Upon the commission of the Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi,
we publish the text of an address forwarded to the President of Ukraine
CHAIRMAN
OF THE CONSTITUTIONAL COURT OF UKRAINE
14, Zhylianska str., Kyiv 01033
To the President of Ukraine
V. ZELENSKYI
Dear Mr. President,
I address you as a guarantor of observance of the Constitution of Ukraine, human and civil rights and freedoms. I am forced to do so in the form of an open letter, as the issue raised in it concerns not so much me personally as the activities of the Constitutional Court of Ukraine in general, as well as ensuring the constitutional foundations of the state power and legal order in Ukraine.
On December 29, 2020, you issued the Decree №607/2020 “On removal of a judge of the Constitutional Court of Ukraine from office” which provides for “removal of Tupytskyi Oleksandr Mykolayovych from office of a judge of the Constitutional Court of Ukraine for a period of two months”.
Without going into the substantive legal assessment of this Decree, I will note only that the Constitution of Ukraine, which exhaustively defines the powers of the Head of State, does not grant him the right to remove judges of the Constitutional Court of Ukraine from office. Neither the Constitution of Ukraine nor the Law of Ukraine “On the Constitutional Court of Ukraine” which determine the status of a judge of the Constitutional Court of Ukraine, provide for such an institute (measure of procedural support) as “removal of a judge of the Constitutional Court of Ukraine from office”.
The Constitution of Ukraine (Articles 148 and 149¹) and the Law of Ukraine “On the Constitutional Court of Ukraine” (Articles 17, 18, 20 and 21) stipulate the grounds and procedure for acquiring the status and the authority of a judge of the Constitutional Court of Ukraine and their suspension (loss). The same applies to the status of the Chairman of the Constitutional Court of Ukraine (Article 148 of the Constitution of Ukraine, Article 33 of the Law of Ukraine “On the Constitutional Court of Ukraine”).
The Decree of the President of Ukraine is not an act which issuance results in the loss of the status of a judge and the Chairman of the Constitutional Court of Ukraine by an individual. Therefore, in view of the issuance of this Decree of December 29, 2020 № 607/2020, I have not lost the status of a judge and the Chairman of the Constitutional Court of Ukraine and continue to hold the administrative office of the Chairman of the Constitutional Court of Ukraine.
The Constitution of Ukraine (Article 149) and the Law of Ukraine “On the Constitutional Court of Ukraine” (Article 24) establish guarantees of independence and inviolability of a judge of the Constitutional Court of Ukraine, prohibiting influence on him in any way.
However, all these constitutional and legislative requirements were brutally violated by the staff of the Department of State Protection of Ukraine (hereinafter referred to as “UDO”), who resorted to interference with the activities of judges and the Chairman of the Constitutional Court of Ukraine and blocking the work of the Constitutional Court of Ukraine.
On January 19, 2020, UDO employees committed illegal actions to prevent me as the Chairman of the Constitutional Court of Ukraine and other judges of the Constitutional Court of Ukraine (in particular, Judges O.V. Kasminin, V.R. Moisyk) from entering the premises of the Constitutional Court of Ukraine.
All entrances to the building of the Constitutional Court of Ukraine its territory were blocked by dozens of unknown persons in camouflage uniforms. These persons stayed on the territory and in the premises of the Constitutional Court of Ukraine together with UDO staff, who guard the building of the Constitutional Court of Ukraine on a permanent basis. It was not possible to find out exactly who these people were, as they were dressed in camouflage uniforms without identification marks and flatly refused to tell who they were. The behaviour of these persons, who physically prevented the judges of the Constitutional Court of Ukraine from entering the territory and the building of the Constitutional Court of Ukraine, was very much similar to that of the notorious “green men”.
According to available information, a special UDO unit “Bulat” was involved in blocking the work of the Constitutional Court of Ukraine and obstructing the performance of their duties by the judges and the Chairman, which is known to be used to neutralise especially dangerous criminals and conduct anti-terrorist special operations.
On January 19, 20 and 21, 2021, UDO officers did not allow to enter the service cars of individual judges of the Constitutional Court of Ukraine into the territory of the Constitutional Court of Ukraine.
As for me as the Chairman of the Constitutional Court of Ukraine, illegal actions to prevent me to enter the building of the Constitutional Court of Ukraine by UDO officers were also committed on December 30, 2020, January 19, 20 and 21, 2021.
At the same time, the UDO employees did not present any official documents that would provide grounds for prohibiting the Chairman and judges of the Constitutional Court of Ukraine from entering the premises of the Constitutional Court of Ukraine, but only referred to the oral “order” of their leadership, issued in order to implement the Decree.
Thus, the provisions of the Constitution and laws of Ukraine on the legal basis for the functioning of state power in Ukraine, the guarantee of independence and inviolability of judges of the Constitutional Court of Ukraine, in particular, the requirements of Article 19.2 of the Constitution of Ukraine, according to which public authorities and their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine were grossly violated.
It should be noted that the principles of the activity of the Department of State Protection of Ukraine are regulated by the Law of Ukraine "On State Protection of Public Authorities of Ukraine and Officials" (hereinafter referred to as “Law”). This Law defines the main principle of state protection provided by UDO to be the principle of legality, and the purpose of state protection is to ensure the proper functioning of public authorities of Ukraine, security of officials and relevant objects.
The Law defines the tasks assigned to UDO: the implementation of state protection in relation to public authorities of Ukraine; ensuring the security of relevant officials at their place of stay both on the territory of Ukraine and abroad; ensuring the safety of family members of officials specified by this law who live with them or accompany them; prevention of illegal encroachment on officials and members of their families and objects in respect of whom state protection is carried out, their detection and termination; protection of objects defined by law; ensuring the safe operation of vehicles intended for officials specified by this law; participation in measures aimed at combating terrorism.
It is obvious that the above-mentioned actions of UDO employees had nothing to do with the legislatively defined principles and purpose of their activities, and were not aimed at fulfilling the tasks provided for them by law.
Instead, UDO employees resorted to illegal obstruction to the service activities of judges of the Constitutional Court of Ukraine, including my service activities as a judge and the Chairman of the Constitutional Court of Ukraine, as well as blocking the activities of the Constitutional Court of Ukraine as a public authority on the basis of an illegal "order" of the UDO leadership. Such actions include features of a number of crimes related to abuse of office, obstruction of the activities of a statesman, interference in the activities of a judicial body, seizure of buildings providing the activities of public authorities in order to interfere with the normal functioning of institutions.
Together with other judges of the Constitutional Court of Ukraine, I have submitted statements (notifications) about the commission of these crimes by UDO employees to the prosecutor's office.
The special danger of such actions of UDO employees is that there are no guarantees that for the sake of carrying out the "order" of their management, they will not in the same way block the activities of any higher body of state power of Ukraine, preventing their representatives from entering the office premises to perform their duties: People's Deputies of Ukraine - to the premises of the Verkhovna Rada of Ukraine; government officials - to the premises of the Сabinet of Ministers of Ukraine and ministries; members of the Central Election Commission - to those of the Central Election Commission; judges of the Supreme Court - to those of the Supreme Court; the President of Ukraine - to those of the Office of the President of Ukraine.
Current events indicate that there is a real risk that the blocking scenario currently being implemented against the Constitutional Court of Ukraine, its judges and the Chairman, may be applied to other state bodies and statesmen. This can lead to the usurpation of state power, illegal change of the constitutional order, the formation of a police state and the establishment of a dictatorship.
According to the Law, UDO is a state law enforcement body of special purpose, subordinated to the President of Ukraine and controlled by the Verkhovna Rada of Ukraine. The UDO Head and his deputies are appointed and dismissed by the President of Ukraine.
In view of the above and guided by Articles 1, 5, 6, 19, 102, 103, 106, 107, 147, 148, 149 and 153 of the Constitution of Ukraine, Articles 1, 2, 18, 24, 25 and 33 of the Law of Ukraine "On the Constitutional Court Of Ukraine ", Articles 1, 2, 3, 11 and 12 of the Law of Ukraine "On State Protection of Public Authorities of Ukraine and Officials", I address to you as the guarantor of observance of the Constitution of Ukraine, human and civil rights and freedoms, as well as the official to whom UDO is subordinated, and I ask to immediately apply measures to:
1. Unblock the work of the Constitutional Court of Ukraine and remove the obstacles unlawfully created by UDO staff for judges of the Constitutional Court of Ukraine to exercise their powers.
2. Bring to liability established by law (in particular, dismissal from office) the heads and other employees of UDO involved in blocking the work of the Constitutional Court of Ukraine and preventing judges and the Chairman of the Constitutional Court of Ukraine from exercising their official powers.
3. Ensure the implementation of the principle of legality in the activities of UDO in order to prevent the future use of this paramilitary organisation to achieve illegal goals.
Taking into account the extreme importance of this issue for ensuring the constitutional order and national security of Ukraine, I consider it necessary that a sitting of the National Security and Defense Council of Ukraine should be urgently convened by the President of Ukraine to consider this issue.
Chairman
of the Constitutional Court of Ukraine (signed) O.TUPYTSKYI
January 21, 2021
