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The Venice Commission delivers its verdict on the constitutional crisis
This week, the Venice Commission released its findings on the constitutional crisis in Ukraine.
They did so at the request of President Volodymyr Zelenskyy, who addressed the experts of the Venice Commission with a request to assess the situation caused by the decision of the Constitutional Court of October 27, 2020, which eliminated criminal responsibility for inaccurate declaration, and the NAPK was deprived of most of its powers.
In response, the president introduced a bill according to which all the judges of the Constitutional Court would be removed by decision of the Rada. But since this openly contradicted the Constitution, the idea met with resistance even within the “Servants of the People.” And then the president even asked the deputies not to consider this bill until the verdict of the Venice Commission.
After receiving it, all parties to the conflict (including the president) declared they were satisfied with it. But in fact, the commission buried presidential initiatives to disperse the Constitutional Court and parliamentary ideas to block its work by increasing the quorum.
Now the main fight will take place around two documents. The law already passed by the Rada on the return of responsibility for inaccurate declaration (the president cannot sign it) and the bill on the return of the powers of the NAPK.
The “Country” understood the details.
The defeat of Zelensky’s idea
The Venice Commission shattered President Zelensky’s intentions to disperse the Constitutional Court.
“Political bodies should not be allowed to override the powers of the individual judges of the Constitutional Court (with the exception of impeachment procedures, if so provided by the Constitution) or of the entire composition of the Court as a whole. Nor does Parliament must block the activities of the Constitutional Court through financial pressure, procedural obstacles or similar efforts. This would constitute a serious violation of the rule of law and of the constitutional principles of separation of powers and independence of the judiciary … Cancellation of the Court’s decision Constitutional and the removal of all its judges would be unconstitutional and contrary to the rule of law. The Constitutional Court cannot be “sanctioned” for its decisions, but its work can be improved “, – he said at the conclusion of the commission.
The retired judge of the Constitutional Court, the people’s deputy Vasily Nimchenko, believes that after the decision of the Venice Commission, any talk about the dissolution of the Constitutional Court should be stopped.
“The Venice Commission told the president and parliament, stop putting pressure on the court, its decisions are binding on all organs and they cannot refuse to execute them. And the fact that Zelensky tried to destroy the Constitutional Court could end up accusing the Zelensky himself to usurp power, “he added. Nimchenko.
Several deputies of the Servant of the People told Strana that after the Venetian’s findings, the issue of Zelensky’s bill on the removal of Constitutional Court judges will no longer be submitted to the Rada for consideration. As well as other bills to block the work of the court.
In addition, the commission indicated its vision of how the legislation on the Constitutional Court can be changed. It appears to be based on this and will now settle the bills.
VK’s recommendations refer to the following points:
– limit the problems of the presentations at the CCU to specific issues;
– oblige the UCC to indicate the specific reasons for each legislative provision that it considers unconstitutional;
– the disciplinary responsibility of the judges should be regulated in the law of the UCC;
– define in detail the term “conflict of interest”;
– reduce the quorum for decision-making in cases where the quorum is insufficient due to the challenge of the judges;
– create a body for the control of candidates for the election of judges of the Constitutional Court.
Furthermore, most importantly, the Commission recommended filling the three existing vacancies in the Rada and the Congress of Judges only after the creation of this body.
“The creation of such a system is an urgent matter to fill these vacancies,” they said in the conclusion.
But changing the legislation on the CCU is a separate issue, which MPs are unlikely to address in the near future.
So far, only one working group has been created to draft amendments to the legislation.
There are two more pressing issues on the agenda now.
I veto or I don’t veto
The president has not yet signed the law passed by the Rada on liability return for inaccurate statements.
This responsibility returned in a softer form than before the decision of the Constitutional Court.
The new law, which was adopted by the Rada, proposes to set a threshold of 9 million hryvnia (the difference between actual and declared funds), for exceeding which officials can face liability in the form of restriction of freedom. This is not a prison sentence (as it was before), but a correctional colony where those guilty of minor crimes are kept, with their participation in the work.
For such “softness,” the law has already come under fire from a host of grant activists close to Western embassies. According to unofficial information, the West also expressed its discontent.
And today the Office of the President confirmed to Strana that the President’s attitude toward the law is ambiguous.
“First, an official response must come from the Venice Commission. After that, the final strategy on the CCU will be formed. Including the attitude towards the law. In my opinion, (in its current form) it significantly worsens the original intention of hard to fight the “bad statements” of officials, – said the adviser to “Strana” to the head of the Office Mikhail Podolyak.
At the same time, government sources assure that the allocation of the first tranche of macro-financial aid by the European Union took place just after the president promised not to sign the law.
In other words, the obligations are quite serious.
The Venice Commission’s findings formally allow Zelensky to demand that the Rada amend the law in the direction of greater accountability.
So, VK proposes to restore the provisions of this article, making the punishment more flexible so that deprivation of freedom It came, from a certain threshold of real income higher than those specified in the return and only for those who deliberately submitted false information. In other words, the commission’s findings refer specifically to imprisonment, and not to restriction, to which the president can appeal if he does not want to sign the law passed by the Rada.
“Until now, everything seemed as if the passed law was the greatest possible compromise of all that the deputies could have done by voting in the Rada. But if the IMF joins the pressure, or the ambassadors bluntly say that we don’t need restrictions of freedom, but prison sentences “. , you can return the law to the Rada with its amendments, “believes political analyst Ruslan Bortnik.
The fate of the NAPK and the judicial system
A separate story: with the return of the NAPC powers to verify the statements. A relevant bill has already been submitted to the Rada, which they only wanted to vote on next week.
However, the VK’s conclusions introduce new nuances.
Therefore, the Venice Commission believes that it is necessary to develop a protection mechanism that does not allow the NACC to pressure the judges. For example, in the form of complaints or periodic reports from the NACC to the Highly Qualified Judges Commission (HQCJ). It is true that this last organ now does not work. And international structures have long demanded that it be re-formed to fill it with its representatives, thus gaining control over Ukrainian judges.
The peculiarities of checking the statements of the judges are, in principle, included in two bills on the NAPC, which on Thursday even approved the competent commission.
According to the first one (No. 4470), all electronic statements of officials are verified only by NAPK. At the same time, the document proposes to introduce a complaint mechanism for a judge if he believes that in the process of verification of the statement he is under pressure. In this case, the judge can file a complaint with the Superior Council of Justice and the judge of the Constitutional Court, with the Constitutional Court itself.
The second bill (# 4471) sets out the details of the protocol in relation to judges. The primary method of delivery for such protocols is assumed to be by mail. At the same time, judges have the opportunity, at their request, to personally give explanations on the essence of the protocol or to do so in the presence of an inspector of the Superior Council of Justice or the head of the Constitutional Court (in the case of a judge of this court).
It is true that the fate of these bills is still not very clear. Also, it is not clear even if they are voted on and the president signs. Since then, the Constitutional Court may once again recognize them as unconstitutional. According to one version, the main motive of the Constitutional Court judges for issuing a verdict on the statements was precisely the desire to protect themselves and their colleagues in other courts from pressure from the NAPC.
In general, this is just one of the episodes of the global struggle for control of the judicial system, which is now unfolding in Ukraine.
“The fight continues for the judicial system. On the one hand, the judicial elite is trying with all their might to preserve a certain sovereignty of the judicial system. On the other hand, there are Western partners who want to control the judicial body and tried to influence the judges. through the electronic filing system through his protégés in Ukraine. We see the balance tipping first in the direction of the judges, then in the direction of the Western lobby. And so far it is difficult to predict who will win, “Bortnik said.
“Ukraine will resist the West’s attempt to take control of the entire judicial system for a long time. The curators will press through the IMF, through various clubs, such as the G7 Ambassadors Club, and this crisis will drag on for several more months. But I don’t think it is entirely possible to make concessions to the West, perhaps some kind of cosmetic compromise. Giving the entire judicial vertical to Washington is to sign in advance that there are 2 zones in Ukraine occupied by external forces: 4% are occupied by Russia and 96% will be occupied by the States “. – says the political scientist Konstantin Bondarenko.
