This overview, written by TCUP Director Emily Channell-Justice is part of a series on the Constitutional Court crisis. For a primer on the various institutions involved in this discussion, see Ukraine's Judicial Institutions. Check back for original expert comments and an interview about academic research on judicial reform.
Key Bodies and Acronyms
Ukraine is once again struggling to move beyond its reputation as a haven for corrupt practices. This time, the crisis revolves around the Constitutional Court and must be understood in the context of failed judicial reforms since the Euromaidan protests ended in 2014. How did the crisis unfold, and why is it so essential to Ukraine’s future democracy?
On October 27, the Constitutional Court ruled the powers of the National Agency for Preventing Corruption (NAPC) to be unconstitutional, and the Court destroyed Ukraine’s asset declaration system and the penalties associated with lying in these declarations. The publicly accessible asset declarations were a cornerstone in Ukraine’s anti-corruption reforms, because they allowed oversight in the appointment and election of officials, and the NAPC imposed penalties for anyone who was not truthful in their declarations. The asset declaration system was one of the requirements for Ukraine’s loans from the International Monetary Fund, and its destruction may lead to the end of lending from the IMF and a cancellation of Ukraine’s visa-free travel agreement with the European Union. The Constitutional Court did not provide an explanation for its decision, but experts believe that judges were concerned about how they might be affected by anti-corruption prosecutions.
The Constitutional Court is the highest power in Ukraine’s government—its decisions cannot be reversed or appealed, and there is no external oversight committee to assess the judges’ work and enforce their impartiality. Judges’ salaries are about 20 times the country’s national average, but many of the judges’ asset declarations have shown wealth incongruous with even this higher salary, and many judges have registered their property in the names of relatives so these assets would not appear on declarations. Some have noted the outsize influence of pro-Russian parties, and especially oligarch Viktor Medvedchuk’s political sphere, on the court. There are 15 Constitutional Court justices, although there are currently three vacant seats on the court. (See: Who are the CCU judges? from the Anti-Corruption Action Committee.)
Earlier in October, the NAPC stated that certain judges from the Constitutional Court should not be making rulings on issues of asset declarations, as they themselves have conflicts of interest. Four judges were asked to recuse themselves from cases regarding asset declarations and illicit enrichment—two judges are facing criminal cases for failing to disclose major assets; two judges are charged with failing to declare changes in their assets. The head of the court, Oleksandr Tupytsky, may potentially face charges for failing to disclose the above conflicts of interest.
In response to the court’s ruling, President Volodymyr Zelensky called an emergency national security meeting, and he promised swift action to reverse the court’s decision, which legally cannot be appealed. Zelensky’s Cabinet of Ministers ordered the NAPC to reopen the asset declaration system for public access and for the NAPC to resume its monitoring of asset declarations, which it did despite the court’s ruling.
But Zelensky’s biggest move was to draft a law to fire all the Court’s current judges and annul their ruling. Experts agree that this bill is clearly in violation of the Ukrainian Constitution, which only allows Constitutional Court judges to be removed by a vote of two-thirds of their colleagues. Oleksandr Tupytsky called this move a “constitutional coup” and accused the president of putting undue pressure on the court. Ihor Slidenko, one of the judges accused of having a conflict of interest in the case and who voted in favor of destroying the asset declaration system, resigned from the Constitutional Court due to what he claimed was pressure from the presidential administration, though the other judges must approve his resignation.
The Speaker of Parliament, Dmytro Razumkov, together with 100 other lawmakers, also submitted a bill to reinstate the asset declaration system, though this bill does not address any of the underlying assertions about the constitutionality of the system that prompted the Constitutional Court’s decision in the first place. A different group of lawmakers later submitted a bill that would temporarily block the Court’s work by increasing its quorum from 12 to 17 judges. Neither of these bills, nor Zelensky’s earlier bill, was adopted by Parliament.
Response from Ukraine’s allies abroad has been mixed. The G7 Ambassadors made a statement that they “are alarmed by efforts to undo the anti-corruption reforms” that Ukraine has achieved since 2014. An EU spokesperson recognized that the Court’s decision backtracks on Ukraine’s earlier anti-corruption efforts and called on the different branches of government to work together to find a solution. However, a joint statement from the heads of the European Commission for Democracy Through Law (Venice Commission) and the Group of States against Corruption (GRECO) to the Ukrainian Speaker of Parliament warned against adopting Zelensky’s bill because it is unconstitutional.
Ukraine has been through years of failed judicial reforms. President Zelensky submitted a judicial reform bill to the Verkhovna Rada in June, which increased the powers of the High Council of Justice—the highest judicial governing body in Ukraine. But many members of the Council face accusations of corruption and ethics violations, and no oversight committee, which was supposed to include foreign experts, was ever established for the High Council of Justice. In response to the current crisis, Zelensky reconvened the Commission on Legal Reform in November.
Serhii Leshchenko for the Kyiv Post: “Constitutional Court, a cornerstone of corruption, must be stopped”
Alya Shandra for Euromaidan Press: “Ukraine ponders ways to stop ‘legal terrorists’ in Constitutional Court”