The Court proceeded to the in-camera part of plenary session for adoption of the decision in the case on the constitutionality of certain provisions of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”
On September 10, the Grand Chamber of the Constitutional Court of Ukraine considered the case upon the constitutional petition of 50 People’s Deputies of Ukraine on compliance of certain provisions of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” of October 14, 2014 as amended (hereinafter - the Law) at the public part of plenary session in the form of oral proceedings.
At the public part of plenary session, Judge-Rapporteur in the case Oleksandr Lytvynov set out the content of the constitutional petition and the grounds for initiating constitutional proceedings in the case.
He informed that the subject of the right to constitutional petition applied to the Constitutional Court of Ukraine with a request to declare unconstitutional certain provisions of the Law, namely:
- Article 1.1.1 in the part of definition of the National Anti-Corruption Bureau of Ukraine (hereinafter - the National Bureau) as the state law enforcement body;
- Articles 1.2, 6.1, 7.3.1, paragraph 2 of Article 7.9, second sentence of paragraph 2 of Article 26.6, Article 31.2 in the part of consolidating the powers of the President of Ukraine to establish the National Bureau, to appoint and dismiss the Director of the National Bureau, to appoint three members of the competition commission for the position of the Director of the National Bureau (hereinafter - the Competition Commission), to appoint one of the candidates selected by the Competition Commission, to appoint one member of the External Control Commission, to approve regulations on the Public Control Council and on the procedure for its formation.
The petitioners claim that the disputed provisions of the Law contradict Articles 6, 8, 19, 85, 106, 113 and 116 of the Constitution of Ukraine.
In substantiating their position, the petitioners point out that according to Articles 113 and 116 of the Basic Law of Ukraine, exclusively the Cabinet of Ministers of Ukraine as the highest body in the system of executive bodies ensures, in particular, the implementation of domestic and foreign policy, takes measures to ensure human and citizen’s rights and freedoms, takes measures to ensure the defence capability and national security of Ukraine, public order and to combat crime. At the same time, the National Bureau has all the characteristics of an executive body in terms of its functional purpose and defined responsibilities. By authorising the President of Ukraine to establish the National Bureau, the legislator violated the provisions of Articles 19 and 85 of the Basic Law of Ukraine, and in fact subordinated the National Bureau to the President of Ukraine, which contradicts the basic provisions of Articles 113 and 116 of the Constitution.
According to the petitioners, the subordination of the National Bureau to the President of Ukraine is a manifestation of direct interference in the system of executive bodies, which may lead to a gradual and veiled change in the balance of power. "The scope and limits of the powers of the President of Ukraine are determined exclusively by the Constitution of Ukraine and may not be extended by law or other regulations", the petition runs.
The People's Deputies of Ukraine claim that the disputed norms of the Law do not comply with the principle of independence of legislative and executive bodies in exercising their powers as a fundamental basis of the constitutional order in the country, as well as violate the legal order in Ukraine.
The Judge-Rapporteur also said that the Court had sent requests to the President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, the Prosecutor General, the Prime Minister of Ukraine and the Verkhovna Rada Committees on Anti-Corruption Policy, Legal Policy, and Law Enforcement Activities.
In order to outline scientific approaches to address issues raised in the constitutional petition, inquiries were also sent to Vasyl Stus Donetsk National University, Taras Shevchenko National University of Kyiv, Yaroslav Mudryi National Law University, National University of “Odesa Law Academy”, National University of “Kyiv Mohyla Academy”. In addition, the Court forwarded a request a non-governmental organisation, namely the Center for Political and Legal Reforms.
The Court heard explanations of the participants of the constitutional proceedings on the subject matter of the constitutional control, in particular: representatives of the subject of the right to constitutional petition, the People's Deputies of Ukraine Hryhoriy Mamka, Vasyl Nimchenko, Antonina Slavitska, Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court of Ukraine Olha Sovhyria and Representative of the President of Ukraine to the Constitutional Court of Ukraine Fedir Venislavskyi.
The involved participants of the constitutional proceedings - the Chairwoman of the Supreme Court Valentyna Danishevska, the President of the High Anti-Corruption Court Olena Tanasevych, the Minister of Justice of Ukraine Denys Maliuska, the First Deputy Prosecutor General Roman Hovda, Acting Head of the Specialised Anti-Corruption Prosecutor's Office Maksym Hryshchuk, Chairman of the National Agency on Corruption Prevention Oleksandr Novikov, First Deputy Director of the State Bureau of Investigation Oleksandr Babikov, Head of the Legal Department of the National Anti-Corruption Bureau of Ukraine Ihor Yarchak - also stated their position.
In addition, the Court heard the closing arguments of the participants in the constitutional proceedings.
Following the recognition by the Grand Chamber of the Court that the examination of the case files in the public part of the plenary session had been completed, the Court proceeded to the in-camera part of the plenary session for a decision.
The Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi chaired the plenary session.
The public part of the plenary session is available on the official website of the Constitutional Court of Ukraine at the link: http://ccu.gov.ua/kategoriya/2020.
