Upon the commission of the Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi,
we publish the text of a statement forwarded to the Prosecutor General of Ukraine
CHAIRMAN
CONSTITUTIONAL COURT OF UKRAINE
Prosecutor General
Venediktova I.V.
Statement
on committing criminal offences (crimes)
by the employees of the Administration of State Guard of Ukraine
Servicemen of the 1st Division of the 6th Service of the Department of Protection of Facilities of the Administration of State Guard of Ukraine (hereinafter referred to as “the UDO of Ukraine”) on December 30, 2020, January 19-22, January 25-29, 2021, February 1-2, 2021 did not allow a judge and the Chairman of the Constitutional Court of Ukraine Tupytskyi O.M. to get on the territory and to the administrative building of the Constitutional Court of Ukraine (hereinafter referred to as “the Court”), about which the Secretariat of the Court has drawn up the relevant acts (copies are attached). Upon the request of Tupytskyi O.M. the servicemen did not provide any documents to confirm the legality of their actions. Answers to questions concerning the official who delivered the decision on non-admission of Tupytskyi O.M. to the administrative building of the Court, he did not receive.
Judges of the Court Kasminin O.V., Moisyk V.R. were also not allowed to enter the administrative building of the Court on January 19, 2021.
Non-admission of the Chairman of the Court Tupytskyi O.M., Judges of the Court Kasminin O.V., Moisyk V.R. to the administrative building of the Court was accompanied by blocking of all entrances to the administrative building of the Court and entrance roads to the territory of the Court by servicemen of the UDO of Ukraine, by physical obstruction of the Chairman and judges of the Court to the territory and to the administrative building of the Court.
Together with the servicemen of the 1st Division of the 6th Service of the Department of Protection of Facilities of the UDO of Ukraine, other persons also took part in blocking the Court and preventing from entering its territory and into the administrative building. According to the available information, in order to block the work of the Court and prevent the judges of the Court from performing their official duties, a special unit of the UDO of Ukraine “Bulat” was involved, the functions of which includes the neutralisation of particularly dangerous criminals and anti-terrorist special operations.
On January 19-21, 2021, there were about 70 such persons on the territory of the Court and in the administrative building of the Court.
At the same time, the leadership of the UDO of Ukraine did not inform the Chairman of the Court about the increase in the number of the servicemen of the UDO of Ukraine and the involvement of the special unit of the UDO of Ukraine “Bulat”. Thus, the Procedure for Admission to the Facilities of the Constitutional Court of Ukraine was grossly violated, which stipulates that the change in the number of posts, their location and appointment is carried out in agreement with the Chairman of the Court, the issue of secondment to the security unit means - with prior information of the Chairman of the Court.
Servicemen of the 1st Division of the 6th Service of the Department of Protection of Facilities of the UDO of Ukraine and other persons arbitrarily inspected the cars of judges of the Court, which was carried out outside the territory of the Court - the respective persons demanded that the judges of the Court open the windows of their cars and show the interiors of their cars for inspection. At the same time, these servicemen also did not allow service cars carrying Court judges into the Court's territory for a long time.
Therefore, the abovementioned persons exceeded their authority and grossly violated the Procedure for Admission to the Facilities of the Constitutional Court of Ukraine, according to which service cars assigned to judges of the Court are not subject to safety control. In particular, the Secretariat of the Court drew up acts on the stop of service transport of judges of the Court Kasminin O.V. and Sas S.V., in which these judges came to work before the Court, and on the unlawful inspection of their service cars (acts are attached).
There were frequent cases of stop of judges of the Court at the entrance to the administrative building of the Court.
These actions by servicemen of the 1st Division of the 6th Service of the Department for the Protection of Facilities of the UDO of Ukraine and persons who acted together with them are also an excess of official authority and a violation of the Procedure for Admission to Facilities of the Constitutional Court of Ukraine, whereby the servicemen of the guard unit are prohibited from obstructing the access of judges of the Court to the object of protection or in any other way from interfering in their activities.
There were no answers to the repeated written addresses to the head of the UDO of Ukraine regarding the notification of the legal grounds for not admitting the Chairman of the Court to the administrative building of the Court and to the persons who delivered this decision (copies of addresses are attached).
The head of the UDO of Ukraine was also informed that the non-admission of the Chairman of the Court to the administrative building of the Court and his office makes it impossible to work with documents with restricted access and financial documents to which the Chairman of the Court has the first signature. The latter, in turn, makes it impossible for judges of the Court, employees of the Secretariat of the Court to receive financial support, as well as to fulfil financial obligations of the Court, including the submission of tax returns (attached).
There was no reaction from the officials of the UDO of Ukraine to this information.
Their actions to prevent Tupytskyi O.M. to the territory of the Court and to the administrative building of the Court, the servicemen of the UDO of Ukraine explained by an oral “order” of the leadership of the UDO of Ukraine, issued pursuant to the Decree of the President of Ukraine “On removal of a judge of the Constitutional Court of Ukraine from office” No. 607/2020 of December 29, 2020 (hereinafter referred to as “Decree No. 607/2020”).
This is despite the fact that Tupytskyi O.M. has the status of a judge of the Court and the Chairman of the Court.
Tupytskyi O.M. was appointed a judge of the Court by Decree of the President of Ukraine of May 14, 2013 No. 256/2013. On May 15, 2013, Tupytskyi O.M. sworn in as a judge of the Court.
The President of Ukraine removed Tupytskyi O.M. from the office of a judge of the Court for a period of two months by Decree No. 607/2020.
Termination of powers and dismissal of a judge of the Court shall be carried out exclusively on the grounds specified in parts one and two of Article 149¹ of the Constitution of Ukraine and in accordance with this Article and Articles 20 and 21 of the Law of Ukraine “On the Constitutional Court of Ukraine”. Even in the case of dismissal of a judge of the Court in accordance with part one of Article 31 of the Law of Ukraine “On the Constitutional Court of Ukraine”, the title of a judge of the Court is preserved.
Issuance of Decree No. 607/2020 in accordance with Article 149¹ of the Basic Law of Ukraine, as well as Articles 20, 21 of the Law of Ukraine “On the Constitutional Court of Ukraine” does not deprive Tupytskyi O.M. the status of a judge of the Court and the Chairman of the Court.
Pursuant to part eight of Article 148 of the Basic Law of Ukraine, the Court at a special plenary session of the Court elects the Chairman from among its members by secret ballot for only one three-year term. At a special plenary session of the Court, which took place on September 17, 2019, Judge of the Court Tupytskyi O.M. was elected Chairman of the Court.
Pursuant to parts four and eight of Article 33 of the Law of Ukraine “On the Constitutional Court of Ukraine” the Chairman of the Court is elected for only one three-year term and may be dismissed if he/she submits a statement for dismissal from office of the Chairman of the Court and the Court decides on early dismissal from this office by a majority of the judges of the Court from the constitutional composition of the Court.
Thus, Decree No. 607/2020 does not terminate the status of Tupytskyi O.M. as a judge of the Court and in no way limits the powers of the Chairman of the Court, defined by parts one, two and three of Article 33 of the Law of Ukraine “On the Constitutional Court of Ukraine”.
In view of the above the actions of servicemen and the leadership of the UDO of Ukraine regarding the inadmissibility of the Chairman of the Court Tupytskyi O.M. on the territory and in the administrative building of the Court and obstruction of performance of official duties by judges of the Court have signs of crimes under part two of Article 344 (interference in the activities of a statesman) and part two of Article 376 of the Criminal Code of Ukraine (interference in the activities of a judicial body). In particular, servicemen and the leadership of the UDO of Ukraine, using their official position, illegally interfered in the activities of judges of the Court Kasminin O.V., Moysyk V.R., Sas S.V., obstructing the performance of their duties as judges of the Court.
In addition, the officials of the UDO of Ukraine were informed that the judge of the Court Tupytskyi O.M. should act as Chairman of the Court, but ignored this information, which demonstrates the intentional nature of their wrongdoing.
The actions of servicemen and the leadership of the UDO of Ukraine also have signs of a crime under Article 341 of the Criminal Code of Ukraine (seizure of state or public buildings or structures).
Having been informed that Decree No. 607/2020 does not terminate the status of a judge of the Court and the Chairman of the Court, as well as that the inadmissibility of Tupytskyi O.M. to the administrative building of the Court hinders the activities of the Court, as there will be difficulties related to the organization of the activity of the Court, as provided for in part one of Article 33 of the Law of Ukraine “On the Constitutional Court of Ukraine”, servicemen continue to block all entrances to the territory of the Court, inspection of cars of judges of the Court, which is carried out outside the territory of the Court, by unauthorized significant increase in the number of servicemen on the territory and in the administrative building of the Court - without the consent of the Chairman of the Court. In addition, the servicemen of the UDO of Ukraine prevented other judges of the Court, in particular Kasminin O.V., Moisyk V.R., Sas S.V., from entering the administrative building of the Court. In these circumstances, it is clear that any “instruction” or “order of the leadership” could only have been intended to interfere with the normal functioning of the Court. Thus, such actions on the part of the leadership and servicemen of the UDO are covered by the objective side of the crime provided for in Article 341 of the Criminal Code of Ukraine.
The actions of servicemen and leadership of the UDO also have signs of a crime under Article 426¹ (excess of power or official authority by a military official) of the Criminal Code of Ukraine.
The principles of activity of the UDO of Ukraine are regulated by the Law of Ukraine “On State Protection of Public Authorities of Ukraine and Officials (hereinafter referred to as “the Law”). The main principle of state protection, which is carried out by the UDO of Ukraine, the Law defines the principle of legality, and the purpose of state protection is to ensure the proper functioning of state authorities of Ukraine, security of officials and relevant facilities. The Law defines the tasks assigned to the UDO of Ukraine, namely: implementation of state protection in relation to public authorities of Ukraine; ensuring the security of relevant officials at their place of residence both on the territory of Ukraine and abroad; ensuring the safety of family members of officials designated by law, who live with them or accompany them; prevention of illegal encroachment on officials and members of their families and objects subject to state protection, their detection and termination; protection of objects defined by law; ensuring the safe operation of vehicles intended for officials specified by law; participation in measures aimed at combating terrorism. It is obvious that the above actions of the employees of the UDO of Ukraine had nothing to do with the legally defined principles and purpose of their activities, and were not aimed at fulfilling the tasks provided for them by the Law.
In particular, according to paragraph 4 of the Procedure for ensuring the safety of officials subject to state protection in places of permanent and temporary residence, approved by the order of the Administration of State Guard of Ukraine dated May 27, 2011 No. 210 and registered in the Ministry of Justice of Ukraine on June 10, 2011 No. 700/19438 (hereinafter referred to as “the Procedure”), the term “regime” means a set of rules that determine the appropriate order of passage, stay and behaviour of citizens, travel of vehicles, movement of unmanned aircraft, bringing and carrying things to permanent and temporary stay of officials, in respect of which state protection is carried out, as well as measures for the implementation of these rules.
According to paragraphs 5, 6 of the Procedure, the regime in the places of permanent residence of officials subject to state protection is established by the heads of the relevant bodies, and in the places of temporary stay of officials – by the UDO of Ukraine.
That is, officials of the UDO of Ukraine are not authorised to establish the procedure for admission of individuals and transport to the territory and to the administrative building of the Court. Instead, they imposed restrictions on the admission of judges to the administrative building and the entry of vehicles into the Court's premises.
The regime in places of permanent residence of officials subject to state protection is established by the Procedure for Admission to the Facilities of the Constitutional Court of Ukraine, approved by the Order of the Chairman of the Court of February 1, 2018 No. 12/1/2018-RSO/dsk (hereinafter referred to as “the Procedure for Admission”).
According to paragraph 14 of the Procedure safety control is carried out concerning things. Instead, servicemen the UDO of Ukraine inspected the cars of the Court's judges for the presence of the Chairman of the Court.
In accordance with paragraph 15 of the Procedure, officials subject to state protection and other persons legally granted the right to unimpeded passage are exempted from security control. Pursuant to paragraph 2.5 of the Procedure for Admission, servicemen of the guard unit are prohibited from obstructing the access of judges of the Court to the object of protection or in any other way from interfering in their activities. According to the third clause of sub-paragraph 3.2.1 of the Procedure for Admission, judges of the Court have the right to enter the administrative building of the Court and the territory of the Court without presenting service certificates and without security controls. Instead, UDO servicemen monitored the safety of judges of the Court.
These and other facts testify to the excess of their powers by servicemen and officials of the UDO of Ukraine.
Given the current situation, as well as the importance of ensuring the constitutional order and national security in Ukraine, the Chairman of the Court addressed the President of Ukraine (http://www.ccu.gov.ua/novyna/zvernennya-golovy-konstytuciynogo-sudu- ukrayiny-do-prezydenta-ukrayiny) and the Chairman of the Verkhovna Rada of Ukraine (http://www.ccu.gov.ua/novyna/zvemennya-golovy-konstytuciynogo-sudu-ukrav...). In his addresses, he also noted that the actions of the servicemen of the UDO of Ukraine have signs of crimes (copies of addresses are attached).
In view of the above, pursuant to Articles 1, 2, 214, 215, 216 of the Criminal Procedure Code of Ukraine, I request:
- To enter information on the commission of criminal offenses (crimes) by servicemen and leadership of the Administration of State Guard of Ukraine under Article 341, part two of Article 344, part two of Article 376, Article 426¹ of the Criminal Code of Ukraine in the Unified Register of pre-trial investigations.
- To initiate a pre-trial investigation into these crimes.
- To ensure a prompt, complete and impartial investigation of the crimes mentioned in this statement, identify all persons involved in their commission and take measures provided by criminal procedure law to bring these persons to justice.
- To send to the address of the Constitutional Court of Ukraine an extract from the Unified Register of pre-trial investigations on entering the specified information.
Attachments:
1. Acts on non-admission of the Chairman of the Court to his workplace dated December 30, 2020, dated January 19-22, 2021, dated January 25-29, 2021, dated February 1-2, 2021, on 12 sheets;
2. Acts on non-admission of Judge of the Court Kasminin O.V. to the administrative building of the Court dated January 20, 21, 2021, on 2 sheets;
3. Acts on non-admission of Judge of the Court Sas S.V. to the administrative building of the Court dated January 29 and February 2, 202, on 2 sheets.
4. Letter of the Chairman of the Court No. 001-16/3-13/5307 dated December 31, 2020, on 1 sheet;
5. Letter of the Chairman of the Court No. 001-16/3-13/5308 dated December 31, 2020, on 1 sheet;
6. Letter of the Deputy Head of the Secretariat of the Court No. 4/4-4/4-13/77 dated January 19, 2021, on 1 sheet;
7. Letter of the Head of the Secretariat of the Court No. 004-016-13/81 dated January 19, 2021, on 1 sheet;
8. Letter of the Head of the Secretariat of the Court No. 004-016-13/82 dated January 19, 202, on 1 sheet;
9. Letter of the Head of the Secretariat of the Court No. 004-11/3-13/112 dated January 21, 2021, on 2 sheets;
10. Letter of the Head of the Secretariat of the Court No. 004-1/3-13/114 dated January 21, 2021, on 1 sheet;
11. Letter of the Head of the Secretariat of the Court No. 004-11/3-13/116 dated
January 21, 2021, on 1 sheet;
12. A copy of the address of the Chairman of the Court to the President of Ukraine, on 4 sheets;
13. A copy of the address of the Chairman of the Court to the Chairman of the Verkhovna Rada of Ukraine, on 6 sheets;
14. Video from the UNIAN website, which shows non-admission of Judges of the Court Kasminin O.V., Moisyk V.R., Tupytskyi O.M. to administrative buildings of the Court on January 19, 2021.
(sighed) O.M. TUPYTSKYI
