2020–2021 Ukrainian Constitutional Crisis

There was a constitutional crisis in Ukraine from 27 October until 25 December 2020, with an aftermath until about May 2022. On 27 October 2020, decision No. 13-r/2020 of the Constitutional Court of Ukraine (CCU) invalidated much of Ukraine's 2014 anti-corruption reform as unconstitutional. The resulting situation made it almost impossible to effectively investigate and prosecute judges (including those on Constitutional Court itself) and other public officials for financial corruption (such as bribery). In response to the highly controversial ruling, the legislative and executive branches of the government of Ukraine, aided by international organisations such as the Venice Commission of the Council of Europe, made quick efforts to remedy the situation with the new Law No. 1079-IX of 15 December 2020, restoring the functioning of the National Agency on Corruption Prevention (NACP).

In the aftermath, there was a confrontation between the executive and judicial branch of the government, wherein the legislative branch played a conciliatory role. The Supreme Court decided on 14 July 2021 to reverse a decree by the president to suspend the head of the Constitutional Court. The Verkhovna Rada, the Parliament of Ukraine, attempted to resolve the tensions between the Court and the Presidency by establishing the Ethics Council on 5 August 2021 to reform the appointment process for judicial bodies such as the High Council of Justice with international guidance and oversight, but its functioning has been hindered by internal resistance to reform. The full-scale Russian invasion of Ukraine since 24 February 2022 complicated matters, while the declaration of martial law in Ukraine on the same day offered some means to take emergency measures for pressing legal issues. Tensions abated when the term of the CCU 's head justice expired in May 2022, and he illegally left the country.

Background

In July 2020, 49 People's Deputies of Ukraine (47 of these were members of the Opposition Platform — For Life political partyUkraine sours on President Volodymyr Zelenskiy as challenges mount for former comedian
NBC News (22 November 2020)COMMENT: The anatomy of Ukraine’s Constitutional Court crisis
bne IntelliNews (3 November 2020)) appealed to the Constitutional Court with a motion to recognize as unconstitutional the law on the High Anti-Corruption Court of Ukraine of 7 June 2018. On 16 September, the Constitutional Court ruled unconstitutional certain provisions of the law on the National Anti-Corruption Bureau of Ukraine (NABU). On 28 July, it declared unconstitutional the Presidential decree of 16 April 2015 on the appointment of Artem Sytnyk as NABU Director. On 27 October the court, on the motion of 47 legislators, recognized the provisions of the laws on e-declarations' vetting as unconstitutional and stripped the relevant watchdog, the National Agency on Corruption Prevention (NACP) of powers to vet declarations and identify conflicts of interest. This decision deprived the NACP of access to state registers required for vetting declarations of candidates for government offices, thus blocking the appointment of officials, including those elected in the October 2020 Ukrainian local elections. The NABU responded by claiming that as a result of the court ruling, all criminal cases probing inaccurate asset declaration would be closed, while officials exposed on abuse would avoid responsibility. On 28 October, the NACP shut down public access to the , which was restored overnight the following day in line with the Shmyhal Government decision following public outrage.

Constitutional crisis

October 2020

Decision No. 13-r/2020 of 27 October 2020 ruling of the Constitutional Court of Ukraine ruled invalidated much of Ukraine's 2014 anti-corruption reform as unconstitutional. The Court thereby reversed prior precedent, and threw constitutional law in Ukraine into chaos. It was regarded as a blow to anti-corruption reform in Ukraine. The CCU justices were split 11–4 in favour of the decision, with Justices Holovaty, , , and dissenting, and arguing that the majority opinion lacked a proper justification.

On 29 October, President Zelenskyy submitted to the Ukrainian parliament a draft law, offering an early termination of powers of the Constitutional Court's entire composition.Zelensky asks Rada to sack all Constitutional Court judges following controversial ruling
UNIAN (30 October 2020) Lawmakers rejected this bill, including several members of Zelenskyy's ruling Servant of the People political party. Some accused him of a power grab. On 27 January 2021 Zelenskyy withdrew the bill.

November 2020

Following the decision, President Volodymyr Zelenskyy warned that if parliament did not restore these anti-corruption laws, foreign aid, loans and a visa-free travel to the European Union would be at risk. Governor Kyrylo Shevchenko of the National Bank of Ukraine reported that Ukraine would not receive the scheduled $700 million IMF load before the end of 2020 because of the issue. IMF assessment teams had not visited Ukraine for eight months, which was necessary for further IMF loan tranches to be released. The European Union (EU) issued a statement that the court's decision called "into question a number of international commitments which Ukraine assumed in relation to its international partners, including the EU."

December 2020

On 4 December 2020, the Ukrainian parliament restored anti-corruption legislation shut down by the court decision, when it reauthorized criminal penalties for officials who provide false information about their incomes.Ukraine's parliament defies court ruling and restores anti-corruption legislation
Euronews (4 December 2020)

In December 2020, the Constitutional Court of Ukraine was unable to carry out its usual functions because of some justices boycotting the court. On 29 December 2020 President Zelenskyy suspended the courts chairperson Oleksandr Tupytskyi for two months in an effort to end the crisis.Zelensky suspends Constitutional Court chair for two months
UNIAN (29 December 2020) The following day the Constitutional Court stated it considered the President's decree "legally insignificant" and they did not plan to implement it.Tupytsky's removal: Zelensky's decree was called insignificant by the Constitutional Court and will not be implemented
BBC News (30 December 2020) The Prosecutor General's office had also asked President Zelenskyy to suspend Tupytskyi for two months after he failed to show up for police questioning. Tupytskyi is under investigation of alleged attempts to influence a witness through bribery and providing false testimony three times in a case against a company that produces transport equipment in 2018 and 2019, when he served as deputy chairman of the Constitutional Court.Ukraine: Top judge investigated for witness tampering
Deutsche Welle (28 December 2020)

Aftermath

2021

On 8 February 2021, the dismissed a lawsuit requested by Tupytskyi against the State Security Administration for not allowing him to work in the Constitutional Court.The OASK denied Tupytsky a lawsuit against UDO
Ukrayinska Pravda (8 February 2021) The court noted that Tupytskyi had not provided evidence confirming the danger to "his rights and interests."

On 26 February 2021, President Zelenskyy signed a decree that suspended chairperson Tupytskyi for another month.Zelensky suspended the head of the Constitutional Court for another month
Ukrayinska Pravda (26 February 2021)

On 27 March 2021, Zelenskyy annulled the decree of former President Viktor Yanukovych of May 2013, appointing Oleksandr Tupytskyi and judges of the Constitutional Court of Ukraine. According to Zelenskyy, their tenure did "pose a threat to state independence and national security of Ukraine, which violates the Constitution of Ukraine, human and civil rights and freedoms."Zelensky annuls Yanukovych's decree appointing Tupytsky as judge of Constitutional Court
UNIAN (27 March 2021)Zelensky cancels decrees on appointment of Tupytsky, Kasminin as Constitutional Court judges
Ukrinform