Dismissal of NABU director, start of election process, remuneration increase for judges and civil servants: decision by Constitutional Court and Central Election Commission

Today our digest is not about newly adopted acts by the Government, the President, or the Parliament, but instead we will focus on decisions made last week by the Constitutional Court and the Central Election Commission.

Decision-maker: the Constitutional Court of Ukraine.

Who is affected: Ukrainian citizens, civil servants, judges, high officials, the director of NABU (the National Anti-Corruption Bureau), NABU investigators, MPs, the President, and the Cabinet.

What does it change:

• Petro Poroshenko’s presidential decree on appointment of Artem Sytnyk as the director of NABU is declared void
• court’s decision does not affect the legitimacy of Sytnyk’s orders and actions as the NABU director or NABU’s activity under his lead.

What is right:

• the Constitutional Court continues to declare void presidential decrees in order to keep presidential decisions within powers granted by the Constitution. In June, the Court ruled unconstitutional for the president to appoint members of the National Energy and Utilities Regulatory Commission (NEURC)
• an exhaustive list of presidential powers is defined by the Constitution and ordinary laws cannot extend this list. Parliament’s decision to give the President an authority to appoint the NABU director was unconstitutional
• the Constitutional Court protected the work and continuing existence of NABU as an institution, because political impartiality is a core foundation of its effectiveness.

What is wrong:

• the Court repealed the decree on appointment of Artem Sytnyk as the NABU director, but not provisions in the law that had given unconstitutional power to the President
• a number of laws still grant the President powers that are not provisioned in the Constitution. In particular, the authority to appoint and dismiss members of contest committees for selection of SBI and NABU directors, the SBI director, members of state regulators, deputy heads of the Security Service of Ukraine and heads of subdivisions of the Central department of the SSU.

For more details on presidential influence on the SBI (State Bureau of Investigation), please read our article Why Zelensky “raided” the SBI and what can be done to amend the situation

Decision-maker: the Constitutional Court.

Who is affected: Ukrainian citizens, business, civil servants, judges, local government bodies, and the Cabinet.

What does it change:

• a number of provisions in the government regulations on lockdown restrictions are ruled unconstitutional, because the Cabinet has no power to restrict human rights and freedoms by its decisions or regulations. Such restrictions can be introduced only by laws, under emergency situation or under martial law
• the Court addressed the following provisions:
• restrictions on remuneration of civil servants, local government servants, and judges will be lifted, because they violate principle of legal security: it is unknown when the lockdown ends. In addition, the restriction on judges’ remuneration influences their independence, and the state cannot arbitrarily change the remuneration
• temporary prohibition (until January 1, 2021) for the State Treasury to recover funds from the government and local budgets under court rulings will be lifted too, because court rulings are mandatory and the state have to enforce them.

What is right: the Constitutional Court has fulfilled its duty to protect human rights and freedoms. If it is necessary to resort to a temporarily restriction of human rights in order to counter pandemics, wars, or other dangers to people’s lives, special legal regimes have to be declared.

What is wrong: although provisions of the new government regulation on imposing lockdown restrictions are unconstitutional the same way as were provisions of the old one, the Constitutional Court has not declared them void.

Decision-maker: the Central Election Commission.

Who is affected: Ukrainian citizens, voters, independent candidates, political parties, local government bodies, and the Cabinet.

What does it change: election process of local elections will start on September 5, 2020.

Why this is important: after the process starts, it will be impossible to announce local elections on the occupied territories.

What is right: the Constitution provisions that local elections have to be held this autumn, so the CEC has done its duty by timely announcing the start of the election process.

What is wrong: after local elections of 2020, civil-military administrations on the territories of Donetsk and Luhansk oblasts controlled by the Ukrainian Government were supposed to be dispersed. That will not happen in some territorial communities, because the Central Election Commission declared that it could not conduct elections there. Among others, there will be no election in Severodonetsk, an administrative center of Luhansk oblast.