The Constitutional Court of Ukraine on Feb. 27 ruled that a law against illegal enrichment violated the constitutional presumption of innocence by shifting the burden of proof to defendants. The decision immediately halted dozens of corruption investigations against public officials.
But this was hardly the first time the court has issued a controversial ruling that helped those in power. The court has had a reputation of being a weapon for political forces for nearly two decades.
The Constitutional Court exists to determine if laws and executive acts conform to the Ukrainian Constitution. The court was created in 1992 but only started functioning in 1996. It is comprised of 18 justices, six of whom are selected by the president, six by parliament, and six by the Council of Judges, the body that oversees judicial independence.
Constitutional Court judges serve a one nine-year term. They must have lived in Ukraine for 20 years prior to their appointment, must have over a decade of professional experience, and must be between the ages of 40 and 65. They must also possess good moral character, according to the selection criteria.
However, critics have often questioned the moral character of the court’s judges. Justices have been accused of corruption, working for political factions, and making controversial decisions that upset the balance of powers.
For instance, in 2003, the Constitutional Court ruled that then-President Leonid Kuchma could run for a third term, overriding the two-term limit for a president. The court ruled that Kuchma’s first term didn’t count, because it started two years before the constitution was adopted in 1996.
Kuchma decided not to run for a third term. Instead, he backed then-Prime Minister Viktor Yanukovych as his successor. Yanukovych’s attempt to rig the election against his rival, Viktor Yushchenko, triggered the 2004 Orange Revolution. Yushchenko defeated Yanukovych in a new election on Dec. 26, 2004.
After the revolution, constitutional changes were passed that weakened the president’s powers and strengthened those of parliament. However, most of these changes were rolled back in 2010, when Yanukovych became president.
Yanukovych was accused of being behind the dismissal of four Constitutional Court judges who were opposed to the way that Yanukovych formed a ruling coalition government. Those justices were against allowing individual lawmakers to form coalitions regardless of party affiliation, even though voters chose them based on their party.
The four ousted justices were replaced with others said to be more amenable to removing the changes that had once weakened the presidency. This rollback allowed Yanukovych to consolidate a great deal of power. Three of the justices he appointed – Mykhailo Gultai, Natalia Shaptala and Mykhailo Zaporozhets – are still on the court today, although their terms will be up in September. All of them voted on Feb. 26 to abolish legislation on illegal enrichment.
According to Yanukovych’s infamous Black Ledger, a document found after the 2014 EuroMaidan Revolution which allegedly lists his former party’s unofficial spending, the Constitutional Court received $6 million from his Party of Regions around the time that the court ruled that lawmakers could switch from opposition parties to the Party of Regions.
In 2014, five of the justices appointed by the parliament were ousted, accused of violating their oaths.
In June 2016, the Verkhovna Rada adopted constitutional amendments in an attempt to effect reforms to make the judiciary more independent. Among many other changes to Ukraine’s various courts, the Constitutional Court became much more accessible. Where it was previously open only to the president or a member of parliament, now everyone could file a claim, provided they had exhausted all other court instances.
However, in 2017, the Constitutional Court became paralyzed for over a year due to the lack of quorum, when the court failed to elect a chairman and adopt regulations to work with the new laws. This paralysis caused the Constitutional Court to fail to consider a bill on lifting lawmakers’ immunity from prosecution.
Worse, in 2017, President Petro Poroshenko signed a new law on the Constitutional Court, enabling the president, parliament and the Council of Judges to appoint justices in an arbitrary way, opening the way to stacking the Constitutional Court with loyalists.
Yulia Kyrychenko, a member of the Reanimation Package of Reforms watchdog, told the Kyiv Post on Feb. 28 that the electoral contest process was “killed” and that current candidates are largely chosen for their support of the political faction that backs them. She added that questions remain over whether some of the sitting justices had participated in corruption schemes.
New Constitutional Court justices are still selected by the president, parliament and the Council of Judges, but there is little clarity about selection criteria and the process isn’t competitive. This enables the president, the Rada and the Council of Judges to appoint any justice who they feel can advance their agenda.
