The President of Ukraine issued Decree № 124/2021, which repealed the Decrees of the President of Ukraine on the appointment of Oleksandr Tupytsky dated May 14, 2013 and on the appointment of Oleksandr Kasminin dated September 17, 2013 as judges of the Constitutional Court of Ukraine. None of the provisions of the Articles of the Constitution of Ukraine listed in the Decree, as well as in the Law of Ukraine on the Constitutional Court of Ukraine or the Article 149-1 of the Constitution of Ukraine, provides for the possibility of termination of powers of a judge of the Constitutional Court of Ukraine or his / her dismissal by revoking the Presidential Decree.
Article 6 of the Constitution of Ukraine stipulates that public authorities “exercise their powers within the limits established by this Constitution and in accordance with the laws of Ukraine”, and Article 5 warns against usurpation of power. Given that the Constitution of Ukraine establishes an exclusive list of powers of the President, as well as an exclusive list of grounds for termination of powers of the judge of the Constitutional Court of Ukraine or his / her dismissal, the above-mentioned Presidential Decree is at least devoid of any legal basis.
In addition, the essence of the Decree also contradicts the foundations of any legal system. It is well known that an individual act of appointment is considered implemented from the moment of the appointment itself, the effect of such an act is exhausted, its revision becomes impossible. This approach has been repeatedly confirmed by the Constitutional Court of Ukraine. For example, the decision of 23.06.1997 № 2-zp states that such acts “do not establish general rules of conduct, but specific instructions addressed to an individual or legal entity are applied once and expire after implementation”.
Presidential Decree № 124/2021 does not even contain an attempt of proper legal justification. Assuming even that the President of Ukraine has the right to issue such decrees and that “judges of the Constitutional Court of Ukraine appointed by Viktor Yanukovych continuing to exercise their powers pose a threat to Ukraine’s independence and national security”, a logical question arises as to why the President has only now made such a decision, without eliminating the threat to national security for a long time.
Taking into account Venice Commission’s recent opinion on bill 4533 on the constitutional procedure, in which the Commission warmly welcomed the President’s withdrawal of the bill 4288 on the so-called dissolution of the Constitutional Court and called on Ukraine to make further systemic reforms based on law, new political decisions without any legal basis would only worsen the situation. It would be desirable to listen to the recommendations of the Venice Commission and to use political will to develop and ensure a new independent procedure for the appointment of judges of the Constitutional Court, which would eventually strengthen the Court and make it more efficient.