Association of Judges of the Constitutional Court of Ukraine
Kyiv, November 12, 2020
Dear Mr. President!
We consider it necessary to address you regarding the situation around the Constitutional Court of Ukraine in connection with the adoption of the Decision No. 13-r/2020 of October 27, 2020 on the compliance of specific provisions of the Law of Ukraine “On Prevention of Corruption”, the Criminal Code of Ukraine with the Constitution of Ukraine (constitutionality).
Members of the Association of the Judges of the Constitutional Court of Ukraine do not share the reaction of individual politicians, civil servants and public activists to the decision, as some assessments are reminiscent of inspiring the problem and provoking a constitutional conflict. We are convinced that the Constitutional Court of Ukraine acted in accordance with the requirements and within the exclusive powers provided for in Articles 147 and 150 of the Constitution of Ukraine.
Although, let us emphasise that in the media, in particular on television, and on the Internet, some politicians and officials, including chairpersons of anti-corruption bodies, comment on the Decision of the Constitutional Court of Ukraine at their discretion, distorting its content. In this case, only its operative part is given, it is separated from the content of the motivating part, which is actually manipulation. Thus, such officials, due to either low qualifications or intentionally distorting the essence of Decision No. 13-r/2020, artificially create political tension around the Constitutional Court of Ukraine, stating in particular: “they closed the register “E-declarations”, “announced the termination of the inspection of persons applying for public office”, “allowed to receive valuable gifts”, etc. However, this does not follow from the content of the respective decision.
Issues related to the Court's decision were not limited to public discussion, including by those in power. Active draft law work has begun, aimed at eliminating the identified shortcomings and improving anti-corruption legislation.
However, some of the proposed draft laws obviously contradict the fundamental principles and norms of the Constitution of Ukraine, which is unacceptable in a democratic law-based state.
Such draft laws include, but are not limited to, Draft Law No. 4288 “On Restoration of Public Confidence in the Constitutional Judiciary” and No. 4304 “On Resuming the Effect of Certain Provisions of the Law of Ukraine on Corruption Prevention and the Criminal Code of Ukraine”, which propose to recognise the mentioned decision of the Court as “insignificant”, to terminate the powers of the judges of the Constitutional Court and to resume the effect of the unconstitutional norms of the Law considered by the Constitutional Court of Ukraine. Draft laws aimed at blocking the activities of the Constitutional Court of Ukraine by disproportionately increasing quorum for the jurisdiction of sittings of the Constitutional Court of Ukraine, excessive increase in the number of votes for decisions, and even deprivation of funding of the Constitutional Court of Ukraine are also inadmissible.
Such proposals do not comply with the basic provisions of Articles 1, 8, 19, 85, 102, 149, 149-1 of the Constitution of Ukraine.
In such circumstances, it is not that the adoption of such laws and their entry into force, as well as their submission to the Verkhovna Rada for consideration is an encroachment on the Constitution as the Basic Law of Ukraine.
We undoubtedly support efforts to combat the shameful phenomenon of corruption. At the same time, we believe that effectiveness in this activity can be achieved only if the requirements of the Constitution of Ukraine and the laws of Ukraine are observed, as well as unconditional observance of legislative techniques during legislative activity, based, in particular, on the rule of law.
Members of the Association of the Judges of the Constitutional Court of Ukraine are deeply convinced that pressure on judges in any form is unacceptable, as the independence and immunity of a judge of the Constitutional Court of Ukraine are guaranteed by the Constitution and laws of Ukraine. Influence on a judge of the Constitutional Court of Ukraine in any way is prohibited. A judge of the Constitutional Court of Ukraine may not be held liable for voting in connection with the adoption of decisions by the Court and the provision of opinions, except for the commission of a crime or disciplinary misconduct (Article 149 of the Constitution of Ukraine).
The President of Ukraine is the guarantor of observance of the Constitution of Ukraine, human and citizen’s rights and freedoms.
We support the authority of the State of Ukraine, the Head of State and all branches of power, and the Constitutional Court of Ukraine. Influence of one branch of power on another, contrary to the requirements of the Constitution of Ukraine, including the adoption of political and legal decisions is inadmissible, and a legal way out of the situation described in this appeal is possible only on the basis of recognition and execution of the decision of the Constitutional Court of Ukraine - the only body of constitutional jurisdiction in the state.
We look forward to your efforts to resolve the situation around the Constitutional Court of Ukraine in a balanced and fast manner, for which we propose:
- to withdraw your draft law No.4288 from the Verkhovna Rada of Ukraine;
- in case of adoption by the Verkhovna Rada of draft laws on the mentioned issues, which obviously contradict the Constitution, to apply the right of veto to them;
- to request the Verkhovna Rada of Ukraine and the Council of Judges of Ukraine to intensify work on filling vacant positions of judges of the Constitutional Court of Ukraine.
We would like to inform you that this is an appeal from the members of the Association of the Judges of the Constitutional Court of Ukraine, composed of former judges of the Constitutional Court, and its purpose is to provide legal methods to get out of a difficult and dangerous situation for Ukraine.
Sincerely yours,
Upon the consent of the members of the NGO “Association of the Judges of the Constitutional Court of Ukraine”
(signature) I.P. Dombrovskyi
