The European Commission for Democracy through Law, or Venice Commission, has urged Ukraine to select Constitutional Court judges through a competitive selection process with the involvement of foreign experts and civil society.
The commission stated this in its March 22 assessment of a bill sponsored by President Volodymyr Zelensky’s Servant of the People party to reform the Constitutional Court.
The recommendations echoed the commission’s previous opinion on the court’s reform in December.
However, the Verkhovna Rada ignored the previous recommendations on the selection procedure and did not include them in the bill. Viktor Kichun, the newest member of the Constitutional Court, was appointed under the old procedure in February.
The Constitutional Court has faced harsh public criticism since Oct. 27, when it issued a ruling that effectively destroyed Ukraine’s entire asset declaration system for state officials, eliminating a crucial pillar of the country’s anti-corruption infrastructure.
In December the Prosecutor General’s Office charged Constitutional Court Chairman Oleksandr Tupytsky with unlawfully influencing and bribing a witness to make him give false testimony, and Zelensky suspended him from his job. He denies the accusations.
The court refused to recognize Tupytsky’s suspension. However, security guards have refused to let Tupytsky into the Constitutional Court building and the court has since been effectively chaired by his deputy, Serhiy Holovaty, who is seen as more loyal to Zelensky.
Selection procedure
The Venice Commission had more criticism in its latest opinion.
“Most importantly, the draft law does not contain provisions on a new system of competitive selection of judges involving an international component,” the commission said. “…With one exception, draft law no. 4533 does not address the system of appointments of judges of the Constitutional Court nor the competitive selection required by Article 148 of the Constitution. In its Urgent Opinion CDL-AD(2020)039, the commission had recommended to establish a “screening body for candidates for the office of judge of the Constitutional Court.”
This body should have “an international component, which could include international human rights experts and participation from civil society, to ensure the moral and professional qualities of the candidates.”
The commission reiterated its previous recommendation that “current vacancies at the Constitutional Court should be filled only after an improvement of the system of appointments.”
It also criticized a loophole in the bill that would allow the appointment of active members of parliament and the Cabinet to the Constitutional Court.
Good clauses
At the same time, the commission supported some provisions of the bill.
“Draft Law no. 4533 brings about many improvements,” the commission said. “It substantially changes the current regulations of the constitutional proceedings (Law on the Constitutional Court and Rule of Procedure).”
“The main novelties have been introduced in the field of constitutional complaints, publicity and openness of constitutional proceedings, formation of senates and boards and distribution of cases, access to case materials, disciplinary responsibility of judges and the internal functioning of the Constitutional Court.”
The commission also welcomed a clause that would require the court’s Grand Chamber to approve any annulment of a legal provision by one of the court’s subdivisions.
“Draft law no. 4533 also addresses the need to provide sufficient and coherent reasoning for the decisions of the Court,” the commission said.
Other recommendations
The Venice Commission stated that the Constitutional Court’s controversial decisions “can justify raising temporarily the voting requirement in the Grand Chamber.”
It added that minimum vote thresholds should be based on the percent of total judges rather than a fixed number of judges. “Such an increase can be justified only until a certain percentage of judges have been appointed according to the new system of competitive selection.”
The commission recommended that the National Agency on Corruption Prevention should have the initiative to start disciplinary proceedings, instead of the executive branch.
Finally, it recommended that the court be able to review its own decisions in case a judge has been convicted of taking a bribe to vote for that decision.
