The Council of Europe’s constitutional expert body, the Venice Commission, has published on 9 December an urgent opinion about the effects of the recent Decision by the Ukrainian Constitutional Court on the anti-corruption legislation. The Venice Commission proposes solutions to the Verkhovna Rada on interpreting the Decision in light with the constitutional principles and international standards, while preserving public interests, such as fighting corruption in the judiciary.
In its opinion, the Venice Commission stresses that in a state governed by the rule of law, fighting corruption and respecting the Constitution and constitutional justice “go hand in hand”. Parliament and the executive must respect the role of the Constitutional Court as gatekeeper of the Constitution and need to implement its decisions. In turn, a Constitutional Court, for the sake of constitutional stability and legal certainty, must issue decisions that are generally consistent with its own case-law and within the parameters of its legal authority and jurisdiction.
The Venice Commission acknowledges that Decision no. 13-r/2020 of the Constitutional Court of Ukraine lacks clear reasoning, has no firm basis in international law, and was possibly tainted with a major procedural flaw – an unresolved question of a conflict of interest of some judges. “This is regrettable, not only because of the immediate negative effect of this decision on the fight against corruption in Ukraine, but also because such decisions undermine public trust in constitutional justice in general,” concludes the Council of Europe expert body.
Nonetheless, the constitutional role of the Constitutional Court must be respected, and the Verkhovna Rada should implement the decision by interpreting it in light of the constitutional foundations of the country and applicable international standards, preserving public interests such as the fight against corruption, including in the judiciary. In particular, it is important to keep the duty of public officials (including judges of ordinary courts and the Constitutional Court) to submit financial declarations, to have an efficient mechanism of verifying such declarations, and to provide in the law for appropriate sanctions, comprising detention for the most serious cases, for those public officials – including judges and prosecutors – who fail to submit financial declarations or knowingly submit false declarations.
This is the first urgent opinion prepared by the Commission following the request by the President Zelenskyy of 25 November 2020. The second urgent opinion will focus on the part of the President’s request related directly to the reform of the Constitutional Court and will be published in the nearest future, before the 11th of December.
