Vacancies in Constitutional Court, new sanctions against smugglers, and Commissioner for Medical Affairs: decisions by President and Parliament

Today in our digest: Zelensky once more acted outside of his authority and his decisions are at risk of been ruled unconstitutional at any time, MPs submitted a draft bill to make the Minister of Healthcare unaccountable for his work performance.

Decision-maker: the President.

Who is affected: Ukrainian citizens, legal entities, MPs, the Cabinet, the President, and judges of the Constitutional Court.

Decree in a nutshell:

• creates a committee for the selection of candidates for positions of judges of the Constitutional Court on presidential quota
• Head of the Office of the President Andriy Yermak has to prepare a list of candidates that are to be included in the selection committee.

What is wrong:

• at present, the presidential quota in the Constitutional Court is fulfilled, so there are no vacant positions to announce a competition
• presidential decree dismissing the judges of the Constitutional Court Oleksandr Tupytskyi and Oleksandr Kasminin are at risk to be ruled unconstitutional. If by that time the competitions are launched, there will be four applicants: two “restored” judges and two judges selected by the committee. Such precedent will be a blow to the legitimacy of the Constitutional Court. Decree dismissing Tupytskyi and Kasminin has already been challenged in the Supreme Court and the Constitutional Court
• the President has no authority to dismiss judges of the Constitutional Court even if they are “a threat to national security”. They can be dismissed only under a special procedure defined in the Constitution
• since the constitutionality of new competitions is doubtful, it is unlikely that recognized professionals will apply. At the same time, the Head of the Office of the President Andriy Yermak appealed to G7 ambassadors to recommend some respectable specialists on the constitutional law for the selection committee.

Proper solution:

• if judges of the Constitutional Court Oleksandr Tupytskyi and Oleksandr Kasminin were really “a threat to national security”, in other words, abused their powers, committed treason or some other crime, they should have been dismissed under the procedure defined in the Constitution, i.e. after been found guilty of such crimes by a court
• if the President respects the rule of law and is sure of the constitutionality and legality of his decision, he should have waited for decisions by the Supreme Court and the Constitutional Court and only then, if the courts take his side, announce new competitions.

Decision-maker: the President.

Who is affected: banks, courts, law enforcement agencies, government bodies, Ukrainian citizens and legal entities under sanctions.

Decree in a nutshell: enacts the decision by the National Security and Defense Council on imposing sanctions against 13 citizens and 95 legal entities. In particular, the state blocks their assets, restricts trading operations, revokes licenses, etc.

What is wrong:

• sanctions are special restrictive measures that a country introduces in self-defense against external threats. Thus, they cannot be reasonably applied to Ukrainian citizens or legal entities. The President and the National Security and Defense Council are doing the court’s job and “punish criminals” without having the authority to do so
• the President and the National Security and Defense Council violate the presumption of innocence: a person is considered innocent and cannot be punished until proven guilty by due process of law and court’s decision
• the decree does not provide any information about grounds or reasons for the sanctions but instead just announces a list of people and legal entities and penalties applied to them.

Why this is dangerous: separation of powers is a cornerstone of democracy. The President cannot have the authority of the court, the Parliament, and the Cabinet. Decrees like this one are a threat to democracy and a dangerous sign of possible usurpation of power.

Background: at the beginning of April, the President imposed sanctions against the “top smugglers”: 10 Ukrainian citizens and 79 legal entities.

Decision-maker: the President.

Who is affected: courts, law enforcement agencies, the Cabinet, and citizens stripped of Ukrainian citizenship.

Alleged decision in a nutshell:

• several Ukrainian citizens under presidential sanctions for smuggling will be stripped of Ukrainian citizenship: Vadym Alperin (allegedly a citizen of Israel), Araik Amirhanian (allegedly a citizen of Armenia), and Oleksandr Yerimichuk (allegedly a citizen of Romania)
• the Cabinet will prepare the deportation procedure for these three former citizens of Ukraine.

What is wrong:

• presidential decree on disenfranchisement is not available in open access yet but since the Office of the President does not rebut the information published by media it is highly probable that the decree was actually signed
• if there are no court decisions that prove that the persons in question are indeed citizens of other states, presidential decrees can be challenged. The President has no authority at his own discretion and without proper grounds to disenfranchise Ukrainian citizens, that is just one more tool for pressuring “inconvenient” politicians, officials, and citizens
• the applied “punishment” is discriminating. According to the media, several famous Ukrainian politicians and top officials have foreign citizenship but the President has not disenfranchised them.

Cosponsors: Olha Vasylevska-Smahliuk, Oksana Dmytriieva (both from the Servant of the People faction), and Dmytro Razumkov, the Chairperson of the Verkhovna Rada.

Who is affected: patients, doctors, owners and managers of healthcare establishments, and the Cabinet.

Draft bill in a nutshell:

• the Commissioner for Medical Affairs will oversee the observance of healthcare rights, rights of patients and medical personnel, and mediate conflicts between patients and medical establishments
• the Commissioner will oversee the observance of the laws on healthcare, national medical standards, regulations on professional medical services, standards of medical services, medical materials and technologies, protocols for rehabilitation hospital care throughout Ukraine.

What is wrong: the Minister of Health will no longer be responsible for overseeing the observance of the laws on healthcare although it is the ministry’s responsibility to control the quality of medical services in hospitals, resolve conflicts between patients, doctors, and medical establishments. If the ministry fails at performing these functions, the minister should be held responsible.

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