Today’s guest post is from Kyrylo Korol, a judicial clerk at the High Anti-Corruption Court of Ukraine.
This past fall, between August and October, the Constitutional Court of Ukraine (CCU) ruled that several of Ukraine’s most important anticorruption laws and institutions are unconstitutional.
- The CCU first ruled unconstitutional the Decree of the President of Ukraine on the appointment of the director of the National Anti-Corruption Bureau of Ukraine (NABU), which is responsible for anticorruption investigations; the Court also invalidated the President’s powers to appoint NABU’s head, a decision that created uncertainty regarding the legitimacy of the current director of NABU. The Court reasoned that the because the power to appoint the NABU director was not included in the list of presidential powers specified in the Constitution, the President could not exercise this power. The CCU also ruled unconstitutional the external commission that evaluates NABU’s performance.
- In a subsequent case, the CCU declared unconstitutional the powers of the National Agency on Corruption Prevention (NACP) to check the public official’s declarations of assets. The Court reasoned that the NACP’s powers to review asset declarations extended to asset declarations submitted by judges, and that this arrangement would give an executive body impermissible control over the judiciary. The CCU further ruled that the law that imposes criminal liability for knowingly submitting a false asset declarations was unconstitutional, on the grounds that the penalties (which can include fines of up to $1,700, community service, or, imprisonment and disqualification from certain offices) was unconstitutionally disproportionate to the damage caused by the crime. These decisions led to the closure of hundreds of criminal cases for false declaration and the acquittals of public officials who had been found guilty of this crime. Going forward, the elimination of penalties for public officials who fail to file asset declarations, or who file false declarations, essentially nullifies the financial declaration system.
As a legal matter, the CCU’s decisions were dubious and poorly reasoned. For example, the Court invalidated the NACP’s role in verifying asset declarations on the grounds that, as applied to judges’ declarations, this would contravene the principle of judicial independence. But not only did the CCU fail to convincingly explain why this sort of limited review is a threat to judicial autonomy, the CCU used this alleged interference with judicial independence as a rationale for invalidating the entire law, thus canceling the NACP’s powers to monitor and verify all public officials’ assets, not only those of judges. For another glaring example of the Court’s shoddy legal reasoning, the court declared, in the context of ruling the criminal penalties for filing false asset declarations disproportionate, that there is no substantial damage from committing this crime, yet the Court provides no argument for that breathtaking assertion. On this same point, the CCU could offer no plausible rationale as to why filing a false tax declaration may be treated as a criminal act, but filing a false asset declaration cannot be.
These decisions have understandably triggered public outrage. Many suspect that the CCU, though supposedly independent, was acting to protect the interests of the established corrupt elites—a suspicious fueled by the fact that these cases were brought by the pro-Russian opposition and several allegedly oligarch-linked members of the Ukrainian parliament (the Verkhovna Rada). Public outrage over the rulings was intensified by the recent discovery that several of the CCU’s justices had been charged with filing false asset declarations prior to ruling on the unconstitutionality of asset declaration system. That is, by all appearances it seems that these justices voted to invalidate an anticorruption law that they themselves had been accused of breaking, while that investigation was ongoing.
So, as a consequence of these decisions, Ukraine faces a double crisis. First, there’s a crisis of confidence in the judiciary. The CCU was indeed established to protect the integrity of the Constitution. But if the citizens do not recognize the Court’s decisions as legitimate and fair, the Court does not live up to its purpose. Second, the disabling of several of Ukraine’s most important anticorruption laws and institutions only exacerbates Ukraine’s corruption crisis, which the current government has been struggling to get under control.
The Ukrainian government is under great pressure to address both of these problems. Unfortunately, neither has a quick fix:
- With respect to the apparent bias and illegitimacy of the CCU as currently constituted, several responses have been suggested. The President of Ukraine has submitted a draft law that annuls the powers of the CCU’s current panel. Some non-governmental organizations suggest putting pressure on current justices to resign. Other activists and scholars propose amending the law regulating the CCU to make it more difficult for the Court to issue similar decisions in the future. However, all these responses collide with principles and laws designed to safeguard judicial independence. Even if the Court loses its legitimacy as an institution, there are no obvious political or legislative ways to overturn its decisions or overhaul the Court.
- With respect to the damage these decisions have done to Ukraine’s anticorruption framework, there is no practical way to simply reverse the decisions, so the Ukrainian government’s only way forward is to amend or enact its laws in ways that restore at least some of their functions while conforming to the requirements of the CCU’s decisions. However, this might take a while, and there is no guarantee that new laws will not also be struck down by the Court.
It is no exaggeration, then, to say that Ukraine’s Constitutional Court has, with these poorly reasoned decisions, plunged the country into a double crisis. Responding effectively will require strong cooperation with international partners, media attention, and, of course, the will of all Ukrainians. How Ukraine responds to this situation may well determine whether Ukraine succeeds in protecting the legitimacy of its highest judicial institution and preserving its essential anticorruption reforms.