By Mark Raczkiewycz
January 8, 2021
The Ukrainian Weekly
KYIV – Ukraine entered the new year with a mounting constitutional crisis that will further test President Volodymyr Zelenskyy’s resolve to reform a system he promised “to break” during his election campaign.
Five days into 2021, the Constitutional Court issued a statement that said a presidential decree to suspend the court’s chief, Oleksandr Tupytskyi, “may lead to blocking the work” of the court and make it “impossible” to exercise “constitutional control in order to ensure the supremacy of the Constitution of Ukraine, assertion of human rights and freedom.”
An attached legal opinion by the court’s Research and Consultative Council accompanied the statement, which reinforced the judicial body’s previous statement made on December 30, that called Mr. Tupytskyi’s two-month suspension “legally null and void.”
The statement equated the decree to unlawful interference in Mr. Tupytskyi’s activities as a Constitutional Court judge. In turn, Mr. Tupytskyi remains “temporarily suspended” from his duties and the court’s statements “have no legal bearing,” said Fedir Venislavskyi, the president’s representative at the Constitutional Court, during an appearance on local television.
He furthermore told Radio Free Europe/Radio Liberty that the Constitutional Court could still work because the decree “concerns only one [Constitutional Court] justice” with 14 more still on the bench, “so they could preside over any case and make any rulings.”
Mr. Tupytskyi’s suspension came a day after he ignored a summons at the prosecutor’s office on December 28 in relation to allegations of bribery and witness tampering. “He influenced the witness in criminal proceedings by bribing him to refuse to testify or to give knowingly false testimony,” the press service of Prosecutor General Iryna Venediktova said in a statement.
The alleged incident took place in 2018, when Mr. Tupytskyi served as deputy chairman of the court, her office’s press service said on December 28. Specifically, the case concerns the privatization of the Zuyivsky Energy and Mechanical Plant in Donetsk Oblast, which occurred more than a decade ago. At that time, Mr. Tupytskyi served as a regional judge in the oblast.
The standoff between Mr. Zelenskyy and the court originated in October 2020 when the court struck down key legislative provisions that the country needed to keep international aid flowing, including a $5.5 billion lending program that was frozen by the Washington-based International Monetary Fund (IMF).
A law making it a criminal offense for a public official to submit false information on their asset declarations was annulled. The court also ruled that judges and others filing asset declarations cannot have their assets or personal lives monitored, Bloomberg News reported.
The ruling was based on court complaints filed by pro-Russian and oligarch-backed lawmakers who hold a minority of seats in the Verkhovna Rada. They also oppose Kyiv’s declared course of further integration with the European Union and NATO and do not support cooperation with the IMF.
At the time of the ruling, several asset declarations of Constitutional Court judges, including that of Mr. Tupynskyi’s, were under scrutiny. He was under investigation for not declaring property in Crimea, the Ukrainian territory that Russia illegally annexed in 2014. Other inconsistencies in Mr. Tupynskyi’s asset declaration included ownership of lavish property in Kyiv Oblast.
After much outcry from pro-Western activists and lawmakers, Parliament passed a new yet softer version of the legislation in December that doesn’t entail imprisonment for providing false information.
Calling the watered-down version “a mistake,” Mr. Zelenskyy has since submitted his own bill to restore punishment for those who would break the law, but the legislature has yet to consider it and Parliament has adjourned for winter break until later this month.
In addition, the court ruled in September that the head of the National Anti-Corruption Bureau (NABU), Artem Sytnyk, had been illegally appointed by Mr. Zelenskyy’s predecessor. Mr. Sytnyk still holds his position, since there is no clear legal instrument that outlines how he could be replaced.
Still, the Venice Commission, Europe’s constitutional advisory body, in December criticized the Ukrainian court’s ruling that had undone much of the anti-graft architecture in place since 2014. It concluded that “reform of the Constitutional Court is warranted.”
It was seen as a setback for Mr. Zelenskyy who had made fighting endemic graft one of the key pillars of his campaign, even vowing to “break the system” during a presidential debate with Petro Poroshenko in 2019. The court and executive branch could remain at loggerheads as other sensitive legislation awaits judgement.
The court’s docket includes a law that formed the basis for cleaning up the banking system, which was fraught with related-party lending and led to the biggest private lender, Privatbank, being nationalized to the chagrin of its previous majority shareholders – oligarchs Ihor Kolomoisky and Hennadiy Boholyubov. Additionally, the land market law, which lifted the moratorium on the sale of agricultural land that is taking effect this year, also faces challenges.
There is a “risk of a prolonged confrontation, given the prospect of the Constitutional Court counterattacking by ruling” on these laws, Kyiv-based investment bank Dragon Capital wrote in a daily note to investors on December 5.