Regarding the Decree of the President of Ukraine “On removal of the judge of the Constitutional Court of Ukraine from office” of December 29, 2020 No. 607/2020

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Regarding the Decree of the President of Ukraine
“On removal of the judge of the Constitutional Court of Ukraine from office” of December 29, 2020 No. 607/2020

The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it (Article 8.2 of the Constitution of Ukraine).

Article 19.2 of the Constitution of Ukraine stipulates that bodies of state power and local self-government, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.

The status of a judge of the Constitutional Court of Ukraine is determined by the Constitution of Ukraine and the Law of Ukraine “On the Constitutional Court of Ukraine” (Article 18.1 of the Law of Ukraine “On the Constitutional Court of Ukraine”).

Article 1 of the Code of Criminal Procedure of Ukraine establishes that the criminal procedure legislation of Ukraine consists of the relevant provisions of the Constitution of Ukraine, international treaties, the binding nature of which has been approved by the Verkhovna Rada of Ukraine, this Code and other laws of Ukraine.

 On December 29, 2020, the President of Ukraine issued a Decree “On removal of the judge of the Constitutional Court of Ukraine from office” No. 607/2020 which reads as follows: “Pursuant to Article 154.3 of the Code of Criminal Procedure of Ukraine, I decree: To remove Tupytskyi Oleksandr Mykolaiovych from office of a judge of the Constitutional Court of Ukraine for a period of two months”.

The respective Decree was issued by the President of Ukraine not on the basis of the Constitution of Ukraine and does not comply with it. The powers of the President of Ukraine are determined exclusively by the Basic Law of Ukraine (paragraph 31 of Article 106.1 of the Constitution of Ukraine; Decisions of the Constitutional Court of Ukraine of 25 December 2003 No. 22-rp/2003, of 7 April 2004 No. 9-rp/2004, of 16 May 2007 No. 1-rp/2007, of July 8, 2008 No. 14-rp/2008, of October 2, 2008 No. 19-rp/2008, of October 8, 2008 No. 21-rp/2008, of July 7, 2009 No. 17-rp/2009, of September 15, 2009 No. 21-rp/2009, of December 17, 2009 No. 32-rp/2009, of June 10, 2010 No. 16-rp/2010, of June 13, 2019 No. 5-r/2019, of August 28, 2020 No. 9-r/2020, of September 16, 2020 No. 11-r/2020.

Instead, the Constitution of Ukraine does not grant the President of Ukraine the right “to remove a judge of the Constitutional Court of Ukraine from office”. Moreover, the Constitution of Ukraine does not provide for the possibility of removing a judge of the Constitutional Court of Ukraine from office. Unlike judges of courts of general jurisdiction, in respect of whom a decision on temporary suspension from administration of justice may be delivered (paragraph 6 of Article 131.1 of the Constitution of Ukraine), the Constitution of Ukraine establishes only the grounds and procedure for dismissal of a judge of the Constitutional Court of Ukraine from office, termination of his/her powers, his/her detention or keeping under custody or under arrest (Articles 149, 149¹ of the Constitution of Ukraine).

By issuing the Decree No. 607/2020 of December 29, 2020, the President of Ukraine went beyond his constitutional powers and applied to a judge of the Constitutional Court of Ukraine a measure to ensure criminal proceedings, which according to the Constitution and laws of Ukraine cannot be applied to judges of the Constitutional Court of Ukraine.

The mentioned Decree of the President of Ukraine contains a reference to Article 154.3 of the Code of Criminal Procedure of Ukraine as a ground for removal of the judge of the Constitutional Court of Ukraine O. Tupytskyi from his office. However, the provisions of this article do not cover the judges of the Constitutional Court of Ukraine and are inapplicable to them.

 The Constitutional Court of Ukraine is composed of eighteen judges of the Constitutional Court of Ukraine. The President of Ukraine, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine each appoint six judges of the Constitutional Court of Ukraine respectively (Article 148.1 and 148.2 of the Constitution of Ukraine).

According to the Constitution of Ukraine, all judges of the Constitutional Court of Ukraine have a single legal status, which provides for the same guarantees of independence and inviolability for all judges of the Constitutional Court of Ukraine. In particular, this applies to the grounds and procedure for acquiring powers, dismissal from office, termination of powers, personal security measures, etc. (Articles 148, 149, and 149¹ of the Constitution of Ukraine). They are the same for all judges of the Constitutional Court of Ukraine, regardless of the subjects of their appointment.

Granting one of these appointing subjects (in this case, the President of Ukraine) the right “to remove a judge of the Constitutional Court of Ukraine from office” and the absence of such a right for the two other appointing subjects (the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine) would mean gross violation of the constitutional and legal status, which is uniform for all judges of the Constitutional Court of Ukraine. At the same time, this approach was used in the issuance of the Decree of the President of Ukraine No. 607/2020 of December 29, 2020, according to which such measure of criminal proceedings as “removal from office” may be applied toward six judges of the Constitutional Court of Ukraine and for the other twelve judges - no.

The fact that the provisions of Article 154.3 of the Criminal Procedure Code of Ukraine do not cover the judges of the Constitutional Court of Ukraine and cannot be applied to them is also confirmed by the procedure for removing judges of courts of general jurisdiction, who formally fall under the term “persons appointed by the President of Ukraine”, from administration of justice.

Pursuant to Article 128.1 of the Constitution of Ukraine, the appointment of a judge is exercised by the President of Ukraine.Yet the President of Ukraine has nothing to do with the removal of a judge from the administration of justice. Temporary removal of a judge from the administration of justice is not covered by the concept of “removal from office” and is a separate type of measures to ensure criminal proceedings (paragraph 4¹ of Article 131.2 of the Criminal Procedure Code of Ukraine). The Criminal Procedure Code of Ukraine establishes a special subject and a special procedure for temporary suspension of a judge from the administration of justice in connection with criminal prosecution - such a decision is delivered by the High Council of Justice on the basis of a substantiated submission of the Prosecutor General or his deputy (Article 155¹).

Thus, by issuing Decree No. 607/2020 of December 29, 2020, the President of Ukraine went beyond his constitutional powers and violated the provisions of Articles 1, 6, 8, 19, 106, 147, 149, and 153 of the Constitution of Ukraine.

Therefore, from the constitutional and legal point of view, the Decree of the President of Ukraine “On removal of the judge of the Constitutional Court of Ukraine from office” of December 29, 2020 No. 607/2020 is legally null and void because it was issued by the President of Ukraine in excess of his constitutional powers, contradicts the constitutional principles of the organisation of state power in Ukraine, the constitutional principles of the Constitutional Court of Ukraine, encroaches on the constitutional and legal status of a judge of the Constitutional Court of Ukraine. The issuance of this Decree by the President of Ukraine is in fact an unlawful interference in the activities of the judge of the Constitutional Court of Ukraine, an obstacle to the performance of his official duties, which entails legal liability under the law.

 The Criminal Code of Ukraine provides for criminal liability for interfering in the activities of a statesman (Article 344) and interfering in the activities of judicial bodies (Article 376).

 Article 60 of the Constitution of Ukraine stipulates that no one is obliged to execute rulings or orders that are manifestly criminal. Legal liability arises for the issuance or execution of a manifestly criminal ruling or order.

Based on the above, Judge of the Constitutional Court of Ukraine O. Tupytskyi is obliged to continue to perform his official duties in accordance with the Constitution of Ukraine and the Law of Ukraine “On the Constitutional Court of Ukraine”, and the President of Ukraine is obliged to immediately repeal his Decree No. 607/2020 of December 29, 2020.

Developed with the support of OSCE Project Co-ordinator in Ukraine
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