Wartime Constitutionalism and the Politics of Constitutional Review in Ukraine
On 18 July 2024, Ukraine’s Constitutional Court issued a decision concerning the rights of the accused in criminal proceedings under martial law. The extension of detention, the Court ruled, can only be issued based on a reasoned court decision—this applies even in times of war.
This blog post first contextualizes the decision within the development of constitutionality review in Ukraine since the beginning of Russia’s full-scale invasion. We examine how the war has influenced the ways in which various actors engage with constitutional complaints, before discussing the Constitutional Court’s recent decision on Article 615.6 of the Criminal Procedure Code. We argue that this ruling exemplifies how the Constitutional Court can maintain the relevance and practical significance of its decision-making in wartime.
The Politics of Constitutionality Appeals since 2022
The effect of the Russian invasion on constitutional proceedings is evident. In 2022, no constitutionality appeals were tabled before the Constitutional Court. The President, parliamentarians, the Supreme Court, and the Ombudsman all refrained from requesting constitutional review that year. In the next years, seven new constitutionality appeals have been submitted to the Court’s chancellery. This is less than the average number of around 10-15 appeals typically submitted for constitutionality review in the late 2010s. Importantly, Russia’s war against Ukraine has impacted the usual political process regarding the constitutional review of legislation.
There has been a change in the politics surrounding constitutionality appeals. Before the full-scale war, Ukraine’s parliamentarians were the most active in petitioning the Court on the most constitutionally salient legal questions. Particularly, the pro-Russian Opozyciyna Platforma faction in parliament had barraged the Court with appeals on the policies by the parliamentary majority. Some of the most prominent appeals by these parliamentarians led to Court decisions on the ‘de-communization’ policy, Ukraine’s pro-EU reforms, and language instruction in public schools favouring the Ukrainian language. These were all major legislative policies of the late 2010s parliament. Since 2022, the significance of the political cleavage motivating constitutionality appeals has declined, paralleling the political demise of the opposition parliamentarians. Today, there is a trend towards specialization in the new appeals – of the seven new constitutionality appeals, five were submitted by the Supreme Court (with the remaining two by the Ombudsman and parliamentarians, respectively).
The change in the agents behind the appeals might explain the change in legal topics sent for constitutionality review. Politicians are prone to ask high-profile legal questions concerning core parameters of public-political life in a polity. Professional judges in the Supreme Court, who enjoy no popular mandate, will likely be concerned with narrower and technical areas of law. Indeed, the recent Supreme Court appeals concern questions of constitutionality stemming from rather legal-technical fields – provisions of family law, legal regulation of state pensions, etc. Before the war, however, constitutional justices were asked to intervene in more salient issues.
Back in 2019, the Court ruled on President Zelensky’s plans to change the text of the Basic Law. The populist-constitutionalist initiatives concerned drastically reforming the parliament by reducing the number of MPs from the current 450 to 300 and by writing into the constitutional text the legislative initiative of the Ukrainian people. Both of Zelensky’s initiatives did not proceed any further in the parliamentary process. The Court cooled the zealousness of the new president with thorough legal advice on improving the planned constitutional changes. Moreover, the following year, the justices rejected a major Zelensky plan to internationalize the process of judicial nominations to Ukraine’s courts.
In 2024, the saliency of constitutional law jurisprudence has further declined. This was marked by the decision not to seek constitutional law advice regarding the terms of incumbency of the current parliament and president. A five-year term for President Zelensky (elected in spring 2019) nominally ‘expired’ in late spring 2024. However, holding regular elections is logistically impossible in wartime. Ukraine’s Constitution is clear on the term of incumbency of the parliament (its term is prolonged by the end of martial law – this point stems from the interpretation of Article 83 of Ukraine’s Constitution). The situation with the term of presidential incumbency is less clear constitutionally. In spring 2024, political pundits discussed the option of petitioning the Court to get an authoritative answer that presidential elections in wartime are impossible by reasoning by analogy – i.e., by extending the interpretation of Article 83 of the Constitution to the presidential term. However, no actual appeal has followed this internal discussion reported from the presidential administration.
Individual constitutional complaints provide the only domain that seems to be unaffected by the current war. Since 2022, individual complaints have steadily come to the Court’s chancellery, numbering in the few hundreds each year. Since 2017, individuals and legal entities (excluding legal entities of public law) have been able to lodge complaints before the Constitutional Court. The complaint can only be made by an individual appellant after the final court ruling on the legal case has been made and when the subject of the complaint is violations of the constitutional norms in ordinary laws (if these ordinary laws were previously applied by ordinary courts to resolve the dispute, in which an individual appellant was a party of). Moreover, individual complaints are usually examined by the two Court’s Senates and not the Grand Chamber, making them easier to eschew substantively and procedurally. Back in the day, this new mode of constitutionality appeal was seen to raise the practical significance of constitutionally-relevant case law. Indeed, the recent July 2024 decision was prompted exactly by such complaints – two Ukrainian citizens questioned the measures of the criminal procedural legislation.
The Constitutional Court’s Decision
Article 615.6 of Ukraine’s Criminal Procedural Code defines that “in case of expiry of the court ruling on detention and impossibility of consideration by the court of the issue of extension of the term of detention in accordance with the procedure established by this Code, the chosen preventive measure in the form of detention shall be deemed to be extended until the relevant issue is resolved by the court, but not more than for two months”.
This provision was challenged by two Ukrainian citizens in two different complaints, subsequently united by the Court in one proceeding. An appellant behind the first complaint was held in custody in Kyiv in late February 2022 when Russia’s forces were trying to take the capital city. In March 2022, the district court in Kyiv could not hold a sitting to continue a term of detention for the appellant – thus, the term was extended automatically without judicial oversight. Subsequently, the Kyiv Appellate Court and Supreme Court refused to consider the appellants’ complaints about the violation of judicial control over the observance of the rights of persons in custody.
In the ruling in this case, the Constitutional Court found a violation of constitutional rights to personal liberty, a fair trial, and the right of the accused to legal defence in the criminal process, and proclaimed Article 615.6 unconstitutional. Constitutional justices enshrined their argument citing the constitutional principle that “no one may be arrested or detained except by a reasoned court decision” (Article 29 of the Constitution). Ukraine’s courts exclusively possess the prerogative to check the validity of interference with personal liberty in criminal proceedings. By implication, the extension of detention must be done with a ‘reasoned court decision’ only. Hence, in the absence of ‘reasoned court decision’, a detained individual should be released immediately. To further substantiate the point, the Constitutional Court relied on the interpretation of the European Convention on Human Rights (ECHR), citing the cases Witold Litwa v. Poland, S., V. and A. v. Denmark, Brogan and Others v. the United Kingdom in the practice of the European Court of Human Rights (ECtHR).
The ruling of the Court might have long-standing implications for future human rights practice in Ukraine. During the proceedings, the legal position of the parliament was discussed by constitutional justices. In his legal position sent to the Court, the Head of the Verkhovna Rada defended Article 615.6 and argued that Ukraine declared derogation from separate provisions of the ECHR and the International Covenant on Civil and Political Rights (ICCPR). Thus, the measure of Article 615.6 of the Code is consistent with the derogation law of 2022. Constitutional justices rejected this point and wrote that “the derogation from some of Ukraine’s international human rights obligations and the resulting ability of the state to restrict certain human rights and freedoms does not mean the introduction of legislative and other means that would not be consistent with the Constitution of Ukraine”. In other words, the Ukrainian government can not arbitrarily cite the fact of derogation necessitated by Russia’s war against Ukraine whenever it sees fit.
A New Start or the Abbys of Irrelevance?
The effectiveness of an institution in a democratic government depends on the willingness of other agents within that government to engage with it. In the case of a constitutional court, this typically means a readiness to seek its advice and abide by its decisions. The impact of Russia’s war against Ukraine has so far stalled much of the usual processes surrounding constitutional review of legislation. As the third year of full-scale war lingers on, Ukraine’s political incumbents are the least likely to appeal on constitutional law-relevant questions – the absence of appeals by the president and parliamentarians in recent years is quite telling. At the same time, there is a potential for constitutional jurisprudence to become more focused on human rights litigation – the recent decision by the Court on the rights of the accused in wartime criminal process is exemplary in the latter regard.
Regarding the future standing of Ukraine’s Constitutional Court, much will depend on the progression of the current war. If Ukraine prevails and holds parliamentary elections after the war ends, a return to normal constitutional politics is likely. New political cleavages in parliament would then shape the struggles around constitutional law and the nature of issues brought for constitutional review. Party politics would once again drive constitutionality appeals. Conversely, if Russia were to achieve substantive wins in Ukraine, the resulting suppression of democratic governance could lead to the growing irrelevance of constitutional jurisprudence over the long term.
