President Zelensky’s decree to repeal the appointment of Oleksandr Tupytsky and Oleksandr Kasminin is unconstitutional

Today, the text of Decree №124 / 2021 appeared on the official website of the President of Ukraine, by which the President repealed the decrees on the appointment of Oleksandr Tupytsky and Oleksandr Kasminin as judges of the Constitutional Court.

This Decree is unlawful because the President is trying to dismiss judges of the Constitutional Court, however, he does not have such powers. Therefore, the President decided to further deepen the crisis around the Constitutional Court.

Obviously, the President’s next step will be to “appoint” new loyal “judges” to replace the “dismissed.” Thus, the President decided to continue to destroy an important institution that should protect the rights of citizens and the Constitution from arbitrariness.

Instead of destroying the Constitutional Court, the President and his party should have introduced a draft law on a transparent procedure for appointing judges to the Constitutional Court.

The Constitutional Court is likely to refuse to recognize the Presidential Decree because it is unlawful, and judges Tupitsky and Kasminin will remain in office. If the Constitutional Court agrees with the decree, it can be stated with certainty that the Constitutional Court is now completely under the control of the President.

“The only legal way to dismiss a judge of the Constitutional Court is by a decision of the Permanent Ethics Commission of the Constitutional Court. Unfortunately, the Constitutional Court now lacks independent judges of high integrity who would care about its authority.

Currently, the only way to change the composition of the Constitutional Court and ensure its integrity is to introduce a transparent procedure of selection and appointment of the Constitutional Court judges, which is insisted on by public experts. Instead, the President is simply violating the Constitution to appoint loyal candidates to the Constitutional Court.”

–says Stepan Berko, Advocacy Manager at DEJURE Foundation

This case is by its nature reminiscent of the recent ruling of the Constitutional Court on the unconstitutionality of the decree appointing NABU Director Artem Sytnyk.