By: Mykola Vorobiov
November 19, 2020
Eurasia Daily Monitor
On October 27, the Constitutional Court of Ukraine (CCU) canceled the requirement for government officials and supreme judges to file electronic declarations of all their assets, including salaries, property and other sources of income. This was one of the key reforms implemented since the 2013/2014 EuroMaidan revolution and an essential condition set by Ukraine’s Western partners to secure their international assistance, including loans from the International Monetary Fund (IMF) and World Bank. At the same time, the Ukrainian high court’s decision in effect invalidated the powers of the National Anti-Corruption Agency (NACA), which heretofore had important supervision powers over judges (Zn.ua, October 30).
Activists and opposition politicians gathered in front of the CCU building a few days later to protest the controversial ruling. Some threw burnt tires, smoke bombs and flares. European Union representatives to Ukraine strongly condemned the court’s judgement, stating that it casts doubt on a number of international obligations, including to the EU, that Ukraine had pledged to uphold (EurAsia Daily, October 30). Critically, the CCU decision endangers Ukraine’s visa-free travel regime with Europe.
The constitutional judges’ controversial ruling came about as a result of an appeals case brought to the court by 47 Ukrainian members of parliament (MP) who claimed that the obligation to publicly declare all their holdings violated their civil rights. Of this group of plaintiffs, 44 represented the pro-Russian Opposition Platform–For Life party. Two more members joined from the For the Future parliamentarian group linked to oligarch Ihor Kolomoysky (Nv.ua, October 29).
Following the publication of the judges’ decision, the State Bureau of Investigation opened a number of criminal cases involving the chairperson of the CCU, Oleksandr Tupytsky. At the same time, investigative journalists published materials on his undeclared property, including in Russian-occupied Crimea, that he acquired in 2018 (Radiosvoboda.org, November 18).
Additional reporting revealed that another CCU judge, Oleksandr Lytvinov, had graduated in 1988 from the Far Eastern Higher Combined Arms Command School (DVOKU), the same institution attended by undercover Russian military intelligence (GRU) agent Anatoliy Chepiga who was involved in the infamous poisoning by novichok of the Skripals in Salisbury, United Kingdom, in 2018. After graduating from the military school, Lytvinov reportedly served as an officer in the Armed Forces; but the journalistic investigation could not determine where or when (24tv.ua, November 10).
After the open confrontation outside the CCU building, President Zelenskyy described the court’s recent activities as a “destructive hurricane” and an attempted “counter-revolution,” and he called on civil society and Western partners to intervene. In the meantime, he refused to name personally those behind the CCU’s decision. But he did introduce a bill to the Verkhovna Rada (national parliament) to disband the Constitutional Court. And should the crisis continue, Zelenskyy further threatened to dismiss the Rada itself (Nv.ua, November 2).
At a subsequent meeting of the National Security and Defense Council of Ukraine, the president stressed that the problem must not be solved in the streets. But he warned that these and other similarly “counter-revolutionary” decisions by the CCU will be used by Ukraine’s enemies to discredit the country abroad (Narazi.media, November 5).
CCU judge Igor Slidenko, who served as a rapporteur in the October 27 case, has stated that Zelenskyy’s attempted “coup”—referring to the president’s attempt to replace all the judges on the CCU—could lead to the disintegration of the country. For his accusations against the CCU members, Zelenskyy should be put in jail for 150 years, Slidenko stated. The head of state’s representative in the CCU, Fedor Venislavsky, replied that Zelenskyy has legal grounds to disband the court. However, many local experts consider such a move political interference that would threaten the institutional independence of the country’s judiciary (Pravda.com.ua, November 3).
On November 2, the leader of the pro-Russian Opposition Platform–For Life, Victor Medvedchuk, called on Zelenskyy to go ahead and dissolve the parliament because the recently held local elections (October 25) purportedly showed that the president’s Servant of the People party had lost its trust among the people. In Medvedchuk’s view, the current leadership at all levels demonstrates a lack of political will to return Donbas under Kyiv’s control (Focus.ua, November 2).
The possible snap elections could lead to a renaissance of pro-Russian political forces inside Ukraine. Medvedchuk’s party, in particular, would be expected to come in second place overall with as much as 17.1 percent of the vote, according to recent public polling (Pravda.com.ua, November 12). Other beneficiaries could be a number of small political factions loyal to Moscow that would have a high chance of entering the next Rada.
As former CCU chairperson (1996–2005) Volodymyr Shapoval has pointed out, most judges sitting on the court today are closely enmeshed in Russian political culture. For example, they find specialists in constitutional law from Germany, Austria and other European counties to be downright incomprehensible. This crisis was created outside of Ukraine, Shapoval concluded in his interview (Lb.ua, November 11). Thus, given the central role in it that was played by 44 MPs of Opposition Platform–For Life, a full-on legal and constitutional crisis in Ukraine could be beneficial for the Kremlin.
Zelenskyy has expressed concern that if the CCU judges face no consequences for undermining the NACU and other hard-fought anti-corruption measures adopted since the EuroMaidan revolution, they may next find opportunities—perhaps again catalyzed by actions of pro-Russian political forces like Medvedchuk’s party—to repeal other key reforms and vital legislation needed for Ukraine’s further EU integration. These could include land and banking laws, the independence of the judiciary, or the country’s language laws (Nv.ua, November 2).
At this point, Zelenskyy’s options are limited, as it is not clear whether his threatened harsh reaction will be supported by Western partners. On the other hand, insufficient measures could lead to a further deepening of the confrontation between the three governing branches of the country. In such a situation, Moscow will not stand aside and can be expected to exploit its levers inside Ukraine to destabilize the situation further.