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The Constitutional Court can be a threat: How Zelenskyy can save the anti-corruption policy of Ukraine

With the tensions between Ukrainian institutions growing, how far is President Zelenskyy willing to go in order to avoid an unfolding constitutional crisis?

January 11, 2021 - Anton Naychuk - Articles and Commentary

Ukrainian President Volodymyr Zelenskyy discussing land reform with agrarians. Photo: Presidential Administration of Ukraine flickr.com

On October 27th 2020, the Constitutional Court of Ukraine declared Article 366-1 of the Criminal Code of Ukraine unconstitutional, which provides for penalties for incorrect information in asset declarations and certain provisions of the Law on Prevention of Corruption.

It is obvious that such actions of the Constitutional Court of Ukraine (CCU) are causing another political crisis in the country, as they are actually destroying the anti-corruption system and undermining relations with Western partners. This is another challenge for the incumbent president. Currently, the European community condemns the decision of the CCU and expects decisive action from the leader of Ukraine.

“The decision calls into question a number of international commitments which Ukraine assumed in relation to its international partners, including the EU. We urge the Ukrainian authorities to take steps to reinstate as soon as possible the necessary conditions for the effective functioning of the anti-corruption system in Ukraine, in compliance with the Constitution of Ukraine,” representatives of the EU in Ukraine stated in a message.

G7 Ambassadors and the European Parliament also expressed “concern” about the situation. The EU has already stated that the current situation could lead to suspension of the visa-free regime for Ukrainians.

“If a systemic solution to the problem created by the CCU is not found, not only visa-free travel will suffer. We will lose the support of many countries with which we have the largest volumes of trade, which are most supportive of Ukrainian reforms, which support us in the fight against Russian aggression, ” warned Dmytro Kuleba of the Ministry of Foreign Affairs of Ukraine.

The complexity of this situation is that President Volodymyr Zelenskyy is not actually involved in the formation of the current composition of the court. During the time of his presidency, only two of the fifteen current judges were appointed, both by the Congress of Judges of Ukraine, while more than the half of them were appointed during Poroshenko’s presidency (three directly by his decree).

In this situation, there are those who we need to blame. “Heroes” should be sought primarily among the direct authors of the submission to the CCU, of which there are 47 people. 44 are from Opposition Platform — For Life, 2 are from the For the Future party and one is non-partisan. There are many infamous names among them — Medvedchuk, Boyko, Kiva, Surkis, Shufrych, Levochkin and others. People’s deputies claim that the obligation to declare property allegedly violates their basic rights guaranteed by the Constitution of Ukraine. However, they do not mention that some of them have already been noticed in the unscrupulous filling of declarations. The National Agency for Prevention of Corruption (NAPC) noted that, in particular, a full verification of declarations had been launched against Ilya Kiva and Taras Kozak, with the “brightest” declaration belonging to Viktor Medvedchuk. It includes a yacht, 18 cars, 17 plots of land, 5 houses, 23 personal elite watches and dozens of other watches and the jewelry of his wife, as well as a collection of old prints, one of which, as Deutsche Welle wrote, has become an international scientific sensation.

This is not the best situation for CCU judges. Five of them have a so-called “conflict of interest,” as they themselves have inconsistencies in declarations and interest in the abolition of liability. This is especially true of the head of the Court, Oleksandr Tupytskyi. According to the NAPC, in 2018 he bought a plot of land in occupied Crimea. He did so under Russian law and did not make appropriate entries in his declaration.

For two months there were no decisions on the submission. Why have things just now moved on from the deadlock? Probably it is such that in early October, Oleksandr Tupytskyi received a request from the NAPC for an explanation of the origin of his property in Crimea. After that, the Deputy Chairman of the Constitutional Court of Ukraine, Serhiy Holovaty, held a meeting and closed it off from representatives of the president and parliament.

And on October 27th, by its decision, the Constitutional Court actually freed Oleksandr Tupytskyi of any responsibility.

Volodymyr Zelenskyy faces the need to solve a number of problems immediately. This must be done quickly to prevent the destruction of the anti-corruption system and deterioration of relations with the West. After all, it can mean a loss of trust for many years. In this case, Ukraine will position itself in the world as a country that is totally incapable of fulfilling its commitments. And if the loss of visa-free travel can be avoided even in the worst case scenario, it will be extremely difficult to avoid the loss of financial and political assistance.

According to the President’s representative in the Constitutional Court, Fedor Venislavsky, the judges have established legal mechanisms that allow them to declare unconstitutional all decisions to return to the provisions of anti-corruption legislation. It is difficult to disagree with this. Adding to the complexity is the fact that the Constitutional Court is independent. In fact, the decisions of the panel of judges are not subject to the President.

If Volodymyr Zelenskyy fails to take tough steps that may not be provided for in the existing legal framework, we may return to the Yanukovych era, when e-declaration did not exist as a phenomenon. And such a step has already been taken. On October 29th, the head of state submitted to the Verkhovna Rada bill No. 4288 “On Restoration of Public Confidence in the Constitutional Judiciary.” The image of the court itself has been damaged. However, its legal force remains. If the Verkhovna Rada adopts the drafted law, there will be a legal opportunity to change the composition of the panel of judges, which will allow the cancellation of the decisions of the previous composition.

However, the additional, and one of the key, obstacles to solving the problem is the lack of necessary support in parliament. Currently, the president lacks influence over the speaker and the parliamentary majority, which leads to the emergence of a new number of options for overcoming the crisis by the “council.”

Winning this confrontation will help Zelenskyy eradicate corruption in the upper echelons of power and fulfil the promises he made to society. A loss would destroy the remnants of political stability, cause the loss of international support and cause chaos in the decisions of all branches of government, as there would be a precedent that the CCU could follow in the future. Judges have already taken up the land market and language laws. If the Constitutional Court is not stopped now, the anti-Kolomoyskiy Law and other socially important decisions may suffer in the future.

The president himself and his team demonstrate their full readiness to maintain the existing achievements and achieve new results in the fight against corruption in the country, despite all the problematic issues. Currently, by his actions, Volodymyr Zelenskyy positions himself as a strong leader who can take political responsibility and break the system. It is now important to find an effective compromise between political will and the legal framework in order to prevent the creation of new dangerous precedents. The only way forward for Ukraine is to make the correct legislative adjustments to curb the further unfolding of a constitutional crisis.

Anton Naychuk is the director of the Civil Diplomacy Fund, an NGO based in Kyiv.

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