Foreign Policy Research Institute

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Foreign Policy Research Institute

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Conclusions of the Venice Commission and Prospects for Overcoming the Constitutional Crisis in Ukraine

On December 9, the Venice Commission (VC) announced its decision on the reform of the Constitutional Court of Ukraine (CCU), providing specific recommendations, upon the request of Ukrainian President Volodymyr Zelensky. The President's presentation was made within the framework of actions to resolve the constitutional crisis, in order to find an optimal solution that would not contradict the law.

To overcome this crisis, the President convened a meeting of the NSDC (The National Security and Defense Council of Ukraine) on October 29 to determine measures for the state's urgent response to new threats and challenges to national security and the country's defense. Then, based on the results of the meeting, a decision was made, in particular, to take urgent measures by the Cabinet of Ministers on the temporary procedure for maintaining the Unified State Register of declarations of persons authorized to perform state or local government functions, as well as a special inspection. Volodymyr Zelenskyy offered to urgently draft a bill and submit it to the Verkhovna Rada as urgent to restore trust in the constitutional judiciary. It was also decided to intensify the activities of the Commission for Legal Reform under the President of Ukraine and speed up the submission of proposals for judicial reform.[1]

In the text of the decision published on the Commission's website, the EC, in particular, notes that it perceives the decision 13-r / 2020 adopted by the Constitutional Court of Ukraine as "an indication that a reform of the Constitutional Court is warranted and a starting point for a reform." The position of the President of Ukraine was supported on many issues: the need for a clearer reasoning of decisions and the fact that the CCU cannot go beyond its constitutional powers, in particular, taking over the functions of parliament.

Also, the corresponding conclusion supported Zelensky's position that law may reserve the sanction of imprisonment for cases of inaccurate declaration of assets above a certain threshold and for perpetrators acting with deliberate intent.[2] The Venice Commission, however, in its opinion did not support the idea of cancelling the decision of the Constitutional Court of Ukraine and its dissolution - reports the Interfax edition. "The annulment of a decision of the Constitutional Court and the dismissal of all its judges would be unconstitutional and would contradict the rule of law", according to a second urgent conclusion on the reform of the Constitutional Court, published on the Venice Commission's website on December 10.

The document notes that the Constitutional Court cannot be "punished" for its decisions, but its working can be improved. President of Ukraine Volodymyr Zelenskyy praised the position of the Venice Commission on the consequences of the decision of the Constitutional Court. The Head of State thanked the Venice Commission for its assistance to Ukraine in establishing the ideas of the rule of law and constitutional values during the meeting of the European Commission for Democracy through Law, which took place in a video conference format "Our society knows and respects the Venice Commission as a highly professional institution with which the state effectively cooperates. I am confident that the current stage of our cooperation will only add positivity to such a perception," Volodymyr Zelenskyy said. The President also thanked President of the Venice Commission Gianni Buquicchio for understanding the situation that arose due to the decision of the Constitutional Court of Ukraine of October 27, 2020, and said that the decision of the Venice Commission would be taken into account when preparing judicial reform.[3] According to the speaker of the Verkhovna Rada, Dmitry Razumkov, the position of the Verkhovna Rada coincides with the conclusions of the commission.[4]

It is worth noting that the constitutional crisis has become one of the topics covered in the EU's annual report on Ukraine. In particular, the report notes that despite the destabilizing actions of Russia, the conflict in eastern Ukraine, and the outbreak of the coronavirus pandemic, Ukraine continues to make progress on the path of reforms. According to the European Union, it is very important for Ukraine's political leaders to continue these efforts and make reforms irreversible, especially with regard to the rule of law. In the area of the judiciary, the rule of law and the fight against corruption, certain positive developments are also mentioned, in particular the first decisions issued by the Supreme Anti-Corruption Court. It is also noted that cooperation between NABU and the Specialized Anti-Corruption Prosecutor's Office has improved, but at the same time the number of indictments in corruption investigations remains low today. At the same time, recent decisions of the Constitutional Court of Ukraine have called into question the country's achievements in the fight against corruption and confirmed the need for decisive reform of the judicial sphere. In turn, European Commissioner for Enlargement and Neighbourhood Oliver Varhelyi noted that the EU would continue helping Ukraine to cope with the coronavirus pandemic, as well as to pursue reforms and implement the Association Agreement.[5]

It can be stated that Ukraine is gradually emerging from the constitutional crisis. The correct and timely actions of President Zelensky helped to maintain the support of Western countries and prevent destabilization of the state by opposition and pro-Russian parties from within. At the same time, the conclusions of the Venice Commission will become a guideline for further settlement of the situation, which reminded the state leadership of the need to reform the judicial system, which is the key to further Euro-Atlantic integration and development of Ukraine.