The dubious decision of the CCU from October 27 to declare key institutions of anti-corruption law and criminal liability for knowingly false declaration as unconstitutional initiated a number of unconstitutional actions. These include the immediate termination of the CCU’s powers due to the adoption of an ordinary law, blocking of the CCU’s activities by increasing in the quorum for the Grand Chamber to 17 judges (at the moment, the Grand Chamber includes 15 judges), and restoration instead of re-adoption by the Parliament of legal provisions declared as unconstitutional, etc.

It seems as if possible solutions to the problem through legal means are not even considered,  this may indicate that this situation is being used by some political actors as an excuse to establish control over the CCU, rather than an attempt to maintain anti-corruption legislation.

The RPR Coalition emphasizes that the undermining of the constitutional order and the disregard for the Constitution and constitutional procedures threaten the country’s democratic development. Therefore, the RPR Coalition warns against taking rapid unconstitutional steps that could lead to the constitutional crisis and cripple the statehood, which is unacceptable in the face of armed aggression by the Russian Federation and economic stagnation. We propose to take a meticulous and thorough approach to solving the problems that have arisen today in the field of constitutional justice amid the low constitutional culture of the government.

Required steps as suggested by the RPR Coalition:

1. Refrain from unconstitutional actions, in particular, not to adopt draft law No.4288, submitted to the Parliament by the President of Ukraine. The termination of the powers of the CCU judges, as well as the annulment of the CCU decision by the Parliament, will obviously be an unconstitutional decision. We warn against such decisions, because the domino effect might lead to other unconstitutional actions in the absence of a constitutional arbitrator.
2. Immediately regulate the selection of candidates for the position of CCU judge on a transparent competitive basis, which will ensure the compliance of future CCU judges with constitutional requirements, especially regarding high moral qualities and recognized level of legal competence (through a single contest committee). Upfront political support for CCU candidates by the parliamentary factions should be abolished. This requires implementing immediate amendments to the Laws “On the Constitutional Court of Ukraine” and “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.
3. We urge the CCU judges who voted for Decision No.13-r/2020 to resign voluntarily, and the Parliament to immediately establish a proper competitive contest for the future CCU judges. After that, the Parliament, the President, and the Congress of Judges must immediately fill all vacant positions in the institution of constitutional control.
4. The media should objectively cover events related to the activities of the CCU and refrain from disseminating unverified information that encourages unconstitutional actions.
5. We support the decision of the NACP to restore open access to the declarations of persons authorized to perform the functions of the state or local self-government. There are sufficient legal grounds for this step, in particular the Law on Access to Public Information, which does not contradict the arguments of the CCU.
6. Provisions of the Law on Prevention of Corruption that have been declared as unconstitutional should be immediately reintroduced by a new law, which will account for the special aspects of verifying declarations and monitoring the lifestyle of judges. It is desirable that the effectiveness of this procedure will be higher than before. The Code of Administrative Offenses must be supplemented with provisions on liability for knowingly false declarations (non-declaration). This will also be in line with the CCU’s decision.

DETAILED DESCRIPTION OF THE SITUATION

Background

On 27 October 2020, the Constitutional Court of Ukraine (CCU) adopted, and on the next day promulgated the decision No.13-r/2020 on the case according to the constitutional petition of 47 deputies concerning certain provisions of the Law “On Prevention of Corruption” and Article 366-1 of the Criminal Code.

The Constitutional Court declared as unconstitutional the provisions on:

• implementation by the National Agency on Corruption Prevention (NACP) of monitoring and control over the implementation of legislation on ethical conduct, prevention and settlement of conflicts of interest, control and verification of declarations, storage and publication of such declarations, monitoring of lifestyles;
• the right of the NACP to receive the necessary information, to have access to registers, to monitor compliance with anti-corruption legislation, to sue for illegality of acts violating anti-corruption requirements, and for protocols on administrative offenses related to corruption; to make instructions on elimination of violations of the legislation, carry out the official investigation, bring the guilty persons to the responsibility established by the law;
• state registration of NACP regulations in the Ministry of Justice of Ukraine and the procedure for promulgation and entry into force of NACP acts;
• the rights of authorized persons of the National Agency and the tasks of authorized subdivisions (authorized persons) on issues of prevention and detection of corruption;
• settlement of conflicts of interest in the activities of officials of the collegial body;
• openness of the unified state register of declarations of persons authorized to perform the functions of the state or local self-government;
• control and verification of such declarations by the NACP, including full verification;
• the procedure for establishing the timeliness of submission of declarations;
• monitoring the lifestyle of the subjects of the declaration;
• the obligation to notify of a significant change in the property status of subjects of the declaration;
• liability for corruption or corruption-related offenses;
• criminal liability for the submission of knowingly false information in the declaration of a person authorized to perform the functions of state or local government, or intentional failure of the subject to provide the declaration.

In the motivating part of the decision, the CCU declared as unconstitutional the provisions of the Law on Prevention of Corruption “concerning the powers of the National Agency on Corruption Prevention in terms of control functions of the executive branch of power over the judiciary”. However, in the operative part of the decision, it declared these provisions as unconstitutional in general, i.e. depriving the NACP of the relevant powers and rights in relation to all subjects, not just judges.

In addition, the CCU went beyond the scope of the constitutional petition, declaring the provisions of the Law on Prevention of Corruption, which were not challenged in the constitutional petition, as unconstitutional.

Reaction of the state authorities

The Head of the NACP declared that some CCU judges had a conflict of interest, as they were under the investigation of the institutions that were the subject of the constitutional petition. The NACP also reported that the CCU had denied the NACP access to the state registers required for a special check of declarations of candidates for administrative positions in the government. Without this inspection, none of the state authorities can be appointed. Similarly, the appointment of candidates elected to their positions, in particular the heads of the region and district councils and their deputies, is possible only after they have passed special inspections.

The Minister of Justice of Ukraine announced the development of a bill that would limit (or eliminate) the influence of the NACP on judges, who “will probably get their own mechanism for controlling wealth and expenses, which will not be inferior to the NACP”, anti-corruption legislation will be restored; declaration of false information (or non-declaration) will have to be punished through administrative liability.

The National Anti-Corruption Bureau of Ukraine (NABU) assessed this decision as “political”. In this way, the CCU “not only legitimizes the intentions of politicians and officials to hide illegally acquired wealth from society, but also protects the interests of individual CCU judges, whose false declarations are investigated in criminal proceedings.” As of October 27, NABU was conducting 110 criminal proceedings, in which detectives were investigating almost 180 cases of intentional entry of false information by officials into declarations. 34 cases were sent to the court. There are court decisions against 13 people, including 6 sentences. Due to the decision of the CCU, all these cases must be closed. It is also necessary to understand that these cases are investigated not only by the NABU.

An urgent meeting of the National Security and Defense Council (NSDC) was held on October 29. It issued a decision to oblige the Government to take the necessary measures to maintain the unified state register of declarations of persons authorized to perform state or local self-government functions and to ensure access to state registers for the NACP. The President of Ukraine was recommended to submit an urgent bill on “restoration of the integrity of the constitutional judiciary in the interests of the people of Ukraine” to the Parliament. The Legal Reform Commission was also recommended to intensify the preparation of proposals for the judicial reform.

On the same day, on the basis of the order of 29 October 2020 No.1363-r of the Cabinet of Ministers of Ukraine, NACP restored open access to the register of electronic declarations.

In pursuance of the decision of the National Security and Defence Council, the President of Ukraine submitted to the Parliament a bill “On Restoration of Public Confidence in the Constitutional Judiciary” (Reg. No.4288 of 29 October 2020) and identified it as urgent. The bill, without relying on the provisions of the Constitution, declares the CCU decision as worthless, restores the provisions of the Law of Ukraine “On Prevention of Corruption” and the Criminal Code that were declared unconstitutional, as well as calls for early termination of the CCU.

The reaction of society

On October 29, a protest organized by the Anti-Corruption Center, Automaidan, the DEJURE Foundation, and the Anti-Capitulation Movement took place outside the CCU building. The protest was held against the CCU Decision No.13-r/2020, as well as against the arbitrariness of judges in the CCU, which, in opinion of the protesters, threatened the visa-free regime between Ukraine and the EU, financial assistance from the EU, as well as the European and Euro-Atlantic vector of Ukraine. According to various estimates, several thousands of people joined the protest.

Many civil society organizations expressed outrage regarding the CCU Decision No.13-r/2020 and suggested their own perspectives on overcoming the negative consequences of that decision.