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Ukraine: No Clear Way Forward On Fight Over Constitutional Court, Corruption

Ukrainian activists throw smoke flares during an October 30, 2020 rally outside Kyiv's Constitutional Court building. The demonstrators demanded that the judges come out and explain their reasons for ruling against criminal penalties for false financial disclosures by officials.
Ukrainian activists throw smoke flares during an October 30, 2020 rally outside Kyiv's Constitutional Court building. The demonstrators demanded that the judges come out and explain their reasons for ruling against criminal penalties for false financial disclosures by officials.

A call from European constitutional-law experts for Ukraine to both fight corruption and respect the rule of law appears to have done little to resolve the Eastern European country’s budding constitutional crisis.

Wary of losing international financial support, however, Ukraine has begun to assert that its 45-day standoff with the Ukrainian Constitutional Court over the government’s ability to hold officials accountable for their financial disclosures is now under control.

The dispute started on October 27, when Ukraine’s Constitutional Court, which interprets the constitutionality of laws and other official measures, ended penalties for officials who supply incorrect or incomplete information in their annual financial disclosures. In the 11-4 vote, it also banned the National Agency for Preventing Corruption (NAZK) from investigating these disclosures.

Four of the court’s 15 judges were under investigation by the NAZK for inaccurate financial disclosures at the time of this decision.

In response, Ukrainian President Volodymyr Zelenskiy, elected on an anti-corruption platform, urged parliament to disband the Constitutional Court – a move that the Ukrainian Constitution does not allow.

He also threatened to dissolve parliament, which his Servant of the People party controls, if the legislature did not comply.

Amidst concerns that Ukraine’s troubled anti-corruption campaign was slipping, international observers warned that outside financial support for the Ukrainian economy and its visa-free travel to the European Union depended on the government fighting corruption.

The International Monetary Fund has since paused a scheduled 2020 tranche of a $5-billion support payment for Ukraine.

In what some critics called an attempt to mollify the IMF and EU, Zelenskiy then requested the Venice Commission, which advises on constitutional law for the Council of Europe, the continent’s largest human-rights body, to evaluate Ukraine’s anti-corruption legislation and the Constitutional Court’s actions.

But the resulting December 9 opinion gave the president little decisive leverage. The Venice Commission, writing together with the Council of Europe’s Directorate General of Human Rights and Rule of Law, supported both the government and the Court.

The Commission found that the Court’s October 27 decision “lacks clear reasoning,” and a “firm basis in international law;” it also termed as “striking” the fact that four judges had apparent conflicts of interest with the case before them.

On December 11, it wrote that the Constitutional Court – made up of judges chosen equally by the president, parliament, and a College of Judges – requires urgent reform.

Nonetheless, the Venice Commission urged the Ukrainian executive branch and parliament to enact the Court’s decision on financial disclosures and the NAPC, and to respect the Court as “the gatekeeper of the Constitution.”

Fighting corruption and respecting the constitution “go hand in hand,” the Commission observed.

In a December 11 tweet, President Zelenskiy expressed gratitude to the Commission for its opinion, which, he noted, would be considered during Ukraine's judicial reforms.

Along with Prime Minister Denys Shmyhal, he also emphasized on December 11 the importance of Ukraine’s cooperation with international financial institutions.

The same day the Venice Commission had released its initial opinion, the EU disbursed a 600-million-euro ($727.1 million) in macro-financial aid to Ukraine.

But how far the government will go in following the Venice Commission’s advice and respecting the Constitutional Court as the constitution’s guardian is unclear.

“We have no constitutional crisis,” Deputy Prime Minister for European and Euro-Atlantic Integration Olha Stefanishyna asserted on November 25. “The crisis is due to the decision of the Constitutional Court.”

Zelenskiy officials and supporters allege that oligarchs stand behind the court’s current 15 judges, among whom, they claim, are justices who “openly sympathize with the Russian Federation.”

In a December 7 commentary for the Atlantic Council think-tank, Ukrainian Foreign Minister Dmytro Kuleba asserted that the Constitutional Court poses a “threat” to Ukraine’s entire reform process.

Upcoming decisions on private land sales and banking reforms, among others, now face “ominous” prospects, Kuleba alleged.

Servant of the People legislator Liza Bohutska also believes the Constitutional Court acted not to protect the constitution, but its own interests.

“There’s not a single constitutional norm with which we can somehow impact the Constitutional Court,” she claimed in November.

In response, Constitutional Court Chairman Oleksandr Tupytskiy has charged that Zelenskiy’s proposed dissolution of the Court amounts to a “constitutional coup.”

On December 11, the Court’s website featured only that part of the Venice Commission report that urged respect for the “gatekeeper of the constitution.”

But Judge Tupytskiy, appointed by ousted President Viktor Yanukovych, himself appears to be part of the reason for the Venice Commission’s call for a Court makeover.

In 2018, Tupytskiy acquired 126 square kilometers of land near Yalta, a popular resort town in Crimea, the Ukrainian Black Sea peninsula that Russia annexed in 2014, the investigative TV program Schemes (Skhema) reported this November. (Schemes is broadcast by Current Time and produced by RFE/RL’s Ukrainian Service.)

Under Ukrainian law, such an acquisition is illegal.

Tupytskiy told Schemes that he omitted the information from his annual online financial disclosure because he could not figure out how to declare the property.

Tupytskiy previously worked as a prosecutor’s office investigator, but this experience with asking questions apparently did not help him.

“Why didn’t I put it in the registry? I still don’t know how to do this,” he claimed.

He admits no wrongdoing.

“The one thing I probably did wrong is not getting in touch with the NAPK [National Agency for the Prevention of Corruption] organs, so that they’d explain to me how to do this.”

He emphasized that he recognizes Crimea as part of Ukraine.

But lawyer Roman Maselko, a member of the Public Integrity Council, which helps assess whether Ukrainian judges meet ethics requirements, underlined that Tupytskiy violated article 9 of the law about citizens’ rights in Ukraine’s “temporarily occupied territories.”

“Judges do not have the right to get into any relations with the occupying authorities,” Maselko said. “[A]s a representative of the judicial branch, he (Tupytskyi) should hold the position that these organs are illegal and buying some kind of property there signifies recognizing their legitimacy.”

The State Bureau of Investigation is examining Tupytskyi’s conduct in Crimea on suspicion of “high treason” and the illegal “occupation” of land. If charges are filed, they could lead to a prison sentence of 12-15 years and the potential loss of property.

To date, Judge Tupytskiy has refused to undergo any questioning by the agency.

Aside from the judge’s Crimea property, a high-end Kyiv apartment and suburban house-with-pool -- registered in the names of Tupytskiy’s mother and mother-in-law, respectively -- also do not appear in his financial declarations.

While the Constitutional Court’s October 27 decision scrapped the potential penalties for these omissions, parliament on December 4 reinstated the measures at Zelenskiy’s proposal.

Criminal penalties for false asset declarations, however, only start at over 9 million hryvnias ($321,728).

The European Union’s envoy to Kyiv, Maati Maasikas, welcomed the legislation as a response to the Constitutional Court ruling, but noted that it still fails to provide “a real working deterrent system of asset declarations.”

“So, our position is that this law needs to be improved and strengthened,” the UNIAN news agency reported him as saying on December 10.

In the meantime, Ukraine’s constitutional standoff continues on.

-With additional reporting by Reuters, Ukrinform, and UNIAN

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