Diplomats from the Group of Seven (G7) on Jan. 25 issued a list of recommendations for Ukraine to resolve the Constitutional Court crisis simmering since October.
The G7 is an intergovernmental organization that includes Canada, France, Germany, Italy, Japan, the United Kingdom and the United States.
Following the Constitutional Court’s attack on Ukraine’s major anti-corruption institutions, the country’s leadership reacted by temporarily blocking the court’s work and partially restoring what it destroyed.
While the diplomats welcomed these efforts, they said it’s not enough.
The G7 ambassadors suggested that Ukraine take several urgent steps to stop the Constitutional Court from causing future damage and repair what it’s done. The recommended measures include:
- Temporarily increasing the decision-making quorum of the Constitutional Court. Right now, 12 judges are required to reach a decision. The court’s maximum capacity is 18 judges and 15 judges are currently serving.
- Urgently establishing a transparent competitive selection process for the court’s judges with the participation of international experts, while postponing ongoing judge selection until the new rules are in place.
- Strengthening disciplinary proceedings and ethical requirements for the court’s judges.
- Mandating impartial and open deliberation of cases and voting by the judges.
The plan recommends that these steps be taken by the end of February.
The G7 document also touches on every institution involved in anti-corruption and judicial reform. The full list of recommendations can be found here.
The ambassadors prepared it in response to President Volodymyr Zelensky’s request for suggestions on how to resolve the crisis effectively and sustainably.
However, the President’s Office hinted that it might not rush to implement the recommendations.
“Advice should be treated as advice. Without deadlines for implementation and without coercion,” Andriy Smyrnov, deputy head of the President’s Office in charge of law enforcement and judicial bodies, told a legal publication Zakon i Biznes.
The constitutional crisis and Zelensky’s clash with the court started in October. The court’s judges rulings undermined two key anti-graft agencies: the National Anti-Corruption Bureau (NABU) and the National Agency for Corruption Prevention (NAPC).
The court attacked NABU by ruling that the appointment of its chief, Artem Sytnyk, was unconstitutional. It also deprived NAPC of its power to enforce a law against illegal enrichment by public officials, who are required to declare their income and assets.
NABU has ignored the court’s ruling and Sytnyk continues to serve as the agency’s chief.
NAPC, backed by parliament, was able to resume some of its functions and restore public access to the asset e-declaration registry. However, a year’s worth of illegal enrichment cases were wiped out by the Constitutional Court’s ruling.
Activists throw flares during a rally outside the Constitutional Court building, demanding the judges come out and explain to them the reasons for their ruling on the anti-graft laws in Kyiv, on Oct. 30, 2020. (Volodymyr Petrov)
The G7 recommended strengthening the anti-graft institutions.“It is equally critical to ensure that these institutions emerge from this crisis with the ability to carry out their missions effectively,” the G7 ambassadors stated. “The provisions aimed at restoring liability for false or unfiled asset declarations adopted by the Verkhovna Rada on December 4 do not have a sufficiently deterrent effect and thus would not be an effective tool in preventing corruption.”
On Dec. 4, parliament passed a law that supposedly fixes the damage done to NAPC and the asset declaration system. The bill reinstates penalties for lying in asset declarations but civil society has criticized the new penalties for being too mild and ineffective.
The G7 recommended reintroducing criminal liability for knowingly failing to file and making false statements in asset declarations before the Constitutional Court’s controversial ruling. The recommendation also included ensuring 24-hour public access to the e-declaration registry and restoring NAPC access to public registries.
G7 diplomats also called on Ukraine’s authorities to adopt amendments to the Law on the Prevention of Corruption and restore NAPC’s watchdog function that lets it verify declarations and monitor judges’ lifestyles and conflicts of interest.
They also suggested treating disclosure violations like criminal rather than administrative offenses.
The G7 action plan wants these steps to be implemented by the end of January.
Read more: Venice Commission head opposes radical solutions to Constitutional Court crisis
As for NABU, the diplomats called for Ukraine to establish a firm legal basis for its existence as soon as possible. This basis should ensure the bureau’s independence and enable it to work effectively without interruption.
The ambassadors also called for a modest increase in the Constitutional Court’s decision-making quorum.
On Nov. 3, lawmakers from the Servant of the People and Holos factions submitted a bill to temporarily block the Constitutional Court’s work by increasing its quorum from 12 to 17 judges. Currently, three of the court’s 18 seats are vacant.
Zelensky’s first reaction, a parliamentary bill to fire all of the Constitutional Court, was widely seen as radical.
The Verkhovna Rada did not back the president’s bill as the Ukrainian constitution does not allow the dismissal of Constitutional Court judges without the court’s consent.
However, despite criticism, Zelensky signed a Dec. 29 decree that temporarily suspended Constitutional Court head Oleksandr Tupytsky due to corruption charges against him.
The Prosecutor General’s Office on Dec. 28 charged Tupytsky with unlawfully influencing and bribing a witness into giving false testimony, prior to his current role. He denies the accusations.
The court refused to implement the decree, saying that it was unconstitutional.
