Assessing the legality of the power changes in Ukraine
On 22 February 2014 altogether 328 deputies of Ukraine’s 450-seat national parliament, the Verkhovna Rada, voted to remove President Viktor Yanukovych from office.
The decision referred to the facts that Yanukovich had abandoned his office and was responsible for the deaths of more than 80 protesters and police during the protests in the preceding weeks.
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According to Article 108 of the Constitution of Ukraine as valid on 22 February 2014:
"The authority of the President of Ukraine shall be subject to an early termination in cases of:
As President Yanukovich did not formally resign, the only option available for his removal was the procedure of impeachment. This is regulated in Article 111 of the Constitution:
„The President of Ukraine may be removed from the office by the Verkhovna Rada of Ukraine in compliance with a procedure of impeachment if he commits treason or other crime.
The issue of the removal of the President of Ukraine from the office in compliance with a procedure of impeachment shall be initiated by the majority of the constitutional membership of the Verkhovna Rada of Ukraine.
The Verkhovna Rada of Ukraine shall establish a special ad hoc investigating commission, composed of special prosecutor and special investigators to conduct an investigation.
The conclusions and proposals of the ad hoc investigating commission shall be considered at the meeting of the Verkhovna Rada of Ukraine.
On the ground of evidence, the Verkhovna Rada of Ukraine shall, by at least two-thirds of its constitutional membership, adopt a decision to bring charges against the President of Ukraine.
The decision on the removal of the President of Ukraine from the office in compliance with the procedure of impeachment shall be adopted by the Verkhovna Rada of Ukraine by at least three-quarters of its constitutional membership upon a review of the case by the Constitutional Court of Ukraine, and receipt of its opinion on the observance of the constitutional procedure of investigation and consideration of the case of impeachment, and upon a receipt of the opinion of the Supreme Court of Ukraine to the effect that the acts, of which the President of Ukraine is accused, contain elements of treason or other crime.“
It is obvious that the Ukrainian parliament did not follow the procedures as outlined in the constitution. With its vote on 22 February 2014 parliament could just have initiated the impeachment process based on charges related to the deaths during the protests.
The constitution then requires an investigation by an ad hoc commission, which should have produced proper evidence of the direct criminal responsibility of President Yanukovich, and it also requires a review by the Constitutional Court and the Supreme Court. These did not take place.
Finally, the constitution demands that at least three quarters of the constitutional membership of the Verkhovna Rada vote for the removal of the President in the final step. However, instead of the required 338 parliamentary deputies only 328 voted for the removal of the President.
The argument made by those supporting the removal of President Yanukovich was based on the claim that Yanukovich had used his time in office to manipulate the judicial system and that the bodies supposed to participate in the impeachment procedure, namely the state prosecution, the Constitutional Court and the Supreme Court, had been packed with his appointees through dubious means and that they had made decisions not in line with the constitution. As a result, it was argued, these bodies had lost their legitimacy. The parliament re-confirmed this position later when it voted to sack the third of judges of the Constitutional Court appointed by parliament.
In order to justify the insufficient number of votes supporting the removal during the parliamentary ballot, a similar argument would need to be made about parliament itself, claiming that manipulations of parliamentary elections and faction membership make the parliament illegitimate. In part this position seems to be supported by public opinion, with two thirds of the population supporting early parliamentary elections in parallel to the early presidential elections. However, at this point it becomes clear that the argument leads into a dead end. If all state organs have lost legitimacy due to political manipulations, there is no legitimate way to formally remove the president.
Russia has taken the position that Yanukovich is still the President of Ukraine as his removal was unconstitutional. Accordingly, Russia has stated that it does not recognize the new Ukrainian government. However, Russia’s position is not in line with international law. According to international law a country is represented in international relations and with diplomatic ties by the government which actually hold political power in the country. Judgement on the legality of power changes is considered to be exclusively an internal affair. No power of judgement about the right to political office in a state is transferred to foreign states or international bodies. In this sense the new Ukrainian government clearly holds power in Ukraine as it controls all national state organs and has appointed regional governors throughout the country. Accordingly, the new Ukrainian government is the legal representative of Ukraine in international affairs.
The reason for this rule is obvious. If foreign countries would start to judge the legality of power changes in other countries, they would, first, rival the constitutional courts of the respective countries and would need to claim higher legal competence, and, second and more practically relevant, many countries would no longer be linked through diplomatic ties.
In sum, the removal of President Yanukovich was not in line with the Constitution of Ukraine, but independently of this fact the new Ukrainian government is the legal representative of Ukraine in international affairs. In terms of legitimacy – as going beyond legality – the removal of President Yanukovich can only be justified through the claim that the constitutional order had been manipulated under President Yanukovich to a degree which did prevent it from functioning properly. Accordingly, the debate about the legitimacy of President Yanukovich´s removal from office would require a much broader discussion, which is beyond the scope of this small expertise.
Heiko Pleines, Research Centre for East European Studies at the University of Bremen