been passed, and they may be considered next week. It is not clear if there will be enough votes to pass any of them.
On Oct. 30, Zelensky submitted to the Verkhovna Rada, Ukraine’s parliament, the bill seeking to fire all incumbent Constitutional Court judges and treat their decision on asset declarations as null and void.
The bill was seen as the most radical one. The Ukrainian Constitution and law do not allow the dismissal of Constitutional Court judges without the court’s consent, thus giving them absolute immunity and impunity. Adding to the court’s untouchable status, the Rada has no authority to nullify any Constitutional Court decisions. Zelensky has admitted that he was seeking a political, rather than legal, decision to find a way out of the impasse.
On Nov. 2, Verkhovna Rada Speaker Dmytro Razumkov and about 100 other lawmakers submitted a bill to reinstate the asset declaration system in the same way as it was before the Constitutional Court decision. The bill has been lambasted by anti-corruption activists and legal experts, who say that it will be immediately recognized as unconstitutional again by the Constitutional Court and that it does not solve the underlying problem.
On Nov. 3, lawmakers from the Servant of the People and 22-member Holos factions submitted a bill to temporarily block the Constitutional Court’s work by increasing its quorum from 12 to 17 judges. Currently, three of the 18 Constitutional Court seats are vacant.
The Rada also considered on Nov. 6 appointing two judges of the Constitutional Court without a transparent competitive procedure in what some lawmakers claimed would help to resolve the crisis. However, the move has been criticized by anti-corruption activists, who said that the appointment of Constitutional Court judges without competition was unlawful, and that some of the candidates were controversial.
It was not clear how such an appointment would resolve the crisis. It could also exacerbate it by giving the Constitutional Court the necessary quorum. However, parliament eventually decided not to appoint them on Nov. 6.
Zelensky and the Rada have also called on all incumbent Constitutional Court judges to resign as a potential way out of the deadlock. They have refused to do so.
Other solutions
On Nov. 5, four Constitutional Court judges who did not support the cancellation of the asset declaration system – Serhiy Holovaty, Oleh Pervomaisky, Viktor Kolesnyk, and Vasyl Lemak – said they would temporarily refuse to attend court hearings. This will effectively block the court’s work due to a lack of quorum until some of them decide to resume their work.
Vitaly Tytych, a lawyer and ex-head of judicial watchdog Public Integrity Council, argued that one of the possible solutions for the crisis would be for the Constitutional Court to issue an interpretation of its ruling that would narrow its impact and minimize its negative consequences. Such an interpretation could both reinstate the asset declaration system and make sure that officials who committed declaration-related crimes before the Constitutional Court ruling do not escape punishment, he said.
Ihor Slidenko, the rapporteur and the principal architect of the Constitutional Court’s Oct. 29 decision, has already backed down partially, saying that the decision only applied to asset declarations for judges and that a minor change in the wording would allow the Rada to reinstate penalties for lying in asset declarations.
However, this is not clear from the text of the Constitutional Court decision, and the court has not issued an official interpretation that would allow the Rada to reinstate the asset declaration system.
Negative consequences
The Constitutional Court decision is already having a negative impact on corruption investigations.
The National Anti-Corruption Bureau of Ukraine said 110 corruption cases would be closed due to the decision.
On Nov. 5, the High Anti-Corruption Court closed a major corruption case against Odesa Mayor Hennady Trukhanov. In 2019, the NABU charged Trukhanov with failing to declare assets worth Hr 51 million ($2.1 million) owned by his common-law wife Tetiana Koltunova.
Meanwhile, Ukrainian company Altaur, whose servers are used to store officials’ asset declarations, has filed a lawsuit with the Kyiv District Administrative Court to stop storing them based on the Constitutional Court decision.
The Kyiv District Administrative Court is headed by tainted judge Pavlo Vovk, who has been charged with corruption and obstruction of justice.
