Information for mass media on the situation related to non-admission of the Chairman of the Constitutional Court of Ukraine by the employees of the Department of the State Guard of Ukraine to the Court’s premises
Upon the commission of the Chairman of the Constitutional Court of Ukraine we inform that today, 19 January 2021, the Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi was not allowed to enter the premises of the Constitutional Court of Ukraine by the employees of the Department of the State Guard of Ukraine. No explanations, written commissions (orders) were provided by the employees of the said Department.
Later, an information appeared on the official website of the Department of the State Guard of Ukraine from which it followed that the Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi was not admitted in view of the application of the State Bureau of Investigation on observance of the provisions of the Constitution of Ukraine, the Code of Criminal Procedure of Ukraine, enforcement of the requirements of the Decree of the President of Ukraine of 29 December 2020 No.607/2020 as well as in order to eliminate the risks which had caused the removal of Oleksandr Tupytskyi from the office of the Judge of the Constitutional Court of Ukraine and for the sake of non-admission of the latter to the premises of the Constitutional Court of Ukraine for the term of effect of the Decree of the President of Ukraine of 29 December 2020 No.607/2020 (two months).
Furtheron, the following information was posted on the official website of the State Bureau of Investigation:
“A suspected judge of the Constitutional Court of Ukraine, who performs the administrative functions of its Chairman, disregarding the requirements of the Constitution of Ukraine and the provisions of the Criminal Procedure Code of Ukraine, acting to obstruct the pre-trial investigation in which he is a suspect, continues to arrive at his workplace, hinder the establishment of truth in the criminal proceedings, prevent his subordinates from providing documents at the request of the pre-trial investigation body and the appearance of persons on the summons of the investigator.
We remind that investigators of the State Bureau of Investigation in coordination with acting Prosecutor General on 28 December 2020 notified the judge of the Constitutional Court of Ukraine, who performs the administrative functions of its Chairman of the suspicion in committing criminal offenses against justice stipulated by Articles 384.2 and 386 of the Criminal Code of Ukraine (knowingly false testimony, combined with the artificial creation of evidence, bribery of a witness in order to refuse to testify).
Moreover, the Chairman of the Constitutional Court of Ukraine, after notification of the suspicion, imitates its non-delivery, that he has not acquired the status of a suspect, continuing to arrive to his workplace.
The Court Secretariat has in fact been transformed into the law firm of the Court Chairman, since the former drafts, publishes, registers, and sends documents for the Court Chairman that have nothing to do with the constitutional proceedings but are only related to his participation in the criminal proceedings.
We remind that based on Article 154.3 of the Code of Criminal Procedure of Ukraine, acting Prosecutor General made a submission to the President of Ukraine to remove the judge of the Constitutional Court of Ukraine and the Chairman from office.
Following the consideration of this submission by the Decree of the President of Ukraine of 29 December 2020 № 607/2020, he was removed from office of a judge of the Constitutional Court for a period of two months. As a result, the suspect lost the right to execute the duties of a judge of the Constitutional Court and its Chairman for a period of two months.
Given the public response to the criminal proceedings in which the judge of the Constitutional Court of Ukraine and its Chairman was notified of the suspicion, we inform that investigators of the State Bureau of Investigation in strict compliance with the current legislation of Ukraine take comprehensive measures to ensure compliance with the Presidential Decree of 29 December No.607/2020, according to which the latter has no right to exercise the powers of a judge of the Constitutional Court and its Chairman and to stay in the premises of this court for two months.
It is impossible to prevent the risks of the latter's influence on other witnesses in this criminal proceedings – the Court’s employees, obstruction to the providing of documents by them at the request of the investigator, appearance for interrogation, etc., other than by removing from the office of the judge of the Constitutional Court of Ukraine and simultaneously the Chairman”.
Given the shared information, we consider it necessary to inform the public about the following.
The Constitution of Ukraine has the highest legal force; laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it (Article 8.2 of the Constitution of Ukraine).
Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine (Article 19.2 of the Constitution of Ukraine).
The Basic Law of Ukraine establishes the grounds and procedure for dismissal of a judge of the Constitutional Court of Ukraine from office or termination of his powers, his detention or detention or arrest (Articles 149, 149¹ of the Constitution of Ukraine).
Public authorities and their officials are obliged to strictly comply with the requirements of the Constitution of Ukraine, including those that guarantee the independence of the Constitutional Court of Ukraine, independence and inviolability of judges of the Constitutional Court of Ukraine (Articles 147, 149 of the Constitution of Ukraine).
Article 153 of the Constitution of Ukraine stipulates that the procedure for organising and operating the Constitutional Court of Ukraine, the status of judges of the Court, the grounds and procedure for applying to the Court, the procedure for considering cases and delivering decisions of the Court are determined by the Constitution and law.
Pursuant to Article 24.9 of the Law of Ukraine “On the Constitutional Court of Ukraine”, a judge of the Constitutional Court shall be notified of a suspicion of committing a criminal offense by the Prosecutor General or a person exercising his powers. This makes it illegal for any of the other persons to carry out this procedural action.
In this regard, the information published on the website of the State Bureau of Investigation that “investigators of the State Bureau of Investigation upon the agreement with the acting Prosecutor General informed the judge of the Constitutional Court of Ukraine, who performs the administrative functions of its Chairman, on 28 December 2020 about the suspicion in committing criminal offenses against justice envisaged by Articles 384.2 and 386 of the Criminal Code of Ukraine (knowingly false testimony, combined with the artificial creation of evidence, bribery of a witness in order to refuse to testify)” is surprising and worrying.
The information that “… investigators of the State Bureau of Investigation in strict compliance with the requirements of current legislation of Ukraine take comprehensive measures to ensure compliance with the Decree of the President of Ukraine of 29 December 2020 No. 607/2020, according to which the latter has no right to perform the powers of a judge of the Constitutional Court and its Chairman and to be in the premises of this court for two months” is not true.
Based on the content of the Decree of the President of Ukraine “On removal of a judge of the Constitutional Court of Ukraine from office“ No. 607/2020 O.Tupytskyi is removed from office of a judge of the Constitutional Court of Ukraine for a term of two months. Such removal does not deprive him of the status of a judge of the Constitutional Court of Ukraine and its Chairman.
The text of the mentioned Decree does not contain any instructions or prohibitions on the admission of the judge of the Constitutional Court of Ukraine O.Tupytskyi to the premises of the Constitutional Court of Ukraine.
Article 9 of the Law of Ukraine “On State Protection of State Authorities of Ukraine and Officials” of March 4, 1998 No.160 stipulates that state protection is provided in respect of buildings where the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine, the Constitutional Court of Ukraine, the Supreme Court operate, buildings and special vehicles in their application, other places of permanent and temporary stay of persons protected in accordance with this Law, important state facilities and adjacent territories and waters designated by the President of Ukraine.
Articles 10 and 12 of this Law establish that state protection is provided by the Department of State Guard of Ukraine, which is tasked with exercising state protection of state authorities of Ukraine, ensuring the security of officials specified by this Law at their location both in Ukraine and abroad.
At the same time, Article 13 of the Law of Ukraine “On State Protection of State Authorities of Ukraine and Officials”, which defines the powers of the Department of State Guard, or other norms of this Law, does not provide the powers of the Department to independently determine persons entitled to enter the object of protection.
Moreover, in accordance with paragraph 2.5. of the Procedure for admission to the facilities of the Constitutional Court of Ukraine, approved by the Order of the acting Chairman of the Constitutional Court of Ukraine “On approval of the Procedure for admission to the facilities of the Constitutional Court of Ukraine in the new wording” of February 1, 2018 No. 12/1/2018-RSO-dsk servicemen of the security unit are prohibited from obstructing the access of judges of the Constitutional Court of Ukraine to the object of protection or in any other way from interfering in their activities.
Contrary to the above provisions of the Constitution of Ukraine, the Law of Ukraine “On State Protection of State Authorities of Ukraine and Officials”, the Procedure for admission to facilities of the Constitutional Court of Ukraine, judge and Chairman of the Constitutional Court of Ukraine O.Tupytskyi was not allowed to enter the building of the Constitutional Court of Ukraine by the employees of the Department of State Guard of Ukraine. At the same time, no explanations or written instructions (orders) were provided by the employees of the respective Department.
It is also blatantly untrue to claim that “the Court Secretariat has in fact been transformed into the law firm of its Chairman, as the former prepares, publishes, registers, and sends documents for the Chairman of the Court that have nothing to do with the constitutional proceedings but are only related to his participation in criminal proceedings”.
In accordance with Article 44 of the Law of Ukraine “On the Constitutional Court of Ukraine”, the Secretariat of the Court provides organisational, analytical, legal, informational and logistical support to the Court. The Regulation on the Secretariat of the Constitutional Court of Ukraine stipulates that the Secretariat of the Court prepares and submits for consideration by the Chairman of the Court, the Deputy Chairman of the Court, judges of the Court, the management of the Secretariat review and analytical materials on topical issues of the functioning of the Court. This Regulation obliges the Secretariat to ensure that the activities of the Court and the Secretariat are covered on the Court's official website and in the mass media.
According to the Regulation on the official website of the Constitutional Court of Ukraine, the website of the Constitutional Court provides, inter alia, information, the promulgation of which is envisaged by the laws of Ukraine “On the Constitutional Court of Ukraine”, “On the Procedure for Coverage of the Activities of Public Authorities and Local Self-Government Bodies in Ukraine by Mass Media”, Rules of Procedure of the Constitutional Court of Ukraine.
Article 2 of the Law of Ukraine “On the Procedure for Coverage of the Activities of Public Authorities and Local Self-Government Bodies in Ukraine by Mass Media” stipulates that state authorities and local self-government bodies are obliged to provide mass media with full information about their activities through relevant information services of the public authorities and local self-government bodies. To cover the activities of public authorities and local self-government bodies, their information services have the right to use various forms of preparation and publication of information that do not contradict the legislation of Ukraine (Article 6 of the respective Law).
