And now, more than three years later, it is a surprise! As far as is known, the ex-minister of justice and several former officials of the Ministry of Justice have been served with charges these days. Upon unthinkable efforts, investigators arrived at a shocking conclusion: the usurpation of power (this term means that the version of the 1996 Constitution, i.e. a presidential and parliamentary system of government is back) happened… through the publication of the text of the Constitution in the official journal of the ministry!
At that moment all people, who are experts in the matter, felt a cognitive dissonance, as, following this logic, charges could be brought, for instance, against meteorologists, who announced that it is raining, and are found guilty because it is raining!
In other words, leaving aside Yanukovych himself, members of his political team and judges of the Constitutional Court of Ukraine, investigators focused on several officials that were in charge of publishing "a combat leaflet" at the ministry! Well done! I suggest that people, who bought an ink for the printing house, typed the text, and washed the floors, would be served with charges as well.
Now all jokes aside. We are witnesses to a selective, absolutely politically motivated investigation. It will probably be followed by selective justice, because the key potential figures of the "constitutional coup" are clearly let off the hook, while scapegoats are designated to be guilty. And all of this was launched amid much fanfare of the "Maidan demands". However, the Maidan did not demand to throw dust in the people's eyes.
While we can suspect that investigators cannot work efficiently in difficult situations involving killings, large numbers of facts and testimonies, this is not, however, the case in this situation, as in fact this story was characterized by a certain development logic, suggesting a direction to every reasonable investigator. It is true that we are dealing with a sophisticated puzzle where genuine mental facilities and professionalism are needed to put its pieces into place. And the fact that investigators chose an invented, unimportant, and deliberately politically motivated episode from a large picture of a sophisticated category of a constitutional conflict, does not point out to foolishness, but to an attempt to mislead the public. Why there are bad habits
The historical background needs to be explained at first. Since the 1990s, Ukraine has been going through a complex constitutional process, which seems to never end. Since 2004, the Constitution has been a victim of political and legal games. And they are far from following the rules of a legal procedure set forth in Section 13 of the Constitution of Ukraine.
The 2004 political and legal consensus was found as a way out of a serious political crisis. But it was clear back then that the 2004 Constitution version was a political and legal solution reached by violating certain procedures. Furthermore, the constitutional process was still underway … However, everyone inside and outside the country hoped that this constitutional reform was an extraordinary case and that this case would put an end to all such processes.
However, afterwards Ukraine experienced new situations with regular constitutional reforms, each of which more and more pointed out to a further legal degradation. As a result, the state created a paradox: aiming at guaranteeing democracy, freedom, and rule of law, it drifted in a total disregard for the constitutional order of amending the constitutional law.
In 2010, the country witnessed a new crisis of the constitutional conflict when a judgment of the Constitutional Court of Ukraine, after six years of the effect of the Constitution (2004 version), reinstated the pre-existing Constitution (1996 version). The 2014 reinstatement was characterized by a total disregard for the constitutional procedures as well. At first, the Constitution was reinstated under the Law "On Reinstatement of Certain Provisions of the Constitution of Ukraine"; a relevant regulation of the parliament was added a day later.
All three stories involving "development" and "reinstatement" of the Constitutional versions over the last 13 years are identical: to be honest, both the "old" and "new" regimes changed the Constitutional Law in an unconstitutional way. In 2010, under the "old" regime, the key fatal role was played by the Constitutional Court of Ukraine; in 2014 – by the parliament.
What is more, the Constitutional Court of Ukraine, the President, and the parliament liked it so much that, without limiting themselves to facts of reinstatement of the Constitution versions, they went even further and meddled with the constitutional regulation of procedures for amending it. For example, the notorious "clinical" judgment of the Constitutional Court of Ukraine regarding an extraordinary next session: the Court actually answered: "Whenever you wish", having insolently replaced the constitutional procedure with political expediency!
These facts should be borne in mind to evaluate the background against which the aforementioned pre-trial investigation into the "constitutional coup" or, in a "new version", concerning the usurpation of state power, has been conducted for the third year in a row. Crime or political responsibility?
Investigators may not ignore a direct and obvious, like the oak entry door of the General Prosecutor's Office, fact that the foundation of this "constitutional coup" was Judgment No. 20-rp/2010 of the Constitutional Court of Ukraine (CCU) dated September 30, 2010 in the case initiated by the constitutional inquiry of 252 members of parliament of Ukraine concerning the Ukrainian Constitution conformity (constitutionality) to Law of Ukraine No. 2222IV "On Amendments to the Constitution of Ukraine" dated December 08, 2004 (compliance with the procedure for amending the Constitution of Ukraine). Therefore, it would sound logical if law enforcement officers considering the initiation of a criminal case involving the usurpation of power investigated the nature of this CCU judgment, its content and, what is more important, its legal consequences. Because this is the heart of the problem. And they should perform a legal evaluation of these aspects: were there elements of crime in the actions of all the participants in the constitutional consideration when this judgment was made or began?
But almost three years have passed. Based on the media information, it can be concluded that investigators tried to find out whether judges were influenced, whether members of parliament addressed the CCU according to the Constitution, whether they had other motives. Perhaps, they found out who came up with an ideology and scheme of cancelling the 2014 amendments, if any. Expert reporters wrote about it on the eve of the presidential election (https://dt.ua/POLITICS/pered_rivkom.html
). Obviously, they should have tried to find out whether there was a criminal conspiracy and whether there is the main element of an objective side of crime – seizure of state power or changes of the constitutional system
as stipulated by article 109 of the Criminal Code of Ukraine.
However, in conclusion it is obvious that all of these aspects were not properly investigated. Or they were investigated without finding elements of crime. It appears that officers investigating this high-profile case have no idea of what a "constitutional system" means as well as its institutions, political and legal components, and what state power is. Time is needed to get through it all.
And all of a sudden – the beginning of a new political season. Sensations are wanted. "The country will plunge into an election campaign in about a year", said the President in its 2017 Speech. Rumor has it that, given the agenda of its August meetings, this campaign has already started for his team. The shadow political players do not lag behind with their plans, either. But this will be discussed later.
However, given the importance of this case and its impact on the future of our state, the issue must be clearly resolved. For the public, for investigators, for all those involved in the 2010 events. And for those who are in power today and rule from behind the curtains.
Some constitutionalists, experts in law directly involved in the constitutional process, analyzing the 2010 events leading to the 1996 Constitution reinstatement, back then, and not only after the Revolution of Dignity, believed that the CCU Judgment dated September 30, 2010 was a constitutional coup, a constitutional conflict.
However, there are certain specifics of this legal situation. If the criminal element in the actions of the CCU judges, plausible ideologists of the judgment, participants in its adoption procedure is proved, then criminal liability takes place.
If this element is not and cannot be proved, I beg your pardon, but there is just a constitutional conflict resulting in constitutional, political responsibility. Themis, isn't she blind?
In both cases, a way out of this situation in a constitutional way should be found (this was the purpose of creating the Constitutional Assembly).
These are both legally and politically complicated, but solely possible and mutually exclusive legal options of getting out of the current constitutional conflict. There are no other options.
This CCU judgment gives grounds for a political and legal evaluation of the conduct of the CCU judges to be conducted by all those who nominated them: the President, the parliament, the judiciary. Given the legal consequences judges caused by their judgment, it is obvious that after the Revolution of Dignity they should have resigned. The parliament terminated the powers of certain judges. Others submitted their resignations to the acting President. But their resignations were not accepted and most judges involved in the constitutional proceedings still hold their positions. And, as we can see, the court works in conformity to the current "party policy". They are needed. Conspiracy present
In order to forbear from disturbing the harmony at the loyal Constitutional Court and although the criminal element in the judges' actions will obviously be sought, the pre-trial investigation followed a different path. It is hard to state with full certainty, but it is quite likely that investigators showed their "artistic" talents in shaping the publication titled "Constitutional Affair" of one of the current judges of the CCU in Dzerkalo Tyzhnia in February 2014 (https://dt.ua/LAW/konstituciyna-afera-_.html
), which proposed a fantastic conspiracy version, according to which "… the judgment of the Constitutional Court dated September 30, 2010 should be declared null and void, i.e. the one that a priori could not give rise to any legal consequences as far as amendments to the Constitution are concerned". This conclusion is as follows: the heart of the problem consists in the "technical text replacement". Then the author gives a detailed analysis of who and why published the "substituted" text…
It turned out that the conduct of judges should not be investigated, the text of the CCU judgment should not be read, and the conclusions of the Venice Commission just as certain opinions of the CCU judges should be disregarded... It is much simpler to declare that only Mr. Yanukovych (who was a completely ignorant person, to say the least, when it comes to constitutional issues) and officials of the Ministry of Justice, who published the relevant text of the Constitution, were guilty! All other persons involved in the process are true angels, who still work for the benefit of Ukraine.
In deference to the author of the article, I would like to emphasize that, as an opinion of a researcher of criminal law and related sciences, this attitude could be passable in 2014. But investigators proved to be happy to stick to this unbelievable version. And the case was artificially simplified in an extremely sophisticated constitutional and legal area so that it got downplayed to a level of an investigation into the theft of a cell phone or a car. And "a matter of honor" for law enforcement agencies and "fulfillment of the Maidan demand" for their chiefs got a new inspiration and prompt prospects of becoming another "victory".
The urgent "solution" of the constitutional coup case, re-qualified into a case of the usurpation of state power, has political expediency behind it. However, this haste, the time and place when and where it occurred, make it appear as another soap bubble. Anyway, the "heart" of the Constitutional reform case in the form of the above CCU Judgment and its consequences is still there. Investigators and prosecutors may, of course, claim this judgment to be "null and void", but I wonder how they are going to explain it in court. How will they prove that it had no legal consequences, which means: the power was seized through, I beg your pardon, the release of the Official Bulletin of Ukraine. Concerning "null" and legal consequences
In the meantime, investigators should have carefully analyzed the CCU judgment. In particular, its most important aspect, in which its legal quintessence and importance consist: the nature and legal consequences of the judgment. Below are short quotations of the key fragments (in the order positions were stated in the text). Extracts from Clause 6 of the statement of reasons for the judgment:
"The Constitutional Court of Ukraine assumes that declaring Law No. 2222 unconstitutional due to violations of its consideration and adoption procedures means the reinstatement of the pre-existing legal contents of the Constitution of Ukraine,
which were amended and removed by Law No. 2222".
"The Constitutional Court of Ukraine finds that the governmental authorities must immediately implement this Judgment by bringing the laws and regulations in line with the Constitution of Ukraine dated June 28, 1996,
in the version effective before it was amended by Law No. 2222". Clause 2 of the statement of reasons for the judgment: "Law of Ukraine No. 2222-IV "On Amendments to the Constitution of Ukraine" dated December 08, 2004 is declared to be unconstitutional, becomes null and void upon this Judgment adoption by the Constitutional Court of Ukraine". Clause 4 of the statement of reasons for the judgment:
"The Judgment of the Constitutional Court of Ukraine is binding across Ukraine, final and may not be appealed against.
The Judgment of the Constitutional Court of Ukraine is to be published in the "Bulletin of the Constitutional Court of Ukraine" and in other official journals of Ukraine
These clauses alone (being regulatory just as the entire text of the judgment) are sufficient to understand their legal consequences and the time period they take effect.
It appears that the CCU Judgment text concerning its consequences was clearly realized by the CCU judges, who, according to article 64 of the older version of the law on this authority, added their individual opinions on that judgment.
By criticizing the inconsistency, contradiction, lack of any "clear legal attitude toward the legal consequences of declaring Law 2222 unconstitutional", quoting the above attitudes toward the CCU judgment, Judge V. Shyshkin writes: "Such wording absolutely
points out to the position of the Constitutional Court of Ukraine, according to which, once the Judgment is passed, the Ukrainian State is governed by all the provisions of the Constitution of Ukraine adopted by the Verkhovna Rada (Supreme Council) of Ukraine (constitution developer) on June 28, 1996".
CCU Judge P. B. Stetsiuk emphasizes that the court's position is ill-grounded: "Unfounded is the position of the Constitutional Court of Ukraine, according to which "Law No. 2222 invalidation due to violations of its consideration and adoption procedures means the reinstatement of the pre-existing legal contents of the Constitution of Ukraine,
amended and removed by Law No. 2222".
Therefore, the two CCU Judges expressing their individual opinions, arguing against the CCU Judgment, gave their proposals, but relied on the CCU legal position that this judgment reinstates the Constitution of Ukraine dated June 28, 1996, effective before it was amended by Law of Ukraine No. 2222-IV "On Amendments to the Constitution of Ukraine" dated December 08, 2004. Otherwise, they would have no reasons for challenging this legal position.
In my opinion, the so called automatic reinstatement of the text of the Constitution was implied.
The European Commission "For Democracy Through Law" (Venice Commission) took the most professional position. In its Opinion "On the Constitutional Situation in Ukraine" (20.12.2010 CDL-AD(2010)044), it clearly qualified the legal consequences of this CCU judgment. In particular, several clauses of the opinion cover the legal consequences of the CCU judgment. Let us quote literally just one of them, clause 40 of the opinion: "The main consequence of the 30 September Judgment of the Constitutional Court is the reinstatement of the pre-existing legal contents of the 1996 Constitution"
. Therefore, the Venice Commission critically analyzes the judgment, from a standpoint of European constitutionalism and, actually, the Constitution of Ukraine, but this is a fact: it recognizes it.
The text of the CCU judgment, the text of the individual opinions of the CCU Judges, the evaluation of the Venice Commission, Ukrainian experts, in particular, my (V. L. Musiyaka) opinion, and that of others, arrive at the key conclusion: the judgment of the Constitutional Court of Ukraine following the constitutional inquiry of 252 members of parliament of Ukraine concerning the conformity of the Constitution of Ukraine (constitutionality) to Law of Ukraine No. 2222-IV "On Amendments to the Constitution of Ukraine" dated December 08, 2004 (case considering compliance with the procedure for amending the Constitution of Ukraine) reinstates the Constitution pre-existing its amendments under Law of Ukraine No. 2222-IV.
Back then we disputed and criticized this judgment, but it was binding across Ukraine, final, and could not be appealed against. Despite all, it is effective at present as well.
Furthermore, with the situation being all that sophisticated and disputed, the CCU clarified what its actions meant, and obliged the governmental authorities to implement its judgment without delay.
Therefore, the Ministry of Justice of Ukraine immediately published, in its special issue of the bulleting titled the "Official Journal of Ukraine" dated October 01, 2010, the Judgment of the Constitutional Court of Ukraine following the constitutional inquiry of 252 members of parliament of Ukraine concerning the conformity of the Constitution of Ukraine (constitutionality) to Law of Ukraine No. 2222-IV "On Amendments to the Constitution of Ukraine" dated December 08, 2004 (case considering compliance with the procedure for amending the Constitution of Ukraine) and the automatically reinstated text of the Constitution of Ukraine dated June 28, 1996. Not a new version with new details, but in a way as stated by the CCU in its judgment.
On October 06, 2010, on the working day of the scheduled plenary session of the Verkhovna Rada of Ukraine following the CCU judgment, the parliament adopted a decree "On Implementation of Judgment No. 20-rp/2010 of the Constitutional Court of Ukraine dated September 30, 2010 on the conformity of the Constitution of Ukraine (constitutionality) to Law of Ukraine No. 2222-IV "On Amendments to the Constitution of Ukraine" dated December 08, 2004", under which, for drafting amendments to the applicable laws, ordering it to immediately draft decisions of the Verkhovna Rada of Ukraine due to Judgment No. 20-rp/2010 of the Constitutional Court of Ukraine dated September 30, 2010, it had to draft, if necessary, a parliamentary address to the CCU requesting clarifications of the aforementioned judgment.
Neither the parliamentary majority not the opposition requested any clarifications. The situation was clear to everyone. They plunged into an active law-making process.
Therefore, a PR campaign of investigators, who bring charges for the usurpation of state power through the publication of the text of the Constitution of Ukraine in the official journal of the Ministry of Justice, appears legally impotent and is just not serious. At least as far as the official duties of people, who did not hold political positions, but were just officers of the ministry, are concerned. New risks associated with the old topic
Most actions of today's statesmen are similar to those of their predecessors. So all those involved in the process – from the President to members of parliament and the General Prosecutor – should carefully read documents and seriously reflect on their doctrines, prospects and, once again, consequences!
Everything that was mentioned above is in fact half the trouble. Challenges of the latest constitutional process appear even more threatening to our society today. The content and the procedure are extremely important here.
Politicians have been recently squeezing out of their resources ideas of a referendum as a procedure for adopting the new Constitution of Ukraine. Perhaps, this problem of usurping state power is that primitive method, which will permit those behind the curtains of the Ukrainian politics to destroy again the country's Constitutional Law and the state as well. It turns out that we are so talentless and our state is such a fake one that power in it can be usurped even by the publishers of the text of one of the Constitution versions.
In the spring and summer of the 2014, the Russian Federation government already attempted to "stimulate" the Ukrainian constitutional process by calling to adopt the new Constitution of Ukraine through a referendum.
I would like that all the potential parties of the constitutional process learn their own lessons from the Ukrainian constitutional reforms and that we could keep on progressing in that important area in accordance with the European constitutionalism, in a way that would be democratic and legitimate in all respects. This is what the state has its parliament and president for.