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23 February, 2012  ▪  Andriy Skumin

Court on Demand

The Constitutional Court is losing its reputation as an independent arbiter and is turning into yet another component of the presidential hierarchy

Legend has it, that the Constitutional Court is “an independent and objective body.” However, the president’s team risks undermining its social legitimacy and reduce the reputation of the only constitutional jurisdictional body in Ukraine to that of a rank and file element of the presidential hierarchy, as it gains tactical benefits by seeking the resolution of conflicts in the Constitutional Court. However, there is no guarantee that these risks are a fait accompli.

It makes absolutely no sense to revise the procedure for selecting members of the Constitutional Court or changing their powers, since the Constitutional Court has already lost its credibility. In a recent interview, Volodymyr Shapoval, Chairman of the Central Election Commission, stated that: “No matter what we do with the Constitutional Court, it will look like moving furniture around in a brothel. The actual problem lies in the issue of where to find people with a proper sense of justice and respect for legal culture, let alone integrity. Forgive me for saying this, but if they don’t receive daily instructions, some judges look like dogs, yearning for a stick to chase. Some of their decisions are drafted by inexperienced employees of the apparatus, while judges read them with mistakes and often don’t understand what the actual point is.”  

Quite a lot has been done to discredit the Constitutional Court over the past two years. The campaign began with a decision dated April 6, 2010 which deemed that the formation of “coalition of crossover MPs” was constitutional, even though it runs counter to the decision of the Constitutional Court from September 17, 2008. The judges’ excuse was that the previous decision had been made before the approval of the Law “On the Regulation of the Verkhovna Rada of Ukraine”. In a “Dissenting Opinion”, Mr. Stetsiuk, a Constitutional Court judge, said this excuse was “not convincing” since the Constitution gives a clear list of grounds on which MPs can establish parliamentary coalitions on the one hand, and the provisions of the Regulation cannot be considered as legally equal to those of the Constitution on the other.    

Indeed, the excuse was no more convincing than the voting on this decision; four judges were absent and three voted contra, which means that only 11 of 18 members of the Constitutional Court voted according to someone’s instruction. Clearly, plotting a quiet coup, such as the cancellation of the 2004 political reform, with such human resources would be a risky move, so a comprehensive reformatting of the Constitutional Court began. On July 12, 2010, Anatoliy Holovin was elected as its Chairman. A former KGB member since 1979 and subsequently, an employee of the SBU and Prosecutor General’s Office, Mr. Holovin is from Makiyivka, Donetsk Oblast.   

When Mr. Yanukovych’s team came to power, the same selection criteria were extended to the Constitutional Court as to other authorities, including Donetsk origin or Eastern Ukrainian roots and total loyalty to the Party of Regions. In September 2010, the Constitutional Court was purged of non-loyal members. On 2 September, Judge Vyacheslav Dzhunya’s powers were terminated. As a result of unprecedented pressure, Ivan Dombrovsky (as member of the Supreme Court in 2004, he supported the decision to recognize the falsification of the 2004 presidential election, thus depriving Viktor Yanukovych of the presidency), Yaroslav Machuzhak and Anatoliy Didkovsky (both supported positions which did not coincide with the views of the current president’s team, particularly the procedure for establishing parliamentary coalitions of individual MPs) resigned on 9 September. They were all replaced by the “right” candidates at voting held during the Judges’ Convention.

The latest decisions of the Constitutional Court signal that it is now completely loyal to the government. Of its 18 judges, only Viktor Shyshkin, Dmytro Lylak and Petro Stetsiuk can be considered unbiased. They have always had an independent view on the cases on which decisions have recently been made. The result was not late in coming -  the Constitutional Court can now pass the most absurd decisions. Experts have already begun to talk about the necessity of dissolving the current composition of the Constitutional Court, since it is incapable of taking adequate decisions because of its lack of professional and moral status. 

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