Today, April 13, 2023, the Grand Chamber of the Court at the public part of the plenary session in the form of written proceedings deliberated the case upon the constitutional petition of 58 People's Deputies of Ukraine regarding the conformity of specific provisions of the Law of Ukraine “On the State Bureau of Investigation” dated November 12, 2015 No. 794– VIII as amended (hereinafter referred to as “the Law”). with the Constitution of Ukraine.
During the plenary session, the Grand Chamber of the Constitutional Court of Ukraine examined the request of the Representative of the President of Ukraine in the Constitutional Court of Ukraine, Serhii Dembovskyi, to close the constitutional proceedings in this case and, upon the results of the deliberation of the petition, decided to refuse to grant it.
During the plenary session, the judge-rapporteur in the case, Serhiy Holovaty, reported on the content of the constitutional petition and the grounds for initiating constitutional proceedings in the case.
The judge-rapporteur noted that the subject of the right to a constitutional petition appealed to the Constitutional Court of Ukraine regarding the conformity of specific provisions of the Law with the Constitution of Ukraine, namely:
- Article 1 of the Law on the designation of the State Bureau of Investigation as a state law enforcement agency;
- Article 9.1.2 of the Law, according to which the President of Ukraine is authorised to determine the organisational structure of the State Bureau of Investigation;
- Article 11.1 of the Law, according to the provisions of which the President of Ukraine is empowered to appoint the Director of the State Bureau of Investigation upon submission of the commission for holding a competition for the position of Director of the State Bureau of Investigation, as well as to dismiss the Director of the State Bureau of Investigation from the position if there are reasons specified by parts 4 and 5 of Article 10 of the Law;
- Article 11.3.1 of the Law, according to which the President of Ukraine is authorised to appoint three persons to the commission for holding a competition for the position of Director of the State Bureau of Investigation;
- Article 28.2 of the Law, according to which the President of Ukraine is authorised to approve, upon submission of the Director of the State Bureau of Investigation, the Regulations on the Council of Public Control and the Procedure for its Formation.
People's Deputies of Ukraine believe that the contested provisions of the Law do not correspond to Articles 6, 8, 19, 106, 113, and 116 of the Constitution of Ukraine.
Substantiating the unconstitutionality of the contested provisions of the Law, the People's Deputies point out that the scope and limits of the powers of the President of Ukraine are determined exclusively by the Constitution of Ukraine and may not be expanded by law or other normative acts.
In the constitutional petition, its authors note that in accordance with the contested provisions of the Law, the President of Ukraine is granted powers similar to those assigned to the sphere of competence of the Cabinet of Ministers of Ukraine according to Article 116 of the Constitution of Ukraine. The indirect subordination of the State Bureau of Investigation to the President of Ukraine creates a threat to the independence of the law enforcement body and leads to the concentration of executive power in the President of Ukraine, his competition with executive power bodies, and therefore the levelling of guarantees of human and citizen’s rights and freedoms. In fact, this is the creation of a parallel executive power that is subordinate to the President of Ukraine, which leads to the establishment of undefined limits of the powers of the head of state, contrary to the constitutional principle of the separation of state power.
According to the People's Deputies of Ukraine, granting the President of Ukraine the authority to form the organisational structure of the State Bureau of Investigation, to determine the composition of the competition commission and to approve the Regulations on the Council of Public Control and the Procedure for its Formation “is a manifestation of direct interference in the sphere of activity of the Cabinet of Ministers of Ukraine, as the highest body of executive power, at the basis of which the powers to ensure and create, reorganise and liquidate the bodies of the central executive power (Article 116 of the Constitution of Ukraine) are defined, and this constitutes the fundamental basis of the constitutional order in the country.”
The judge-rapporteur also informed that in order to ensure a full and objective deliberation of the case and to deliver a reasoned decision by the Court, he sent requests to state authorities, scientific institutions, establishments of higher education and scholars to express their opinions on the issues raised in the constitutional petition. The content of the received answers, as well as those that will be received, will be examined at the in-camera part of the plenary session of the Grand Chamber.
The Court examined the materials of the case in the public part and proceeded to the in-camera part of the plenary session for a decision.
The representative of the subject of the right to constitutional petition, People's Deputy of Ukraine Vasyl Nimchenko, attended the plenary session of the Grand Chamber.
The video recording of the public part of the plenary session is available at the link: “Archive of Video Broadcasts of Sessions”.
