The highest Ukrainian court overturns reform successes
The evidence that former President Yanukovych paid bribes worth millions to the Constitutional Court of Ukraine revealed how he instrumentalized the judiciary. In 2010 the highest judges enabled the ex-president, who now lives in Russia, to re-establish a strong presidential system. The decision was exemplary for the political dependence of the Ukrainian judiciary. Until 27 October 2020.
#Democracy and #Sovereignty call opponents into action
Initially, the 2014 “Revolution of Dignity” had ushered in nothing less than a new era: a new generation of e.g. journalists, activists and experts from civil society or business stirred up a closed leadership caste. At first, they only entered parliament because the old political parties wanted to give themselves a new image with the popularized young people. It was not uncommon for them to initiate important legislative projects in the face of resistance, with the help of civil society. Some of them assumed central positions in the administration, some in new structures based on reform laws.
At the same time, with expertise, but also repeatedly by linking financial aid to successful reforms, foreign partners supported Ukraine’s Euro-Atlantic integration, which has been anchored as a state goal in the constitution since January 2019.
In 2019 and 2020, the High Anti-Corruption Court and the National Agency for Corruption Prevention were finally operational, thus achieving what had been particularly difficult to enforce.
Counter-revolution of the judiciary
Then the counter-attacks increased, and again the Constitutional Court played a major role. Initially, the highest judges ruled that criminal prosecution laws for illegally acquired property and illegally obtained court sentences were unconstitutional. Further verdicts declared the appointment of the director of the National Anti-Corruption Bureau and central powers of the institution unconstitutional. Finally, on 27 October 2020, the highest court ruled that controlling the assets of public officials was unconstitutional and suspended the powers of the National Anti-Corruption Agency responsible for this.
The Constitutional Court has thus abolished institutionally anchored corruption prevention and effective corruption investigations. As non-transparent and illegitimate influence on important decisions of politics, administration or the judiciary are inherent challenges in Ukraine, the mandatory property register for state employees was a milestone.
President #Selenski initially wanted to dismiss the constitutional judges collectively by law, but this did not even make it to the first parliamentary reading. Now he is trying to save the anti-corruption institutions with legislative proposals.
Common good instead of vested interests
A majority of the population wants #Ukraine to be a liberal representative democracy. Selenski was also elected with an overwhelming majority in 2019 because he promised to fight systemic corruption effectively. The latter would be the completion of #Euromaidan: during the cold winter months people had held out in the capital’s Independence Square and other places in the country because #Europe stands for equal rights, equal rules and equal protection for all. The Ukrainians were moved by the idea of equal opportunities and fair access to the resources of their fundamentally rich country as well as sanctioning violations of rights, regardless of relationships.
The facade of the constitutional state
Yet change takes time. In the Ukrainian parliament there are still powerful lobbyists sitting alongside reform politicians. Comparatively few of the new elites have successfully organized themselves along party lines. Extremely expensive election campaigns and selective media access make this difficult.
Even among the 246 deputies of the new presidential party “Servant of the People” there are representatives of the people in the true sense of the word. But not so many that even a simple majority of 226 deputies could be reliably formed. Not to mention that a qualified majority of 300 could amend the constitution and turn against the all-powerful Constitutional Court.
Judicial self-administration as a theoretical concept
The constitutional judges are accountable only to themselves. And because the reform-minded are outnumbered, voting out is not an option. Some were investigated by the anti-corruption authorities for violation of the obligation to disclose assets, a blatant conflict of interest. Common to all cases is that they take time and the court can reject investigations as “unconstitutional.”
Yet the Constitutional Court is only the tip of the iceberg. A former judge describes the Ukrainian judiciary as a criminal syndicate.
A race against time
The actions of the highest court are nothing less than a systematic attempt to preserve the non-transparent and illegitimate influence of individual powerful people or power groups.
Meanwhile, a number of legislative projects are underway to restore the overturned laws and reform the Constitutional Court. But none of them would restore the recently established reform success that provided, unprecedented in Ukraine, material and institutional protection against abuse of office. It is even obvious that some draft laws seek to turn declarations of assets into an inefficient instrument that exists only in appearance. And no new law can reopen the cases closed on the basis of the Constitutional Court ruling of 27 October 2020.
Moreover, the highest judges are putting Ukraine in a catastrophic economic situation. For the affected institutions and rules were also the prerequisite for IMF loan tranches, on which in turn EU loans depend. By the end of the year, Ukraine will be short of around three billion euros – a considerable sum with a national budget of around 40 billion.
The Ukrainian reformers are in a weaker starting position
An insolvent Ukraine is all the more a pawn in the hands of oligarchs. This also increased the danger that state structures could fall back under Russian influence. The neighbour uses every gateway. And most Ukrainian oligarchs act “transactionally”, i.e. their own profit taking comes first. The state goal of European integration is an obstacle to non-transparent machinations.
But if Ukraine loses the fight against strategic corruption, i.e. the illegitimate use of millions of euros in funds for political goals, then this also weakens Europe. Whether the influence comes from #Russia or from Ukrainian oligarchs is secondary.
In the USA, the idea is already being considered that a Biden administration based on the Global Magnitsky Act could threaten the Ukrainian constitutional judges with travel bans and freezing of assets. The Ministry of Justice should re-examine its own possibilities for taking action against Ukrainian oligarchs.
Next Generation Ukraine
It is also in Europe’s interest that oligarchs should not be able to use those assets in Western countries that they unlawfully deprive their fellow citizens of. Equally so that the next generation of Ukrainians should see their opportunities in Ukraine. The European Bank for Reconstruction and Development #ebrdtr has shown that the quality of institutions and the will of citizens to leave their country are closely related. If there is a lack of trust in public institutions, people are much more likely to emigrate.
The state of Ukraine is our common interest
It is important for Europe that Ukraine, which is larger than France in terms of area and has a population of around 40 million, can freely develop into a functioning constitutional state. EU Europe, too, will only have a good future if democracy and the rule of law are established on its periphery on a permanent basis. Romano Prodi has already emphasized this when he thought about the #EU as a “real global player” in 2002 and coined the term “ring of friends” for the EU neighbours.