Volodymyr Zelensky signed the decrees appointing two judges of the Constitutional Court from among the seven candidates proposed by the Selection Commission. They were the President of the National Academy of Legal Sciences Oleksandr Petryshyn and Oksana Hryshchuk, the daughter of a current member of the HCJ Viktor Hryshchuk, a professor at Ivan Franko Lviv National University Oksana Hryshchuk.
Thus, the President appointed Petryshyn and Hryshchuk to non-existent vacancies. Judges of the Constitutional Court Oleksandr Tupytsky and Oleksandr Kasminin still remain judges of the Constitutional Court, despite the fact that Zelensky revoked the decrees on their appointment, as such revocation is legally null and void.
Why are there no vacancies in the Constitutional Court under the President's quota?
Although society has serious doubts about the integrity of Tupytsky, Kasminin, as well as some other judges of the Constitutional Court, only the Constitutional Court itself can dismiss a judge of the Constitutional Court under the Constitution. Thus, the President's decision to revoke the decrees appointing Tupytsky and Kasminin is unconstitutional, and therefore Tupytsky and Kasminin are de-jure still judges of the Constitutional Court. Tupytsky's powers, by law, end in May 2022, and Kasminin's in September 2022.
"Very soon we may find ourselves in a situation that we have repeatedly warned about: when the Constitutional Court will have not 6 judges under the presidential quota, as provided by the Constitution, but as many as 8. In this situation, the constitutional crisis, which began more than a year ago, will be deepened, and the legitimacy of the Constitutional Court and its decisions will be undermined. For the nine-year term of the "newly appointed members", the legitimacy of the Constitutional Court and any of its decisions will be questionable. Despite the repeated opinions of the Venice Commission that the appointment of the CCU judges should be depoliticized, the exact opposite is happening.”
- said Mykhailo Zhernakov, the Chair of the Board of the DEJURE Foundation.
What is known about the appointed candidates?
Analysts of the DEJURE Foundation, the Anti-Corruption Action Center and Automaidan analyzed the candidates' property, lifestyle, career and possible political connections.
Oleksandr Petryshyn – the President of the National Academy of Legal Sciences of Ukraine Oleksandr Petryshyn, who "sanctified" Leonid Kuchma's right to run for a third term with an opinion of the Department of Theory of Law of the Yaroslav the Wise National Law Academy, which he headed in 2004. According to the opinion, President Kuchma's second term should be considered the first presidential term, so he has the right to run in the next presidential election again.
A member of the Selection Commission of the Constitutional Court and a candidate to the HCJ Dmytro Lukyanov voted for Petryshyn’s candidacy for the position of a judge of the Constitutional Court despite the declared conflict of interests. At the same time, Petryshyn heads the organizing committee of the Congress of Legal Scholars, thus he can influence the future appointment of Lukyanov as a member of the HCJ.
According to the declarations, Oleksandr Petryshyn could have intentionally underestimated the value of his car and has a lot of savings compared to income.
Oksana Hryshchuk is a professor at the Department of Theory and Philosophy of Law at the Ivan Franko National University of Lviv. Her father, Viktor Hryshchuk, is a current member of the unreformed HCJ. According to the declarations, Hryshchuk could have intentionally underestimated the value of her Lexus RX 350 and did not specify the value of two apartments of 71.4 and 43.3 square meters, as well as her husband's land plot of 1,200 square meters.
“We emphasize that the appointed candidates have not yet become judges of the Constitutional Court. In order to become judges, Petryshyn and Hryshchuk must take an oath at a meeting of the Constitutional Court. Thus, the judges of the Constitutional Court themselves have the opportunity to prevent the delegitimization of the institution. The coming weeks will show whether the Constitutional Court is able to oppose the President's unconstitutional decision."
- said Stepan Berko, Advocacy Manager of the DEJURE Foundation.
In March, President Zelensky issued a decree "revoking" the appointment of two judges of the Constitutional Court, Oleksandr Tupytsky and Oleksandr Kasminin. In August, the President launched a competition for the Constitutional Court under his quota. 18 candidates were admitted to the interview stage.
The public has repeatedly called on Volodymyr Zelensky not to appoint judges of the Constitutional Court to non-existent vacancies.