Constitutional Crisis Ongoing: Venice Commission and GRECO Oppose Dissolution of Constitutional Court of Ukraine

The dismissal of judges of the Constitutional Court of Ukraine (CCU) is a violation of the Basic Law and the principle of separation of powers and, therefore, jeopardises the rule of law. This is stated in a joint letter of President of the Venice Commission Gianni Buquicchio and President of the Group of States against Corruption (GRECO) Marin Mrčela addressed to Speaker of the Verkhovna Rada of Ukraine Dmytro Razumkov.

The organisations claim that they fully agree with the importance of ensuring public trust in the Constitutional Court but call on the Ukrainian authorities to consider the adverse, profound, and long-term implications for Ukraine of a possible rushed decision to dismiss the Constitutional Court judges.

“We encourage you to explore possible alternative ways of ensuring that the fight against corruption in line with international standards remains a priority for your country,” the letter reads.

At the same time, the press service of the National Agency on Corruption Prevention (NACP) responded to the letter from European organisations and wrote on its Facebook page that solving the issue of rapid recovery of Ukraine’s anti-corruption system is impossible without changing the decision of the CCU.

The NACP emphasises that in the situation that has emerged as a result of the Court’s decision, the following three circumstances must be taken into account:

• The CCU judges violated the Constitution of Ukraine in their decision at least twice – intervened in the powers of the Parliament (only Parliament can determine which act is considered a crime) and repealed the provisions of the Law of Ukraine “On Prevention of Corruption”
• Judges also violated the basic principle of law: judges cannot consider their own cases
• The CCU pointed out the inadmissibility of exercising control over filing declarations and the conflict of interest of all judges on equal footing with other public servants which contradicts the previous conclusions of the Venice Commission on a similar issue.

In addition, Representative of the President of Ukraine in the Constitutional Court Fedir Venislavsky also reacted to the letter, saying that the termination of powers of the Constitutional Court judges is now the only possible way out of the situation.

“I believe that the CCU has in fact crossed out its legitimacy with this decision. This composition of the CCU is unlikely to adequately respond to the assessment of the laws initiated. Therefore, I believe that the bill [tabled by the President in the Verkhovna Rada] is absolutely adequate,” Venislavsky stressed.

Now, it is hardly possible to find an exclusively legitimate and constitutional solution that will help overcome the constitutional crisis, he added.

The day before, leader of the Servant of the People parliamentary faction Davyd Arakhamiya noted that the legislative initiative of President Volodymyr Zelensky to renew the CCU composition had been supported by the EU and agreed upon with the G7 Ambassadors.

“The decision to renew the Constitutional Court’s composition has already been supported by the European Parliament. And at the meeting with the G7 ambassadors, it was agreed that the new composition would be formed as transparently as possible and with the participation of the public and international partners. There is no alternative to the proposed renewal of the Constitutional Court,” Arakhamiya stressed.

On 27 October, the Constitutional Court of Ukraine declared unconstitutional the provision on criminal liability for inaccurate declaration of assets and also deprived NACP of part of its controlling functions. According to the CCU decision, access to the register of electronic declarations was closed in Ukraine.

In response to such actions of the CCU, the representatives of the European Union sent a letter to the Verkhovna Rada and the Office of the President, pointing out their “anxiety and concern.” The G7 Ambassadors also expressed concern about “efforts to undo the anti-corruption reforms” in Ukraine. At an extraordinary meeting on 29 October, the Cabinet of Ministers of Ukraine ordered the NACP to open access to the declarations.

Bohdan Marusyak