Stanyslav Shevchuk, who was elected as chairman of the Constitutional Court on Feb. 21, has a daunting task: to restore trust in a judicial body that has been mired in corruption and used as a political tool.
The Constitutional Court earlier was unable to elect a chairman after the authority of previous head, Yuriy Baulin, expired in March 2017, because there was no quorum for selecting the head. Viktor Kryvenko had been the court’s acting head before February.
Before Shevchuk’s election, the Constitutional Court’s work had almost been paralyzed since the 2014 EuroMaidan Revolution due to a lack of majorities in crucial votes and an ongoing corruption case against Constitutional Court judges.
Now, with the election of a new chairman and the appointment of two new Constitutional Court judges in February, the court’s work has been unblocked. Four crucial decisions have been made during Shevchuk’s stint already.
Among these decisions, the Constitutional Court has canceled the 2012 law making Russian a regional language in oblasts with more than 10 percent of Russian speakers and the 2012 law allowing constitutional changes and changes in Ukraine’s territory through a referendum. Both laws were passed with numerous legal and procedural violations and have been criticized by Western experts.
“Any Constitutional Court ruling has a political effect,” Shevchuk said in an interview with the Kyiv Post. “If there is no trust in the court, the ruling will be ignored automatically and will not be enforced. To prevent this, we should increase the court’s reputation and trust in it.”
Impeachment
Ukraine’s Constitution stipulates that the president can be impeached, but there is no separate law governing the procedure. There are different opinions on whether a separate law is needed for impeachment, or if the Constitution can be applied directly to impeach a president.
Shevchuk said he did not have a final opinion on whether a special law was needed.
He added, however, that then President Viktor Yanukovych had been “quasi-impeached” without any such special law on Feb. 22, 2014, and at the time it was an appropriate expression of the people’s will.
The Verkhovna Rada ousted Yanukovych from power, citing the constitutional clause allowing the removal of a president who is unable to fulfill his duties, after he fled Kyiv following the murder of more than 100 protesters during the EuroMaidan Revolution.
“In order to prevent usurpation of power – and power is prone to be usurped – there must be safety valves, including impeachment,” Shevchuk said. “…The people’s right to rebellion is an organic natural right that lies in the fundamental values guaranteed by our Constitution.”
Shevchuk said he would do his best to prevent usurpation of power.
“There is a danger that a dictatorship will emerge,” he said. “If – God forbid – a dictator comes, it will be hard to resist, but we will resist. Usurpation of power is impossible without Constitutional Court rulings.”
In November Yuriy Derevyanko, a lawmaker from ex-Georgian President Mikheil Saakashvili’s Movement of New Forces, submitted a bill regulating the procedure of impeachment, but it has not been considered by parliament.
Olha Halabala, a top official of the Movement of New Forces, said in April that the party had received an official explanation from the Verkhovna Rada that a separate law on impeachment is not necessary to oust a president, and the collection of the signatures of at least 226 lawmakers is needed to initiate impeachment. The party said it had initiated such collection of signatures to impeach President Petro Poroshenko.
The process started in connection with in an alleged recording of a conversation on a corrupt deal between Poroshenko and ex-Ecology Minister Mykola Zlochevsky published by fugitive lawmaker Olekandr Onyshchenko and other corruption accusations against the president. Poroshenko denies the accusations.
Thousands have attended six major rallies for Poroshenko’s impeachment and resignation since December as part of a movement co-organized by Saakashvili, a vehement critic of Poroshenko who was deported from Ukraine without a court warrant on Feb. 12. Under Ukrainian law, forced deportation is only possible if authorized by a court.
The biggest rally, numbering about 20,000, took place on Dec. 10.
Immunity
Shevchuk also said the Constitutional Court would continue this month considering lifting lawmakers’ immunity from prosecution. In October, the parliament gave preliminarily approval to two bills on lifting lawmakers’ immunity and sent them to the Constitutional Court after thousands of protesters demanded the reform. The opposition bill envisages lifting immunity immediately, while the presidential bill seeks to lift immunity starting from 2020.
Shevchuk said he believes members of parliament’s immunity cannot be absolute and should be restricted.
“A lawmaker’s status should not be an obstacle to criminal investigations,” he said.
Immunity should not exist if a lawmaker is caught red-handed committing a crime, Shevchuk said.
But immunity should not be lifted for any alleged crimes linked to lawmakers’ statements in parliament, Shevchuk added. Moreover, the lifting of immunity should not be used to obstruct checks and balances and form a pro-government majority in parliament, he said.
Other issues
Another major issue that the Constitutional Court has been considering for years is the 2014 lustration law on the dismissal of top Yanukovych-era officials. Shevchuk said the issue would most likely be resolved after two more Constitutional Court judges are appointed by the Verkhovna Rada.
Although most top Yanukovych-era officials have been fired, some have escaped the law. For example, Poroshenko and other officials have sabotaged the lustration law by refusing to fire top Presidential Administration official Oleksiy Dniprov, Kirovohrad Oblast Governor Serhiy Kuzmenko, Luhansk Oblast Governor Yuriy Harbuz, top Security Service of Ukraine officials Grigory Ostafiychuk and Oleksandr Dovzhenko, Odesa Oblast Deputy Governor Oleksandr Tereshchuk, Kyiv tax office chief Lyudmila Demchenko, top Interior Ministry official Vasyl Nevolya and State Judicial Administration Chief Zenovy Kholodnyuk, according to the Justice Ministry’s lustration department.
The authorities deny claims they have sabotaged the lustration process.
The Constitutional Court is also considering the constitutionality of electronic asset declarations for state officials.
Non-governmental organizations have also pledged to dispute at the Constitutional Court amendments that introduced the same asset disclosure requirements for anti-corruption activists as for state officials. The West has repeatedly urged Ukraine to cancel the draconian requirements, which are seen by critics as a tool to crack down on civil society, but they came into effect on April 1.
Criminal case
Another controversy concerns the criminal case against three incumbent and several ex-judges of the Constitutional Court. They are accused of adopting several decisions that enabled Yanukovych to monopolize power in 2010. These included canceling the 2004 constitutional changes, which restricted presidential powers. According to records in Yanukovych’s Party of Regions’ alleged off-the-book ledger, judges from the Constitutional Court received $6 million from the Party of Regions for making rulings that helped Yanukovych usurp power.
Despite charges having been made against Yanukovych, there are still no formal charges against the Constitutional Court judges accused of helping Yanukovych usurp power. The Prosecutor General’s Office has been accused of covering up for the judges for political reasons, which it denies.
“Our partners are asking if (the criminal case) is a tool of influencing the Constitutional Court,” Shevchuk said. “(The purpose is) to make sure that the court doesn’t make some decisions or makes decisions that are desirable.”
Shevchuk said he believed the 2004 changes to the Constitution had been carried out with procedural violations. However, the 2010 Constitutional Court ruling that reversed the 2004 changes made little sense because the court had failed to notice the violations since 2004, he said. This contradicts the principle of constitutional stability, Shevchuk argued.
Supreme Court
Shevchuk also took issue with the controversial competition for Ukraine’s new Supreme Court last year. He criticized the High Qualification Commission for overriding vetoes by the Public Integrity Council, a civil society watchdog, on thirty discredited Supreme Court judges who do not meet integrity standards. Poroshenko has already appointed 27 of them to the 115-member Supreme Court.
“The Public Integrity Council is one of the most important tools for restoring trust in the judiciary,” Shevchuk said. “They have carried out colossal work… If such vetoes are overridden, this shows there’s a problem in the selection process.”
Another problem is that the High Qualification Commission failed to explain why it gave candidates most of the 1,000 points it could assign in evaluations. During the Supreme Court competition, up to 210 points were assigned for knowledge tests, and the High Qualification Commission could arbitrarily assign up to 790 points without giving explicit reasons.
“I haven’t figured out which criteria they used to give (candidates) 800 out of 1,000 points,” Shevchuk said.
In March 2017 the High Qualification Commission also allowed 43 candidates who had not gotten sufficient scores during practical tests to take part in the next stage, changing its rules mid-competition. Members of the Public Integrity Council believe that the rules were unlawfully changed to prevent political loyalists from dropping out of the competition.
“When you start playing a game – like football – everyone plays by the rules set before the game,” Shevchuk said. “And nobody changes the rules after the first half.”
Contrast with predecessors
Shevchuk stands in sharp contrast with his predecessors, who were representatives of the judicial old guard.
The previous chairman, Baulin, had a controversial reputation and was investigated in an usurpation of power case against ex-President Viktor Yanukovych.
In contrast with Baulin, Shevchuk has been praised by civic activists, including members of the Public Integrity Council. No evidence has so far emerged of Shevchuk’s links either to Yanukovych or the incumbent authorities.
Shevchuk told the Kyiv Post that natural law should be embedded into Ukraine’s legislation, rejecting the post-Soviet formalistic approach to justice and embracing the Western concept of “the spirit of the law.”
“The letter kills, and the spirit gives life, according to Paul’s Epistle to the Corinthians,” he said. “We have to deal with people and human rights and can’t take a formalistic approach. People, not the formal political structure, should be at the center.”
Born in Kharkiv in 1969, Shevchuk graduated from the Yaroslav the Wise National Judicial University in 1993.
He worked as an advisor at the Constitutional Court in 1997 to 2000 and an official at the Justice Ministry in 2000 to 2003.
Shevchuk was a professor at the private Solomon University in 2004 to 2009 and at the Kyiv Mohyla Academy in 2009.
He was an ad hoc judge of the European Court of Human Rights in 2009 to 2012. Shevchuk became a member of Ukraine’s Constitutional Court in 2014 after the EuroMaidan Revolution ousted Yanukovych from power.
