Judges of the Constitutional Court, who may issue rulings that nullify penalties for illicit enrichment and incorrect asset disclosures as well as abolish the anti-corruption court, should not be ruling on the cases because of conflicts of interest, the National Agency for Preventing Corruption (NAPC) said on Oct. 8.
The Constitutional Court did not respond to a request for comment.
The current efforts to attack asset declarations, the illicit enrichment law, and the anti-corruption court follow Constitutional Court decisions that may destroy the independence of the National Anti-Corruption Bureau of Ukraine (NABU). They also come after the Verkhovna Rada’s decision to delegate controversial commission members who may choose a politically dependent chief anti-corruption prosecutor.
This full-frontal assault may disrupt lending from the International Monetary Fund and even lead to the suspension of the visa-free regime, according to anti-corruption activists and European Union officials.
Recusals
The Constitutional Court is considering canceling the new law on illicit enrichment passed under President Volodymyr Zelensky, the law criminalizing false information in asset declarations, the clause on the confiscation of ill-gotten wealth, and public access to the register of asset declarations.
Zelensky’s representative Fedir Venislavsky on Oct. 8 asked for the recusal of four Constitutional Court judges in this case. The judges have an explicit conflict of interest, according to the NAPC.
The Constitutional Court refused to recuse its judges Ihor Slidenko, Volodymyr Moisyk and Iryna Zavgorodnya and postponed a decision on the recusal of Oleksandr Tupitsky, head of the court.
“The NAPC is convinced that a decision on such a sensitive issue must be made in a way that will deprive (Ukrainian) citizens of the least doubts about Constitutional Court judges’ compliance with the principles of objectivity and lack of bias,” the anti-corruption agency said in a statement.
Conflicts of interest
Specifically, the NAPC has found false information on assets worth Hr 615,300 in Zavgorodnya’s asset declaration. The NABU has opened a criminal case against the judge.
The NAPC also said that Slidenko and Moisyk had failed to declare changes in their assets on time, which is a misdemeanor.
The agency has also issued a warning to Tupitsky for failing to submit information on Constitutional Court judges’ conflicts of interest. The agency said that, based on Tupitsky’s continued failure to submit information, it has grounds to initiate an administrative case against him.
The NAPC previously requested information on Constitutional Court judges’ conflicts of interest since 2019, including those in the court’s decisions on canceling the 2015 decree on Artem Sytnyk’s appointment as head of the NABU and some clauses of the law on the NABU. Six judges declared that they have a conflict of interest in the case into the law on the NABU but they failed to indicate a conflict of interest in a similar case concerning Sytnyk’s appointment.
The Constitutional Court has disputed the NAPC’s warning for Tupitsky with the Kyiv Administrative District Court, which is headed by highly controversial judge Pavlo Vovk. The court has banned the NAPC from requesting information from the Constitutional Court.
In 2019 NABU charged Vovk and other judges of his court with obstruction of justice and issuing unlawful rulings. In July 2020 the NABU also charged Vovk and other judges of his court with organized crime, usurpation of power, bribery and unlawful interference with government officials.
The NAPC said that Constitutional Court judges have similar conflicts of interest that should be grounds for recusal in the case about the constitutionality of the High Anti-Corruption Court.
Attack on anti-corruption bodies
The Constitutional Court has recently dealt several blows to Ukraine’s anti-corruption institutions.
On Aug. 28, the Constitutional Court ruled that then-President Petro Poroshenko’s 2015 decree to appoint Sytnyk as head of the NABU was unconstitutional. On Sept. 16, the Constitutional Court also ruled that some clauses of the law on the NABU were unconstitutional. Although the decision ostensibly seeks to restrict the president’s powers in appointing the NABU’s head, experts say it may have the opposite effect.
There are fears that Zelensky’s majority in the Verkhovna Rada will change the law in order to fire Sytnyk and appoint a Zelensky loyalist who will block cases against top incumbent officials.
The Verkhovna Rada also dealt another blow to anti-corruption institutions on Sept. 17. Parliament appointed seven controversial figures to a commission that will choose a new chief anti-corruption prosecutor to replace Nazar Kholodnytsky, who resigned in August.
Such a commission is likely to choose a loyalist of the current authorities who will be able to block NABU investigations against top incumbent officials, according to civic activists.
Controversial court
Legal experts and anti-corruption activists have long called for the current Constitutional Court to be replaced. They say it has lost its credibility and is simply too controversial.
The Constitutional Court has also made numerous other controversial rulings and found itself mired in corruption scandals.
Specifically, the court helped corrupt officials by canceling the law criminalizing illicit enrichment in 2019, partially canceled the judicial reforms of both Poroshenko and Zelensky in February and March 2020 and entrenched judicial impunity by canceling the law criminalizing unlawful court rulings in June 2020.
