Constitutional Court destroys crucial pillar of Ukraine’s anti-graft infrastructure
Ukraine is probably closer to losing its anti-corruption infrastructure, Western funding, and visa-free travel with Europe than at any time in recent years.
The nation’s anti-corruption infrastructure, created after the EuroMaidan Revolution that drove President Viktor Yanukovych from power in 2014, has come under unprecedented attack.
On Oct. 27, the Constitutional Court effectively destroyed Ukraine’s entire asset declaration system for state officials, eliminating a crucial pillar of the country’s anti-corruption system. The court did not respond to a request for comment.
“The Constitutional Court is returning Ukraine not even to 2013 but to 1991, when there was no anti-corruption legislation at all,” Oleksandr Novikov, head of the National Agency for Preventing Corruption (NAPC), said on Oct. 28 at a news briefing. “The court has canceled all anti-corruption tools developed since Ukraine became independent.”
The Anti-Corruption Action Center said that the Constitutional Court had “allowed officials to legalize their bribes for all years since the EuroMaidan Revolution and hide ill-gotten wealth.”
“Now officials will be able to buy villas, castles and other expensive things that don’t fit into their official income or legalize what they purchased before and will not be afraid of punishment because Constitutional Court judges gave them an indulgence.”
The court reacted to the accusations on Oct. 28 in a statement accusing the NAPC and the National Anti-Corruption Bureau of Ukraine (NABU) of unlawful interference in its work.
On Oct. 26, the Kyiv District Administrative Court also used a different Constitutional Court ruling to order the dismissal of Artem Sytnyk, head of the NABU. The Kyiv District Administrative Court is headed by Pavlo Vovk, a suspect in a high-profile NABU case.
The electronic declaration system and the NABU’s independence were preconditions for funding from the International Monetary Fund and visa-free travel with the European Union. This means that Ukrainian authorities’ assault on anti-corruption institutions may disrupt lending by the IMF and lead to suspension of visa-free travel.
In a statement, Zelensky’s office said that “there are still corrupt politicians who cannot tolerate the fact that their lifestyle, property and income can be under control” but “relevant tools in Ukrainian legislation will be kept or at least reinstated.”
However, even if the anti-corruption laws canceled by the Constitutional Court are reinstated, officials who committed crimes before their reinstatement will escape punishment. Moreover, the new laws are likely to be canceled again by the Constitutional Court, according to the Anti-Corruption Action Center.
The real solution would be a genuine judicial reform and replacing the Constitutional Court with people of integrity, according to DEJURE, a legal think-tank.
Commenting on the court order on Sytnyk’s dismissal, Zelensky’s office said that the NABU law contains an explicit list of grounds for firing the NABU’s chief and “this list can only be changed by the Verkhovna Rada and not by a court.”
Under Ukrainian law, the NAPC is tasked with running the asset declaration system. The Constitutional Court eliminated the declaration system by depriving the NAPC of most of its powers.
Specifically, the Constitutional Court ruled that public access to officials’ declarations and the NAPC’s authority to monitor and check officials’ declarations and lifestyle were unconstitutional. The court also abolished the NAPC’s authority to issue warnings and ask courts to consider administrative and criminal penalties for officials, as well as to determine conflicts of interest.
Moreover, the Constitutional Court ruling abolishes the concept of conflict of interest for top officials altogether, according to the Anti-Corruption Action Center.
The ruling also cancels the requirement for officials and agencies to provide information to the NAPC.
Additionally, the court canceled penalties for officials who lie in their asset declarations and abolished the requirement for officials to declare changes in their assets.
As a result of the ruling, the NAPC has closed the register of asset declarations, and the NABU said 110 corruption cases would be closed.
The Anti-Corruption Action Center and DEJURE, a legal think-tank, argued that the ruling lacked any meaningful legal grounds.
The ostensible grounds in the ruling is that the judiciary is independent, and any influence on it, including by the NAPC, is unconstitutional.
“The assertion has no legal grounds whatsoever,” Constitutional Court judge Serhiy Holovaty said in a dissenting opinion. He said that the NAPC’s powers cannot be considered “control over the judiciary” and that “the NAPC’s powers are not interference in judges’ professional activities and have a legitimate goal – preventing corruption.”
DEJURE argued that the Constitutional Court had entirely misconstrued the concept of the judiciary’s independence. Checks and balances mean that every branch of government checks and balances the others, not a judiciary branch that is completely out of control, according to DEJURE.
Without explaining its rationale, the court also claimed that criminal penalties for lying in asset declarations were excessive.
Conflict of interest
The NAPC said that Constitutional Court judges Iryna Zavhorodnya and Serhiy Holovaty had a conflict of interest but took part in the voting, which is banned by the law.
The agency said it had identified incorrect information on assets worth Hr 3.6 million in Holovaty’s asset declaration and incorrect information on assets worth Hr 1.4 million in Zavhorodnya’s declarations. The NABU has opened a criminal case against Zavhorodnya.
The NAPC also said that Constitutional Court judges Ihor Slidenko and Volodymyr Moisyk had failed to declare changes in their assets on time, which is a misdemeanor.
Meanwhile, Oleksandr Tupitsky, head of the Constitutional Court, acquired land in Russian-annexed Crimea in 2018 and did not show this in his asset declaration, according to an Oct. 28 report by the Schemes investigative show.
The Constitutional Court’s unprecedented moves are directly linked to the activities of the Kyiv District Administrative Court, which is headed by odious judge Vovk.
The NAPC has issued a warning to Oleksandr Tupitsky, head of the Constitutional Court, for failing to submit information on Constitutional Court judges’ conflicts of interest, including those in decisions on the NABU.
The Constitutional Court has disputed the NAPC’s warning for Tupitsky with Vovk’s Kyiv Administrative District Court. As a result, the court has banned the NAPC from requesting information from the Constitutional Court.
Wiretapped conversations published by the NABU in the Vovk case reveal the judge’s efforts to unlawfully influence the Constitutional Court and get control over it, according to the bureau.
In February 2019 the Constitutional Court canceled the law criminalizing illicit enrichment.
“Thanks to our common efforts, the decision to recognize the illicit enrichment (law) as unconstitutional has been born,” Vovk told one of his court’s judges after the ruling was issued. “That’s why you can buy anything you want.”
Vovk and his deputy Yevhen Ablov were personally interested in the Constitutional Court ruling because the NABU had investigated illicit enrichment cases against them. Both had to be closed after the ruling.
One of the court’s judges also told Vovk: “Chief, you effectively pressured Constitutional Court judges through lawmakers, and a case may be opened against you.”
The judges of the court also discussed getting their assets “out of their shadows” after the ruling and come up with excuses for unexplained wealth.
“I think you and Ablov can now declare the $1 million in income from stock that you had. Your mom gave it to you as a gift when you were a child,” Vovk joked.
“We already own two courts – the Constitutional Court and the Kyiv District Administrative Court,” Vovk also said in the tapes.
Constitutional coup d’etat
A source familiar with the matter told the Kyiv Post that Vovk had allegedly bribed the Constitutional Court to cancel the illicit enrichment law in February 2019. The source added that Tupitsky features in the Vovk tapes. The source, who spoke on condition of anonymity because it is an investigative secret, also said that Vovk was behind the scheme to replace Stanyslav Shevchuk with Tupitsky as chairman of the Constitutional Court in May 2019.
Vovk and Tupitsky have denied all accusations of wrongdoing.
Vovk’s court on Oct. 26 used a lawsuit as a pretext for ordering Sytnyk’s dismissal. The court upheld a lawsuit by Oleksandr Kareyev, a former NABU investigator, and reinstated him at the bureau.
The court ruled that Sytnyk’s authority expired on Aug. 28 as a result of a Constitutional Court ruling on the unconstitutionality of the 2015 decree on Sytnyk’s appointment. Therefore an acting head of the bureau should replace Sytnyk and reinstate Kareyev, the court added.
Mykhailo Zhernakov, head of legal think-tank DEJURE, ex-Constitutional Court Chairman Shevchuk and former top investigator Sergii Gorbatuk argue that the issue of Sytnyk’s dismissal was outside the Kyiv Administrative Court’s jurisdiction in this case.
Lawyers also cast doubt on the legality of the Constitutional Court ruling itself and on whether it can have any consequences from the legal standpoint.
The NABU and the Justice Ministry said on Oct. 27 that a court decision ordering Sytnyk’s dismissal cannot be implemented.
“Effectively, this is an attempt to fire by any means the head of the NABU as the guarantor of the organization’s independence, eliminate its ability to investigate top-level corruption and turn the agency into a politically dependent puppet body. As a result, investigations of multi-billion corruption in the Ukrainian government will be blocked,” the bureau said.
The administrative court’s decision appears to be part of a broader conflict between Vovk and Sytnyk. The Vovk case has faced unprecedented obstruction by Ukraine’s entire state system.
In August 2019, the Prosecutor General’s Office charged Vovk and other judges of his court with obstruction of justice. However, a court rejected a motion to extend the Vovk investigation, and prosecutors failed to send the case to trial on time.
In July 2020, the NABU resurrected the case and charged Vovk and other judges of his court with organized crime, usurpation of power and bribery.
In August judge Serhiy Vovk of the Pechersk Court, Pavlo Vovk’s namesake, ordered the case to be transferred from the NABU to another body. Anti-corruption activists interpreted this as an effort to kill the case, and the ruling is being appealed.
On Sept. 1, the High Council of Justice also unanimously refused to suspend Vovk and other judges implicated in his case.
In wiretapped conversations released by the NABU, Vovk mentioned the involvement of several members of the High Council of Justice in his alleged bargains with the council. They did not respond to requests for comment.
On Oct. 12, Judge Serhiy Vovk of the Pechersk Court also ordered the Prosecutor General’s Office to cancel the charges for Pavlo Vovk because they had been allegedly brought in violation of procedure. The ruling is also being appealed.
The High Anti-Corruption Court was scheduled to consider bail for Vovk and Ihor Pohribichenko, a judge at Vovk’s court, on Oct. 22. However, both judges failed to show up for the hearing, and it was postponed until Oct. 29.
Meanwhile, a petition on the site of the President’s Office for the liquidation of Vovk’s court collected the required 25,000 signatures on Oct. 26. Zelensky’s office responded to the petition with a vaguely worded statement proposing “consultations” with the High Council of Justice, a discredited and distrusted body, on resolving the issue of the Kyiv District Administrative Court.
A law enforcement source told the Kyiv Post that Prosecutor General Iryna Venediktova continues obstructing the Vovk case. The source spoke on condition of anonymity because he is not authorized to speak to the press.
Specifically, she has refused to extend the Vovk investigation, and it had to be extended by ex-Chief Anti-Corruption Prosecutor Nazar Kholodnytsky before he resigned in August, according to the source.
Venediktova has also refused to have Vovk brought to interrogation by force due to his refusal to come, conduct further searches in the Vovk case and wiretap him, the source said.
The Constitutional Court has recently dealt other major blows to Ukraine’s anti-corruption institutions.
On Aug. 28, the Constitutional Court ruled that then-President Petro Poroshenko’s 2015 decree to appoint Sytnyk as head of the NABU was unconstitutional. On Sept. 16, the Constitutional Court also ruled that some clauses of the law on the NABU were unconstitutional.
The rulings did not explicitly say that Sytnyk was no longer head of the NABU. However, there have been fears that Zelensky’s majority in the Verkhovna Rada would change the law in order to fire Sytnyk and appoint a Zelensky loyalist who would block cases against top incumbent officials.
The Constitutional Court helped corrupt officials by canceling the previous law criminalizing illicit enrichment in 2019. The Rada had to pass a new law on penalties for illicit enrichment later last year.
The Constitutional Court also partially canceled the judicial reforms of both ex-President Petro Poroshenko and Zelensky in February and March 2020 and entrenched judicial impunity by canceling the law criminalizing unlawful court rulings in June 2020.
The Constitutional Court is also considering abolishing the High Anti-Corruption Court and the Deposit Guarantee Fund, canceling the new law on illicit enrichment, and reinstating the ban on farmland sales.
On Sept. 17, the Verkhovna Rada also appointed controversial members to a commission to choose a new chief anti-corruption prosecutor. Anti-corruption activists say the members do not meet integrity standards and will likely choose a puppet who will obstruct graft cases.