The Venice Commission, a legal advisory panel of the Council of Europe, delivered an urgent opinion sharply rebuking the Constitutional Court of Ukraine.
The opinion follows the court’s decision in October to dismantle the country’s online asset declaration system, a key pillar of Ukraine’s anti-corruption infrastructure and a condition for its integration with the European Union.
The first Venice Commission opinion published on Dec. 9 states that “the Constitutional Court’s reasoning is flawed in many respects.”
“That decision may produce critical adverse effects for the functioning of anti-corruption bodies, which is extremely worrying,” the opinion reads.
Venice Commission Head Gianni Buquicchio wrote on Dec. 10 that the Constitutional Court’s decision was “regrettable” and online asset declarations must be re-established by parliament.
The Kyiv Post also obtained a second opinion, intended for publication at a later date. In it, the Venice Commission recommends opening cases of the Constitutional Court only after establishing criminal liability for judges.
The Venice Commission has also recommended establishing a screening body for candidates to the Constitutional Court that could include international human rights experts and involve civil society watchdogs.
However, according to the Commission, Ukraine must respect the role of the Constitutional Court as the “gatekeeper of the Constitution.”
“The fight against corruption is an essential element in a state governed by the rule of law, but so is respect for the Constitution and constitutional justice,” the opinion reads.
The Venice Commission’s opinion crushes the chances of a radical reform of the Constitutional Court proposed by President Volodymyr Zelensky days after the Court’s dubious decision. Opponents alleged that such a reform, which called for sacking all 15 court’s judges, was unconstitutional — an opinion the commission appears to support.
Venice reforms
Zelensky requested the Venice Commission’s opinion in the wake of an Oct. 27 ruling by the Constitutional Court that declared the online asset declaration system unconstitutional and a subsequent decision to deprive the National Agency for Preventing Corruption (NAPC) of most of its powers.
The сourt’s decision provoked a backlash from the president, anti-corruption activists and judicial watchdogs. At least three of the 15 judges who took part in the hearing had a conflict of interests, as they were under investigation over their online asset declarations.
Oleksandr Tupytsky, head of the Constitutional Court, was later exposed as having a villa in occupied Crimea which he didn’t declare. That allegedly gave him a personal motive to dismantle the declaration system.
Read More: Constitutional Court judges live far beyond their stated means
After a month-long standoff between the president and the Constitutional Court judges, on Nov. 25, Zelensky requested an urgent opinion of the Venice Commission on the possible ways out of the ongoing constitutional crisis.
To this end, the commission prepared two opinions – on the Constitutional Court’s decision and on potential solutions to the crisis.
According to the Commission, the parliament must respect the independence of the Constitutional Court even though the decision of the Court is flawed.
The Venice Commission points out that “the fight against corruption is an essential element in a state governed by the rule of law, but so is respect for the Constitution and constitutional justice.”
Nonetheless, the Commission acknowledges that “the decision of the Constitutional Court of Ukraine lacks clear reasoning, has no firm basis in international law, and was possibly tainted with a major procedural flaw – an unresolved question of a conflict of interest of some judges.”
As a result, the parliament must comply with the decision of the Constitutional Court, yet move quickly to re-establish the online asset declaration system and “specify in greater detail the different sanctions corresponding to the degree of criminal responsibility.”
The powers of the NAPC to verify declarations must also be restored.
However, the first opinion also mentions Ukraine’s tainted judicial branch, stating that some safeguards should be introduced in the law to protect judges from potential abuse.
“Some of the investigative powers of the NAPC may be formulated more precisely and narrowly, or special exceptions and procedural safeguards in respect of judges may be envisaged,” the opinion reads.
The Venice Commission proposes to reward the High Qualification Commission of Judges, a state body that selects and vets judges, with the ability to weigh in on NAPC’s work concerning judges.
“However, this solution is possible only once the High Qualification Commission of Judges is re-established and only if it is composed of professional, honest and independent members,” the Venice Commission said.
As of now, the Qualification Commission has been discredited after ruling to allow several controversial judges — most notably Pavlo Vovk, head of the notorious Kyiv District Administrative Court — to remain in office.
Vovk has been charged with organized crime, usurpation of power, bribery and unlawful interference in the work of the High Qualification Commission.
Reforming the Court
In the second opinion, not yet published, the Venice Commission goes on to propose reforming Ukraine’s judicial system and, most importantly, the Constitutional Court.
The Venice Commission recommends that parliament limit the scope of Constitutional Court decisions to the specific questions raised by the parties before it to prevent the court from issuing a ruling that goes beyond the initial request by the plaintiffs.
Additionally, the Court should be obliged to provide specific reasons for each legal provision which it finds unconstitutional, while the possibility for the reopening of cases by the Constitutional Court should be established only when the criminal liability of judges has been reinstated.
Furthermore, Ukraine needs a better definition of “conflict of interest.” The parliament should consider adopting legislation detailing the consequences for judges of the Constitutional Court who fail to withdraw from cases where they have a conflict of interest.
A screening body for Constitutional Court judge candidates should be established and, upon request by the president or parliament, court proceedings should be held in public.
The Venice Commission has also recommended filling the current vacancies on the Constitutional Court only after the system has been improved.
There are currently three openings on the Constitutional Court.
“In the process of reform of the Constitutional Court, the (Court) should be properly consulted on all aspects of the reform. In the light of the specific situation in Ukraine, the Constitutional Court should show some restraint if amended provisions were challenged before the Court,” the opinion reads.
Constitutional Crisis
Amid the ongoing crisis, the Constitutional Court has raised the stakes in what appears to be an attempt to project power and gain leverage in negotiations with the administration.
After Zelensky publicly accused the court of serving the interests of oligarchs and pro-Russian politicians, the court decided to go on the offensive.
On Nov. 2, overnight, the Constitutional Court added several crucial issues to its Nov. 2-3 agenda: assessing the constitutionality of legislation lifting Ukraine’s land moratorium and regulating the Deposit Guarantee Fund.
The court eventually backed down and postponed rulings on these contentious issues amid negotiations with Zelensky’s party.
However, the court indicated that it was ready to kill the land reform. Judge Serhiy Sas published a draft ruling that would do just that.
The equally dangerous issue of the Deposit Guarantee Fund was removed from the agenda without explanation. Were the court to nullify the legislation in question, it would enable former owners to challenge the government’s liquidation of dozens of insolvent and fraudulent banks and billions of dollars worth of sales of their assets. It also could be used by oligarch Ihor Kolomoisky in his fight to win back PrivatBank, which was nationalized in 2016.
Soon after the Constitutional Court’s ruling, Parliament Speaker Dmytro Razumkov registered a bill in parliament that would reinstate the NAPC powers that were taken away by the Constitutional Court. The bill passed on Dec. 4. yet was substantially slimed. The punishment for lying about one’s assets was limited to a maximum fine of $3,000.
It does not envisage imprisonment for lying in declarations.
Read More: Parliament weakens criminal liability for false statements on asset declarations
Razumkov explained that this was the compromise reached by all parliamentary factions to repair the damage to the asset disclosure system from the Constitutional Court decision.
After the Constitutional Court abolished punishment for illicit enrichment and lying on declarations, the National Anti-Corruption Bureau and the High Anti-Corruption Court closed over 100 corruption investigations that were based on officials’ online asset declarations.
