On December 9, the Venice Commission and the Directorate General of Human Rights and Rule of Law published their Urgent Joint Opinion on the constitutional situation in Ukraine. This is a crisis caused by the decision of the Constitutional Court to repeal most of the anti-corruption reform.
What are the main conclusions?
- The Venice Commission acknowledges that the CCU’s decision lacks clear reasoning, has no firm basis in international law, and may be tainted by the unresolved question of conflict of interest of some judges. The CCU must make decisions consistent with its own case law, within its authority and jurisdiction;
- However, the parliament (and the government) must respect the role of the Constitutional Court and implement its decision, interpreting it in the light of international standards, preserving the public interest such as the fight against corruption, including in the judiciary;
- It is important to keep the duty of public officials (including judges of ordinary courts and of the CCU) to file declarations, to have an efficient mechanism for verifying such declarations, as well as appropriate sanctions for those public officials who knowingly submit false declarations or fail to submit them.
Against this background, the Venice Commission invites the Verkhovna Rada to consider the following solutions:
- Criminal liability for the submission of knowingly false declaration/failure to submit declaration should be restored, but the law may specify in greater detail the different sanctions corresponding to the degree of criminal responsibility, reserving, for example, the sanction of imprisonment for cases above a certain threshold and for perpetrators acting with deliberate intent;
- All NACP powers in respect of public officials other than judges may be restored as they are unaffected by the reasoning used by the Constitutional Court in its judgment;
- As regards the powers of the NACP vis-à-vis judges, additional safeguards may be introduced in the law to protect them from potential abuses; with public control over the Agency’s activities connected with declarations submitted by judges strengthened. For example, through the mechanism of filing complaints to the appointed court or regular reports of the NACP to the re-established High Qualifications Commission of Judges, if it consists of professional, honest and independent members;
- The NACP’s independence in practice and public oversight of its activities should be improved as per GRECO recommendations.
“Most of what the Venice Commission’s conclusions say was well within the TI Ukraine paradigm. For example, our organization has repeatedly insisted that imprisonment should be one of the sanctions above a certain threshold of abuse. Judges must declare their assets, and they must be verified with certain balanced guarantees of their independence. I want to believe that the parliament will take into account these conclusions, and in the near future will support the draft laws of the working group, as well as increase criminal liability for lying in the declaration,” said TI Ukraine’s Executive Director Andrii Borovyk.
Draft laws 4470 and 4471 submitted to the parliament by members of the working group to restore NACP powers and establish special safeguards concerning judges of ordinary courts and the Constitutional Court are overall consistent with the published joint opinion.
Transparency International Ukraine has analyzed them and supports their adoption provisionally and in general, in order to unblock the work of the paralyzed NACP as soon as possible.