In their letter, Buquicchio and Mrcela warned Ukraine against violating the Constitution during the adoption of a presidential bill that proposes terminating the powers of all judges of the Constitutional Court of Ukraine (CCU).
"When deciding on the rapid recovery of the anti-corruption system, all the stakeholders should consider that it is not possible to provide it if the CCU's ruling remains unchanged," the agency's press service said.
Thus, in this situation it is necessary to consider the following three aspects:
1. In its ruling, the CCU violated the Constitution of Ukraine at least twice. The CCU interfered with the powers of the Parliament, noting that the establishment of criminal liability for declaring knowingly inaccurate information, as well as intentional failure to submit a declaration is an excessive punishment for committing these offenses. According to the Constitution of Ukraine, only the legislative branch of government can determine which action should be considered as a crime.
"This means that it is impossible to restore criminal liability for declaring inaccurate information and restore the equality of all branches of government by adopting a new law. Any law that would return criminal liability should automatically be considered unconstitutional, taking into account the ruling of the CCU," the report reads.
2. The fundamental principles of law prohibit being a judge in one's own cause.
"Some of the judges acted in their own interests while considering the case. Three judges – Volodymyr Moysyk, Ihor Slidenko, and Iryna Zavhorodnia – could be brought to administrative and criminal responsibility by the canceled legal provisions. They were aware of this fact, however, did not file an objection and canceled the mentioned provisions. On the day when the ruling was issued, the National Agency on Corruption Prevention (NACP) announced that the other judge – Serhii Holovatyi – did not declare the property worth UAH 3.6 million (~$126,500). He also was aware of this fact at the time of participation in the hearing," the report reads.
3. The CCU noted that NACP should not be responsible for monitoring judges' filling the declarations and conflicts of interest on the same grounds as it does with other public officials. This contradicts the previous conclusions of the Venice Commission on a similar issue.
President Volodymyr Zelensky tabled in the Verkhovna Rada the bill No. 4288 "On Restoration of Public Confidence in the Constitutional Judiciary," which proposes to terminate the powers of judges of the Constitutional Court, declare its ruling on asset declarations "null and void" and repeal the relevant amendments the law "On Corruption Prevention."
In addition, it is envisaged that the powers of the composition of the Constitutional Court will be terminated from the date of entry into force of this law.
The explanatory note to the document states that it was drafted to ensure compliance with the constitutional order in Ukraine and to prevent the usurpation of power by judges of the Constitutional Court.
On October 27, the Constitutional Court declared unconstitutional Article 366-1 of the Criminal Code of Ukraine that provides for punishment for inaccurate declaration of assets.
In particular, the article establishes liability in the form of a fine or imprisonment for the submission by subjects of declaration of deliberately inaccurate information in the asset declarations of persons authorized to perform the functions of the state or local government.
On October 28, the National Agency on Corruption Prevention (NACP) closed access to the unified state register of asset declarations in pursuance of a ruling of the Constitutional Court of Ukraine. The NACP stated that Constitutional Court judges had made this decision in their own interests, as the agency found signs of some of them declaring inaccurate information.
On October 29, President Volodymyr Zelensky convened an urgent closed-door meeting of the National Security and Defense Council to determine measures for the immediate proper response of the state to new threats and challenges to national security and defense.
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