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Ukraine: Law on Impeachment of President Adopted

(Nov. 7, 2019) On September 26, 2019, the Law on the Special Procedure for Removing the President of Ukraine from Office (Impeachment Law) entered into force. The Law defines legal procedures for impeachment—a mechanism prescribed by the country’s constitution—and for entrusting the national legislature, the Verkhovna Rada, with the power to remove the president from office. (Const. art. 85, § 10; art. 111.)

According to the Law, impeachment is an extrajudicial constitutional process of removing the president from office for committing treason or other crimes. (Impeachment Law art. 1, § 1.) Impeachment proceedings can be initiated by a written request signed by the majority of legislators and must include legal justification for establishing special temporary investigative commission. The names of the Verkhovna Rada members initiating impeachment must not be disclosed. After the impeachment proceedings have been initiated, the Verkhovna Rada informs the president and the chairman of the Constitutional Court. (Art. 3, §§ 1, 3, 4.)

Special Temporary Investigative Commission

The impeachment investigation is to be conducted by the Special Temporary Investigative Commission (the Commission), which consists of Verkhovna Rada members in proportion to their parties’ or political groups’ representation in the legislature. The Commission also includes a special prosecutor nominated by the impeachment initiators and special investigators recommended by each parliamentary faction. (Art. 4, §§ 2, 3.) The Special Temporary Investigative Commission is to be created within 30 days from the time the impeachment proceedings start. (Art. 4, § 12.) The Impeachment Law requires that the special prosecutor and investigators be Ukrainian citizens with a law degree, have 10 years of experience as a prosecutor or investigator, and be residents of Ukraine for the previous ten years. (Art. 4, § 5.) Members of the Verkhovna Rada can be appointed as the special prosecutor or as investigators. (Art. 4, § 8.)

The Commission investigates the facts and circumstances of the alleged act of treason committed by the president, examines the evidence, and determines whether the actions of the president constitute a crime. The Commission must conclude its work and present recommendations to the Verkhovna Rada no later than six months after its formation. (Art. 5, §§ 2, 4.)

The president cannot have more than five counselors on his defense team (art. 8), and his presence is required when the Commission presents charges (art. 12, § 3).

Deliberations on the Impeachment Resolution

Conclusions and recommendations of the Commission must be submitted to the chairman of the Verkhovna Rada and forwarded to the president of Ukraine three days before the plenary session in which these documents will be discussed and voted on. (Art. 11, § 3.) The plenary session must be open to the public except in cases when confidential or classified information is discussed. (Art. 12, §§ 1–2.) The Verkhovna Rada may ask witnesses and experts to testify at the session. (Art. 14, § 1; art. 15.) The draft resolution is to be debated in accordance with the regular procedures prescribed for full parliamentary debate, and the president or members of the president’s defense team have the right to speak. (Art 17, § 3.)

After discussions, a vote on each item of the charge contained in the draft resolution on impeaching the president is to be held by secret ballot. At least two-thirds of the representatives must vote in favor of adopting the draft resolution for it to pass. (Arts. 18 & 20, § 2.)

Finalizing the Impeachment Decision

If the draft resolution is adopted by the Verkhovna Rada, a majority vote is needed to pass a separate resolution on forwarding the draft resolution to the Constitutional Court and Supreme Court. The Constitutional Court reviews the impeachment procedures to ensure they were conducted in line with due process, and the Supreme Court provides its conclusions on whether the charges presented in the draft resolution contain elements of treason or other crimes. (Art. 19.)  If the Constitutional Court finds procedural violations, the Verkhovna Rada must take steps to correct them. These may include changing the staff of the Special Temporary Investigative Commission and conducting an additional investigation. (Art. 20, §§ 6, 8.) Should the Supreme Court issue an opinion stating that the acts of the president do not constitute a crime or treason, the impeachment proceedings are terminated. (Art. 20, § 5.)

If both the Constitutional Court and Supreme Court confirm the draft resolution, the Verkhovna Rada votes by secret ballot on removing the president from office. The resolution is considered approved if it is supported by at least three-quarters of all 450 Verkhovna Rada members. (Art. 21, § 5.) Should the Verkhovna Rada not adopt the resolution on removing the president from office, the chairman of the Verkhovna Rada is to terminate impeachment proceedings, announce their termination in the official gazette, terminate the powers of the Special Temporary Investigative Commission, and apologize to the president on behalf of the Verkhovna Rada. (Art. 22.) If approved, the resolution on impeachment of the president comes into force from the moment it is announced by the chairman of the Verkhovna Rada. (Art. 21, § 7.) Materials discovered by the Commission are then forwarded to the prosecutorial authorities for conducting a criminal investigation. Article 112 of the constitution provides that the chairman of the Verkhovna Rada is to assume the duties of the president, while article 103 requires that new presidential elections be held within 90 days from the day the president’s authority is terminated.

Assessment of the Impeachment Law

The adoption of the Impeachment Law was promised by President Volodymyr Zelensky during his campaign as a measure to strengthen the fight against corruption in the country. The president made the adoption of this law his highest priority and stated in a press release on September 23, 2019, that “the adoption of this law restores the system of checks and balances provided by the Constitution of Ukraine.” However, the opposition in the Verkhovna Rada have criticized the pro-presidential leadership of the Verkhovna Rada for allowing the Law to pass without discussion (click “See the Screenshot View”).  The first reading of the bill and its final adoption were conducted on the same day, which, in the opinion of some members of the Verkhovna Rada, constitutes a procedural violation. Some suggest that this violation was committed deliberately in order to invalidate the Impeachment Law in the future and avoid having any impeachment procedure.