The UNBA statement concerning the decision of the Constitutional Court of Ukraine on the unconstitutionality of certain provisions of anti-corruption legislation

         On October 27, 2020, the Constitutional Court of Ukraine rendered the Decision № 13-p/2020 in case № 1-24 / 2020 (393/20) on the constitutional petition of 47 deputies of Ukraine dated August 4, 2020, on the constitutionality of certain provisions of the Law of Ukraine “On Prevention of Corruption” and the Criminal Code of Ukraine.

         To ensure the independence of the judiciary from the executive and legislative branches, the Constitutional Court of Ukraine declared the number of provisions of the Law of Ukraine “On Prevention of Corruption” as unconstitutional. Firstly, this refers to the right of the National Agency for Prevention of Corruption to exercise control functions that have a direct impact on the judiciary, on judges of the judiciary, and the Constitutional Court of Ukraine. Article 366-1 of the Criminal Code of Ukraine was also declared unconstitutional.

         This decision provoked a powerful wave of public criticism and speculations from individual experts, activists, representatives of political forces, higher state authorities, and international partners. At the same time, an immediate information attack began with a call to block the implementation of the decision of the Constitutional Court of Ukraine. That attack was accompanied by discreditation of both individual judges and the entire Constitutional Court as an institution.

         Further escalation of the situation around this decision may have far-reaching devastating consequences for the constitutional foundations of the Ukrainian State, first of all for the principles of the rule of law and the division of state power into legislative, executive, and judicial, each of which is independent. The very stability of the constitutional order and the effectiveness of the principles of the Constitution may be threatened.

         The solution to this informational and political crisis lies in the legal field - by the unconditional implementation of the Constitution of Ukraine.

         An alternative to this is the spread of legal nihilism, which will affect all branches of government and bring the activities of state institutions out of the legal field, depriving citizens of opportunities to protect their constitutional rights, freedoms, and legitimate interests. The fight against corruption is a sensitive topic for society, and corruption as a phenomenon itself is an obstacle to the development of many areas of the economy, the efficiency of public administration, the international image of the Ukrainian state. However, such a struggle cannot go beyond the Constitution, it cannot be higher than legal norms and it cannot be illegal.

         The Constitutional Court is a body of constitutional jurisdiction that ensures the supremacy of the Constitution of Ukraine, decides on the conformity of the laws of Ukraine and other normative acts with the Constitution of Ukraine, carries out the official interpretation of the Constitution of Ukraine, and has other powers prescribed in the Constitution.

         According to the Law of Ukraine "On the Constitutional Court of Ukraine", the Constitutional Court functions on the basis of the rule of law, principles of independence, collegiality, publicity, openness, full and comprehensive consideration of cases, validity and binding nature of its decisions and opinions.

         The independence and immunity of a judge of the Constitutional Court of Ukraine are guaranteed by the Constitution and laws of Ukraine. The relevant law, namely the Law of Ukraine "On the Constitutional Court of Ukraine", guarantees the independence of judges of Constitutional Court, and their professional immunities. In particular, Article 24 of the Law of Ukraine "On the Constitutional Court of Ukraine" prohibits influencing a judge of the Constitutional Court in any way. A judge of the Constitutional Court cannot be held liable for voting for or against the Court's decisions and conclusions.

         The right of deputies and other subjects to file a constitutional appeal is provided by law and cannot be criminalized or restricted for any political reasons, as it is a legal instrument of constitutional control over the legislation. The procedure of consideration of constitutional appeals is clearly regulated.

         The Constitution of Ukraine stipulates that decisions and conclusions adopted by the Constitutional Court of Ukraine are binding, final, and cannot be appealed. Laws and other acts shall be declared unconstitutional in full or in part by a decision of the Constitutional Court of Ukraine if they do not comply with the Constitution of Ukraine or if the procedure for their consideration, adoption, or entry into force established by the Constitution of Ukraine has been violated.

         Laws, other acts, or their separate provisions, which are declared unconstitutional, shall cease to be valid from the day of the decision of the Constitutional Court of Ukraine on their unconstitutionality, unless otherwise established by the decision itself, but not earlier than the day of its adoption.

         There is a liability provided for non-compliance with the decisions of the Constitutional Court of Ukraine, and there have been no precedents of opposition to the legal force of these decisions in the Ukrainian state yet.

         The Bar, as a constitutional institution operating for the provision of professional legal assistance, having the constitutional function of protection of the rights and freedoms of citizens, calls for the unconditional implementation of the Constitution by all authorities.

         The Constitution stipulates that state power in Ukraine is exercised on the basis of its division into legislative, executive, and judicial. Bodies of legislative, executive, and judicial power shall exercise their powers within the limits established by the Constitution of Ukraine and under the laws of Ukraine.

         The Constitution of Ukraine has the highest legal force in Ukraine. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and should comply with it. If the Constitutional Court declares certain provisions of the law unconstitutional in the manner prescribed by law, the decision of the Constitutional Court is binding and should be implemented in full. Its implementation cannot be the subject of any political compromises, even more - there cannot be a deliberate blockade.

         The Constitutional Court of Ukraine is not a legislative body and it is not empowered to establish new norms or change them. Article 8 of the Law of Ukraine “On the Constitutional Court of Ukraine” clearly establishes the limits of the Court's powers in rendering decisions. In particular, it is stated that the Constitutional Court considers the issue of compliance with the Constitution of Ukraine (constitutionality) of existing acts (their provisions).

         Therefore, unconstitutional provisions of any law that are recognized as such in any decision of the Constitutional Court shall be eliminated by the parliament immediately. All efforts of the subjects of legislative initiative, deputies of Ukraine, the legislature should be aimed at correcting the "dark spots" in national legislation and restoring the highest force of constitutional norms. This is a manifestation of respect for the Basic Law, observance of guarantees of the rights and freedoms of citizens, implementation of the principle of the rule of law.