Unconstitutional Actions and a Legislative Gap: Were the Actions of the Head of the Ukrainian Supreme Court in Terminating the Powers of Judge Lvov Legal?

Sergiy Panasyuk

Ukrainian-American Concordia University

A couple of months ago, in September 2022, Ukrainian society was shocked by revelations from a journalistic investigation claiming that the Chairman of the Commercial Court of Cassation (which forms part of the Supreme Court of Ukraine), Bogdan Lvov, has Russian citizenship. It is unacceptable for a Ukrainian higher court judge to hold Russian citizenship, not only because of the war started by Russia and the tens or even hundreds of thousands of Ukrainian victims of Russian aggression, but also because it violates Ukraine’s Constitution. Unfortunately, the Judges of the Commercial Court of Cassation, in a special meeting regarding Judge Lvov’s Russian citizenship, could not vote for his early dismissal, which led to huge social outrage. After confirmation from the Security Service of Ukraine that Judge Lvov indeed has Russian citizenship, the Head of the Supreme Court passed an order terminating the powers of Judge Lvov. Despite the fact that such a decision was approved by society and had the purpose of preserving confidence in and the reputation of the Supreme Court, in the author's opinion it violated the provisions of the Ukrainian Constitution.

In accordance with Article 126, part 7 of the Constitution of Ukraine, the powers of a judge are terminated if the judge acquires the citizenship of another state. But Article 19, part 2 of the Constitution clearly prescribes that the officials of the bodies of state power are obliged to act only on the grounds, within the powers, and in the manner envisaged by the Constitution and the laws of Ukraine. So, it is not enough to have constitutional reasons for dismissing a judge, but the official dismissing the judge must also have legally prescribed powers to dismiss. After careful analysis, the author considers that neither the Constitution, nor the Law on the Judiciary and the Status of Judges, gives such a power to the Head of the Supreme Court. The Law only repeats the constitutional provisions about the ban on judges having foreign citizenship and the termination of judges' powers in such cases. Moreover, Article 121 of the Law prescribes that the powers of a judge who receives citizenship of another state should be terminated from the day of receiving that foreign citizenship, but it does not prescribe the procedure for that termination, nor the executors. Also, because the "termination of powers from the day of receiving" foreign citizenship can influence all judgments of a judge with foreign citizenship, the law provides that their powers should be canceled from the day of receiving foreign citizenship, not after the violation becomes apparent (in this case, the termination happened two days after the Security Service confirmed Judge Lvov’s citizenship). Such provisions seem very ill-conceived. It seems that both the constitutional and special law provisions prescribe automatic termination of powers, but that legislators have failed to detail the procedure by which this would happen. It is also clear that the Head of the Supreme Court did not have the power to terminate the Judge's powers, and so his decision to do so directly violated the Constitution.

The constitutional body that should control judges is the High Council of Justice which, by virtue of Article 131 of the Constitution, has the power to decide on a violation by a judge of the legal requirements regarding incompatibility. On first view, a judge's second citizenship should be the subject of investigation and decision by the High Council of Justice. However, Article 54 of the Law on the Judiciary and the Status of Judges, which sets out the requirements regarding incompatibility, is silent about foreign citizenship. 

Further, a petition to the President about the termination of the Ukrainian citizenship of Judge Lvov because he willingly obtained a second citizenship was registered and earned the needed number of votes. In accordance with Article 19 of the Law on the Citizenship of Ukraine, a citizen of Ukraine can lose citizenship by Presidential decree if the person was granted the second citizenship in an active way (ie, undertook conscious actions to earn the citizenship of a foreign country). But first the fact of “active achievement” of the second citizenship by Judge Lvov must be proven. Also, although the loss of Ukrainian citizenship would be a reason for the termination of the judge's powers, the same legislative gap about the procedure for how this should take place exists.

So, we have a paradoxical situation in which the violation of the Constitution and legislation by Judge Lvov is clear and proven by the Security Service of Ukraine, but the legislation does not clearly define the execution procedure and executors. This gives the violator, in the opinion of the author, real legal prospects to challenge the termination of his powers in the Ukrainian courts, the Constitutional Court of Ukraine, and maybe even the European Court of Human Rights.

Sergiy Panasyuk is a Professor in the Department of General Studies of the Ukrainian-American Concordia University (Kyiv, Ukraine); a Professor in the Department of Law of the European University (Kyiv, Ukraine); an academic consultant to the Judge of the Constitutional Court of Ukraine; and the Editor-in-Chief of the Ukrainian Law Review.

Suggested Citation: Sergiy Panasyuk, ‘Unconstitutional actions and a legislative gap: Were the actions of the Head of the Ukrainian Supreme Court in terminating the powers of Judge Lvov legal?’ IACL-AIDC Blog (22 November 2022) https://blog-iacl-aidc.org/new-blog-3/2022/11/22/unconstitutional-actions-and-a-legislative-gap-were-the-actions-of-the-head-of-the-ukrainian-supreme-court-in-terminating-the-powers-of-judge-lvov-legal.