In the 20 years I spent in Ukrainian journalism and politics, I have only been inside the Constitutional Court once and protested outside of it one other time.
I visited it back in 2003 and walked down the long hallways to the courtroom, where the judges announced their disgraceful decision that reflected the worst tendencies of an authoritarian regime: Then-President Leonid Kuchma was given the right to run for a third term even though the Ukrainian Constitution only allows for two terms.
Kuchma ultimately didn’t try to tempt fate, but the decision stained the reputation of the Constitutional Court judges. The judge who drafted and proclaimed the ruling was Vasyl Nimchenko. Today he is a lawmaker with the pro-Russian Opposition Platform — For Life and one of the most vocal supporters of its leader, media baron and Vladimir Putin’s friend Viktor Medvedchuk.
I joined the protest outside the Constitutional Court last week after its judges went on the offensive against anti-corruption institutions in Ukraine. Its scandalous ruling became possible thanks to a submission by lawmakers from the Opposition Platform as well as several loyalists of billionaire oligarch Ihor Kolomoisky.
I had personal motives for outrage, as the Committee for the Prevention of Corruption, of which I was a member, carried these reforms through parliament in the face of great resistance. There were many more real allies outside parliament, but not within its walls.
It’s not about justice
It is difficult for some of our foreign friends to understand how the Constitutional Court can be biased and have a conflict of interest.
It was this court that allowed ex-President Viktor Yanukovych to usurp power in 2010 by changing the Constitution. Three judges who enabled Yanukovych’s authoritarianism, which resulted in the EuroMaidan Revolution that ended Yanukovych’s presidency in 2014, still serve on the court today. One of these judges, Oleksandr Tupytsky, now chairs the Constitutional Court, although some of his previous rulings have been overturned in the European Court of Human Rights.
The Constitutional Court’s Oct. 27 ruling on asset declarations is an example of “hijacked” justice.
While interpreting the law, the Constitutional Court itself violated the law with its decision.
First, the Constitutional Court impinged upon the authority of the parliament when it ruled that lying in asset declarations is not a serious enough offense for criminal liability. It is not the power of the Constitutional Court, but of the parliament, to determine which action is a crime because of its public threat. With this ruling, the court made it impossible to reintroduce criminal liability for lying in declarations.
The second time the Constitutional Court violated the law was when it revoked what lawmakers did not even ask for in their submission. The judges did it in their own interest: At the time of the decision, the procedure for bringing three of the Constitutional Court judges to justice was under way. Two charges on judge Igor Slidenko, who was appointed under the quota of the nationalist Svoboda party, were sent to court on Oct. 26. The next day, Oct. 27, the court scrapped the anti-graft legislation on declarations.
Critics of President Volodymyr Zelensky’s radical actions often fail to realize the depth of the abyss into which judges of the Constitutional Court are pushing Ukraine. Members of the European Parliament Viola von Cramon-Taubadel and Michael Haller have an exemplary Constitutional Court in their homeland, Germany. But their criticism of the proposal to completely reset the Constitutional Court in Ukraine is detached from Ukrainian realities.
The decision of the Constitutional Court on asset declarations was just one episode in the destruction of Ukraine’s anti-corruption achievements following the EuroMaidan Revolution that toppled Yanukovych and his corrupt regime. Before that, the Constitutional Court declared unconstitutional the appointment of Artem Sytnyk as director of the National Anti-Corruption Bureau (NABU), as well as the law on the NABU itself. Next in line are rulings that will abolish land reform, the Anti-Corruption Court and the Deposit Guarantee Fund.
To abolish the Deposit Guarantee Fund is especially important for Kolomoisky. According to my sources, the court plans to repeal the article that the Deposit Guarantee Fund issues regulations, which means the fund will be paralyzed. This, in turn, will give Kolomoisky an argument to use in the Ukrainian and London Court that the 2016 procedure for nationalizing banks (which resulted in Kolomoisky losing PrivatBank) was based on unconstitutional legislation. If it works, the nationalization will be abolished and the former owners of PrivatBank, Kolomoisky and his partner Gennadiy Bogolyubov, can get compensation from the state. This is Kolomoisky’s goal.
Tool for sabotage
The Constitutional Court has become an instrument of political revenge in the hands of those who control it. There is Medvedchuk’s Opposition Platform — For Life party, as well as former President Petro Poroshenko, Yulia Tymoshenko, the nationalist Svoboda party, and oligarch Kolomoisky. Having no influence on the processes in parliament and having lost the chance to get the presidency, they turned the Constitutional Court into an institution of sabotage.
The court is an instrument for them to kill the decisions of Zelensky’s regime. Their decision questions Ukraine’s commitments to its international partners and that’s the goal of these forces — to deepen Ukraine’s conflict with the West and deprive the country of financial aid. According to Finance Minister Serhiy Marchenko, the abolition of asset declarations alone cost Ukraine more than $2 billion in aid. Also, such behavior by the Constitutional Court allows Medvedchuk to put at risk the geopolitical choice of Ukraine — integration with the European Union and NATO.
In other words, the Constitutional Court has become a collective “Yanukovych,” an obstacle to the country’s development.
It is impossible to find a purely legal solution in this situation because the Constitutional Court itself became the usurper of power.
It is impossible to restore confidence in the Constitutional Court without cleansing it of people who have tarnished themselves with the ruling to dismantle the anti-corruption reform. And this can be done either by their voluntary resignation or forced dissolution under the draft law proposed by President Volodymyr Zelensky.
This crisis has also given Zelensky a chance to renew his allies and political agenda. Now 57% of citizens approve of his actions, and some of his critics among the anti-corruption experts, such as Vitaly Shabunin, Oleksa Shalaisky or British financial analyst Tim Ash, are currently backing his decision regarding the Constitutional Court.
The situation has highlighted a pro-Russian group within the Servant of the People party, which consults with Medvedchuk’s party (lawmakers Oleksandr Kachura and Yevheniy Shevchenko). It also exposed Zelensky’s conflict with Parliament Speaker Dmytro Razumkov, who suggested a compromise solution for the Constitutional Court crisis. But that will not solve the problem of the current composition of the court.
Zelensky has reached a make-or-break moment in his turbulent presidency. In 2019, he won the presidency and parliament amid the society’s demand for a transformation. Today, as his ratings have dropped, it’s time to fight, strengthening himself in a real political war.
This situation has also allowed Zelensky to turn the media discourse in his favor after unjustified expectations from the Oct. 25 local elections. Only this course will be a success. It’s like hockey: The one who controls the puck, the one who exhausts his opponent, the one who attacks more than he defends will win.
Sergii Leshchenko is a Kyiv Post columnist, investigative journalist, and former member of the Verkhovna Rada, Ukraine’s parliament.
