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Zelensky provokes another legal basis for his impeachment?

Author : Vitaliy Zhuravsky

Source : 112 Ukraine

March 27, Zelensky's team has once again demonstrated its legal ignorance and arbitrariness 
22:17, 30 March 2021

Zelensky
president.gov.ua

Hiding behind issues of national security and speculating on the situation with the fourth president of Ukraine, Zelensky issued decree No. 124/2021 abolishing two decrees of President Yanukovych, namely: decree No. 256 of May 14, 2013 "On the appointment of A. Tupytsky as a judge of the Constitutional Court of Ukraine" and the decree of September 17, 2013, No. 513 "On the appointment of A. Kasminin as a judge of the Constitutional Court of Ukraine".

In fact, Zelensky's decree refers to the early dismissal of two judges of the Constitutional Court, who were appointed to these positions almost eight years ago. Actually, this was confirmed by the guarantor himself, who said that he "sent two judges of the Constitutional Court to a well-deserved rest," as well as his deputies from the "servants of the people" and "black constitutionalists" who, for their own benefit, are ready to justify any legal outrage.

Related: Zelensky claims reform of Constitutional Court needed "to restore public trust from zero"

Could Zelensky dismiss judges of the Constitutional Court Tupytsky and Kasminin? Definitely - no!

The powers of the President are exhaustively determined by the Constitution of Ukraine. At the same time, the Constitution does not give the President the right to dismiss judges of the Constitutional Court. The head of state had such a right before the amendments to the Constitution were introduced in 2016. And if President Yushchenko, who also in 2007 tried by his decrees to unlawfully dismiss the judges of the Constitutional Court disloyal to him, even formally had such a right, then Zelensky does not have it from the word AT ALL!

Since 2016, the President of Ukraine (whoever he is) has nothing to do with the dismissal of judges of the Constitutional Court. Actually, as well as with regard to the judges of the general courts. In connection with this approach of Zelensky, they now also cannot feel calm and must zealously serve Bankova.

The subject of dismissal of judges of the Constitutional Court (regardless of who they are appointed by) under the current Basic Law of the country is the Constitutional Court.

Art. 149-1 of the Constitution stipulates that "the decision on the dismissal of a judge of the Constitutional Court of Ukraine is made by the Court by at least two-thirds of its constitutional composition." By issuing a decree on the dismissal of judges of the Constitutional Court A. Tupytsky and A. Kasminin, the sixth president of Ukraine clearly went beyond his powers, arrogated to himself the right of the Constitutional Court, grossly interfering in its activities. In legal language, this is called overt usurpation of state power.

Why did V. Zelensky "dismiss" the judges of the Constitutional Court A. Tupytsky and A. Kasminin?

Another masterpiece of legal nihilism from the Ze-company, performed by their "guide", was the founding of the publication of this decree.

In addition to the subject and procedure for the dismissal of judges of the Constitutional Court, the Constitution also clearly defines the grounds for their dismissal. Part 2 of Art. 149-1 of the Constitution provides for four such grounds, namely:

1) inability to exercise their powers for health reasons;

2) violation of the requirements regarding incompatibility;

Related: Court receives two administrative protocols against ex-chairman of Constitutional Court Tupytsky

3) the commission by him of a significant disciplinary offense, gross or systematic neglect of his duties, which is incompatible with the status of a judge of the Court or revealed his inadequacy for the position held;

4) submission by him of a letter of resignation or dismissal from office of his own free will.

There are simply no other grounds for dismissing a judge from office. Moreover, each of the above grounds can be applied by the Constitutional Court only if it is established in the manner prescribed by law. So, in 2019, the Constitutional Court decided by two-thirds of votes to dismiss Shevchuk from the position of a judge of the Constitutional Court, when the conclusion of the Commission on Rules of Procedure established that he committed a significant disciplinary offense, gross or systematic neglect of his duties, incompatible with the status of a judge of the Court, and revealed its inconsistency position held.

For the release of A. Tupytsky and A. Kasminin, there were no grounds for dismissal provided for by the Constitution at the time this decree was issued. It is no coincidence that the decree does not contain a single reference to Art. 149-1 of the Constitution, nor the law "On the Constitutional Court of Ukraine". But if no such grounds have been established, then at Bankova they decided to come up with them, of course, "with the aim of ensuring compliance with the Constitution of Ukraine, human and civil rights and freedoms, ensuring state independence and national security, guided by the national interests of Ukraine."

According to the decree of V. Zelensky, the reason for the dismissal of the judges of the Constitutional Court A. Tupytsky and A. Kasminin was that they, “appointed by V. Yanukovych, while continuing to exercise their powers, pose a threat to the state independence and national security of Ukraine, which violates the Constitution of Ukraine, rights, and freedom of man and citizen.”

Have you understood the logic of the current "guarantor" of the Constitution? It is banally simple: these judges were dismissed for being appointed by President Yanukovych. No more, no less.

Consequently, these judges "pose a threat to the state independence and national security of Ukraine."

Have you understood the logic of the current "guarantor" of the Constitution? It is banally simple: these judges were dismissed for being appointed by President Yanukovych. No more, no less.

Related: Parliament submits to Constitutional Court bill on appointment of NABU and SBI directors

Consequently, these judges "pose a threat to the state independence and national security of Ukraine."

Do you understand the iron logic of the "guarantor"? The judges of the Constitutional Court are subject to dismissal not for what they did in their posts, and not even for violating the procedure for their appointment (which could still be somehow understood), but for being "appointed by the fourth president of Ukraine."

Ukrainians already experienced such a misfortune in the 30s of the last century - it was hard and with great human losses, when they were subjected to repressions, sent to camps, and even shot just for having a connection with the "enemy of the people."

Ze-company is introducing new repressions in Ukraine against new "enemies of the people" created by them.

And this means that in addition to the persons appointed at one time by President V. Yanukovych, everyone who became a judge of the Constitutional Court according to the quota of President P. Poroshenko, who is now the sworn enemy of V. Zelensky, must be prepared. That is S. Holovaty, V. Kolisnik, V. Lemak, V. Moisik.

By the decree on the dismissal of A. Tupytsky and A. Kasminin, Bankova sent a clear signal to all of them: either you will serve Zelensky 100%, or "you will go under the knife."

What are the legal implications of this decree?

And none for judges A. Tupytsky and A. Kasminin. This decree cannot change their legal status as judges of the Constitutional Court, because it is legally null and void, since it was issued by an incompetent entity. This is the same if, for example, the Shmygal government today instead of parliament began to churn out laws, or Kvartal 95 seriously adopted the new Constitution of Ukraine at its revelry, or the SBU, instead of a court, began to issue sentences in criminal cases.

In legal doctrine, the nullity of an act means its invalidity from the very moment of its adoption. It has no legal consequences at all. No rights or obligations arising from such an act. De jure, such an act does not exist at all. That is, from a legal point of view, this is a simple piece of paper.

The problem is different. With clearly legal nihilism and state arbitrariness, this decree, I think, will be given supreme legal force and unconditionally begin to implement it, as was the case with Zelensky's obviously unconstitutional decrees on the removal of A. Tupytsky from the position of judge of the Constitutional Court, the closure of three opposition TV channels, citizens of Ukraine.

Official website of the President of Ukraine

It can be assumed that by waving this scribble, the State Security Directorate will physically block access to the Constitutional Court judge A. Kasminin in the building of the Constitutional Court, as was previously done with respect to A. Tupytsky.

By issuing this unconstitutional decree, Zelensky apparently hoped that society would once again "swallow" his arbitrariness, since the political opposition is weak and its reaction for Bankova does not pose any serious danger, and legal protection from such lawlessness in Ukraine is simply no.

And the Constitutional Court itself is not able to resist such lawlessness, since it is largely delegitimized by the Ze-company and torn to pieces by internal strife. The so-called public activists and experts in this situation, even if they cast their vote in defense of the Constitution, it will rather be very flimsy and streamlined. A. Tupytsky and A. Kasminin have only one way left - to get involved in unpromising litigation.

Related: Zelensky cancels Yanukovych's decree on appointment of Tupytsky as Constitutional Court judge

But this is only now. And tomorrow everything can change exactly the opposite. Especially personally for President Zelensky. Its decision is fraught with inevitable legal consequences. Zelensky created another legal basis for his impeachment and for prosecution since his actions fall under the signs of crimes provided for by the Criminal Code: seizure of state power (Article 109), abuse of power (Article 364), interference in the activities of the judicial body (Art. 376).

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