Foreign Policy Research Institute

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Foreign Policy Research Institute

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Constitutional coup in Ukraine at the hands of the Constitutional Court

On October 27, the Grand Chamber of the Constitutional Court repealed Article 366-1 of the Criminal Code, which punished officials for putting inaccurate property data into their annual income tax returns. Depending on the violation, the civil servant was fined or could be imprisoned for three years. In total, the law affected more than 200,000 people, including judges of all instances, ministers and deputies, and representatives of local governments. In August, 47 deputies of the Verkhovna Rada submitted this constitutional petition to the CCU. The entire faction of the «OPFL», two representatives of the «For the Future» party and one non-partisan were among them.[1]

It is worth noting this decision was made at the height of the COVID-19 pandemic, against the backdrop of a war in Eastern Ukraine, and poses certain threats to the stability of the state as a whole. Oleksiy Danilov, NSDC Secretary, also noted that the Court made a scandalous decision immediately after the end of the local elections, which in terms of decentralization contain very complex challenges to the national security of Ukraine in themselves. In his opinion, such steps and their sequence testify to the dedication and sophistication of anti-state actions. In confirmation of Danilov's words, after the local elections, where the pro-Russian parties showed quite good results, Viktor Medvedchuk's party, «OPFL», has publicly stated in an official appeal to voters about its intentions to change the state course of Ukraine.

The result was not only public outrage, but also concern on the part of Ukraine's Western partners. In EU actions of the court were regarded as the basis for a possible temporary suspension of the visa-free regime. In addition, cooperation with the International Monetary Fund and macro-financial assistance from the European Union in the amount of 1.2 billion euros were put at risk. A Constitutional Court of Ukraine (CCU) ruling of October 27 violates the key obligations that Ukraine assumed in relation to its international partners, including the EU. In this regard, the EU calls on the President, the Government and the Verkhovna Rada to work together towards a comprehensive solution to this issue. According to Ukrinform, this was said in a statement by EU’s Spokesperson for Foreign Affairs and Security Policy Peter Stano, published on the website of the European External Action Service (EEAS) on November 3. Creating obstacles between Ukraine and other states which helped Ukraine in building of anti-corruption system, including the European Union, the United States, Canada, Japan, South Korea, «OPFL» is striking a blow against Ukraine's positions in the international arena.

President Volodymyr Zelenskyy chaired an urgent closed-door session of the National Security and Defense Council of Ukraine on October 29, on urgent measures to be taken by the state after the Constitutional Court ruled that certain provisions of the Law on Prevention of Corruption and Article 366-1 of the Criminal Code were unconstitutional. As a result 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.[2]

Due to the large number of groups of influence and the lack of de facto unity in the «Servant of the People» presidential faction, the reluctance of other political forces to resolve the crisis, a bill of President Zelensky was not considered by the parliament. In an interview with «Ukrayinska Pravda», the head of the «Servant of the People» faction, David Arahamiya, said that the relevant parliamentary committee was considering only the bill aiming an immediate returning the verification of declarations. "As a kind of transitional project that allows at least partially return everything to the legal channel." Although deputies are well aware that this project does not solve the global problem. The presidential bill, in turn, according to Arahamiya, is an initiative that more clearly places emphasis and much more correctly solves the key task of restoring the rule of law, but the committee did not consider it at all.[3]

So why has Zelenskyy's Initiative generated a wave of criticism from opposition forces? In particular, "Golos", "Batkivshchyna", "European Solidarity" and "OPFL", sharply criticized the president. The mass media controlled by the opposition have spread fakes and manipulations that V. Zelensky allegedly aims to extend his power on court to control it and to usurp power.

It is necessary to understand separately what kind of relations is between political leaders and judges of the Constitutional Court of Ukraine and what are their interests? It is worth noting that the judges of the Constitutional Court became inviolable during the reform under Poroshenko in 2016. According to ex-Deputy Prosecutor General of Ukraine Viktor Chumak, this was done intentionally to promote his own judges to the CCU. [4] These judges are still performing their duties in Constitutional Court. Viktor Yanukovych, in turn, appointed Oleksandr Tupytsky to the CCU, who was elected chairman a year ago. His wife, Olena Tupytska, was an assistant to the People's Deputy from the Party of Regions, the party of Yanukovych, in 2012-2014. Last year, the head of the CCU earned UAH 4.5 million, and the NAPC, before the scandalous decision, had the opportunity to initiate his prosecution for non-declaration of land in the Russian-occupied Crimea, which he bought in 2018 and registered in accordance with the legislation of the Russian Federation.[5]

The leader of the «Batkivshchyna» parliamentary faction, Yulia Tymoshenko, in turn, called the decision of the Constitutional Court on e-declaration justified and and called for an end to bullying against the court. Earlier, Tymoshenko tried to prevent the creation of a land market in Ukraine through the Constitutional Court. The creation of a land market was one of the main promises of V. Zelensky and a condition for continuing cooperation with the International Monetary Fund, but Tymoshenko, together with other opposition forces, fought against this initiative to the last.

In addition, Medvedchuk`s «OPFL» filed a lawsuit before Constitutional Court in summer to abolish the law on the Ukrainian language and CCU began its proceedings almost immediately after the decision led to the constitutional crisis. Decisions on the language law were to be taken behind closed doors on November 3, 2020, together with the decision on the Law on Deposit Guarantee System, which in case of repeal could lead to the destruction of Ukraine's banking system. However, these issues were removed from the agenda indefinitely. Also, in summer, deputies from the opposition parties and deputies who are associated with the oligarch Igor Kolomoisky, initiated the dismissal of the director of the National Anti-Corruption Bureau of Ukraine Artem Sytnyk. The Constitutional Court ruled that some of the provisions of the law on the National Anti-Corruption Bureau are unconstitutional. Challenging the independence of anti-corruption bodies, the CCU and the deputies who initiate this kinds of lawsuits pose threats to the functioning of the visa-free regime and further Western support of Ukraine.

The intention of the opposition forces, which mostly represent the pro-Russian "fifth column" and the Ukrainian oligarchy, to preserve the kleptocratic political regime in Ukraine, formed and consolidated during the presidencies of V.Yanukovych and P. Poroshenko, is becoming evident. During the historical period of their reign, the activities of central authorities, parliament, law enforcement agencies and the judiciary, agencies personnel were reformatted in the interests of the Ukrainian kleptocracy.

The Constitutional Court has become the mainstay of this kleptocratic system, and total corruption is the main mechanism of public administration, which is a typical phenomenon under a kleptocratic political regime. It is no coincidence that the Constitutional Court began the destruction of the state system of Ukraine by destroying anti-constitutional bodies and "reviewing" the constitutionality of the Law on the State Ukrainian Language.

President Zelensky's attempts to dismantle this kleptocratic regime by carrying out democratic reforms found fierce resistance in the Verkhovna Rada of Ukraine and in pro-Kremlin and oligarch-controlled Ukrainian media.

The actions of opposition parties are clearly and consistently aimed at shaking up the internal situation, destabilizing the central government and achieving their own political goals. The Constitutional Court of Ukraine, in turn, has become an instrument actively used by opposition and pro-Russian forces to change the state's foreign policy and to destroy state institutions, what would allow them to come to power. Ukraines leadership has to respond decisively to the subversive actions of political parties and groups of influence, to reform the judiciary and to maintain the support of partner countries by adhering to its commitments.