Constitutional crisis: Venice Commission releases its opinion

The Venice Commission pointed out serious shortcomings in the decision of the Constitutional Court of Ukraine of October 27, 2020 in the case of constitutional motion filed by 47 MPs on the constitutionality of certain provisions of the Law of Ukraine "On Prevention of Corruption."
“To sum up, Decision 13-r/2020 demonstrates that the style of reasoning and decision drafting of the Constitutional Court has serious shortcomings, falls short of standards of a clear reasoning in constitutional court proceedings, and requires improvement,” reads the urgent opinion on the Reform of the Constitutional Court of Ukraine issued pursuant to Article 14a of the Venice Commission’s Rules of Procedure.

In particular, as explained, the CCU’s decision contains a number of peculiarities, as concerns its reasoning, possible conflicts of interest, the extension of the scope of the legal provisions that were found unconstitutional, and the absence of a period of time for the parliamentary implementation of the decision.

Moreover, the Venice Commission experts called the reasoning of Decision 13-r/2020 “incomplete and not persuasive.”

The opinion also notes that the decision contains many references to international standards, but does not initiate a discussion in the context of Ukrainian national legislation.

“Following a general presentation of the principle of judicial independence, the main part of the reasoning seems to be missing,” the experts underscore.

Moreover, the Venice Commission considers that decision does not explain why it annuls legal provisions [on asset declarations] that apply to all civil servants while its reasons refer to judges only.

As reported, on October 27, the Constitutional Court recognized unconstitutional Article 366-1 of the Criminal Code on penalties for lies in asset declarations. In particular, the Constitutional Court declared unconstitutional the powers of the National Agency on Corruption Prevention (NACP) to verify officials' asset declarations, monitor the lifestyle of those who submit asset declarations, establish the timeliness of submission of asset declarations, as well as provisions on open access to declarations in the unified state register.

In this regard, President Volodymyr Zelensky summoned urgent meeting of the National Security and Defense Council to determine measures for the state's immediate response to new threats and challenges to national security and defense. The decision was made to reopen public access to the unified state register of asset declarations and ensure holding of special verifications by the NACP.