Political neutrality of Constitutional Court judges, court rulings on language law and Tupytskyi’s dismissal

Last week before the grand parliamentary holidays was full of resonance political events of which the most important is the dismissal of the “eternal” minister of internal affairs Arsen Avakov. However, other important decisions were also made that will influence the balance of powers and citizens’ lives. The Constitutional Court has put to an end the attempts to challenge the law on the state language, the Supreme Court repealed the decree by President Zelensky dismissing Oleksandr Tupytskyi as a judge of the Constitutional Court. Meanwhile, the Parliament has restored the requirement for judges of the Constitutional Court to be politically neutral.

 

President’s proposals on requirements for candidates for judges of the Constitutional Court approved (draft bill #4535)

Status: adopted with the proposals submitted by the President.

Who is affected: candidates for judges of the Constitutional Court.

Summary of the bill: MPs approved presidential veto on a provision that lifted the requirement of political neutrality of judges of the CCU and candidates for judges of the CCU.

What is right: presidential proposals will allow retaining proper requirements of political neutrality for judges of the CCU and will make it more difficult to appoint politically committed persons as judges.

What else: the presidential veto looks a bit strange since the vetoed provision was proposed by MPs from the presidential faction Servant of the People. According to the media, the changes were proposed to make it possible for the President to appoint Olha Sovhyria (an MP from Servant of the People faction) as a judge of the CCU.

Background information: this year in April MPs adopted the law on the development of the institute of starostas. For some reason, the draft bill also contained changes to the Law on the Constitutional Court. In particular, a provision that excluded the prohibition to appoint as judges of the CCU candidates who 1) are members of a party or occupy positions at a political party; 2) are members of any organizations that have a political agenda or take part in political life; 3) are elected officials at government bodies or local governments; 4) organize or provide funding for political campaigning or other political activities.

 

The CCU ruled the law on state language constitutional

Who is affected: Ukrainian citizens, businesses, government bodies, local governments, and media.

Summary of the decision: the CCU ruled that the law On ensuring the functioning of the Ukrainian language as the State language is compliant with the Constitution of Ukraine.

What is right: the decision has proved groundless the statements of pro-Russian politicians and parties that the law on language violates the rights of national minorities and Russian-speaking Ukrainians. From now on, the decision will help to counter political speculations on language issues and ensure that the language law is fully enforced. The law implements the constitutional provision that the state has to ensure the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory of Ukraine.

Background information: in June of 2019 MPs from the Opposition Block and several independents of the previous convocation of the Verkhovna Rada appealed to the Constitutional Court with a request to review the compliance of the language law with the Constitution. They claimed that the law allegedly violates the language rights of national minorities, in particular of the Russian minority, and was adopted by the Verkhovna Rada with several procedural violations.

Additional information: this is the first decision of the Constitutional Court since October 27, 2020, when the Court ruled unconstitutional provisions on electronic asset declarations and removed sanctions for failure to submit an asset declaration.

 

The Supreme Court repealed the presidential decree on dismissing Oleksandr Tupytskyi as a judge of the CCU

Who is affected: the President, the Constitutional Court of Ukraine, and Oleksandr Tupytskyi.

Summary of the decision: the decision rules unlawful and declares void the decree by President Volodymyr Zelensky dismissing the decree by President Viktor Yanukovych appointing Oleksandr Tupytskyi as a judge of the CCU. As a result, Tupytskyi is de facto reinstated as a judge of the CCU.

What is right: the decision is in line with the Constitution of Ukraine. On the one hand, the Constitution provides a comprehensive list of reasons for the dismissal of judges of the CCU, on the other hand, it grants no right to the President to dismiss judges of the CCU neither by repealing his own decrees appointing these judges nor in any other way. Thus, the presidential decree dismissing Oleksandr Tupytskyi and Oleksandr Kasmanin was unconstitutional by design.

What’s next: the decision can be challenged at the Grand Chamber of the Supreme Court but there is little chance that the presidential decree will be reinstated since it is overtly unconstitutional. In a similar case about the dismissal of Susanna Stanik as a judge of the CCU during the presidency of Victor Yushchenko courts’ decisions were always in favor of the plaintiff.

It is reasonable to expect that soon a similar decision will be issued about the dismissal of Oleksandr Kasminin.