KYIV - December 7, 2021. The Ukrainian Bar Association (UBA) expressed concern over the current situation with the Constitutional Court of Ukraine. On November 26, 2021, the President of Ukraine appointed two judges of the CCU. This was preceded by the March 2021 Presidential Decree repealing two previous 2013 Presidential decrees appointing two CCU judges. At that time, the Association had already expressed its opinion and stressed that the President has no authority to dismiss judges of the CCU, and the only possible ways to terminate the powers of the latter are those specified in the Constitution of Ukraine and the Law of Ukraine “On Constitutional Court”.
Back in April 2021, the Administrative Court of Cassation of the Supreme Court ruled that such revocation of previous Presidential decrees was illegal, as in accordance with Article 149 of the Constitution of Ukraine and Article 21 of the Law of Ukraine "On the Constitutional Court of Ukraine" the President has no constitutional authority to dismiss judges of the CCU. The case is currently being considered by the Grand Chamber of the Supreme Court. In addition, in April 2021, deputies of Ukraine also appealed to the CCU with a petition on the constitutionality of the decrees of the President of Ukraine on the actual dismissal of judges of the CCU. The constitutional proceedings were opened in October 2021 and are ongoing.
On November 30, 2021, the CCU effectively refused to take the oath of two judges appointed by the President on November 26, 2021, due to the lack of vacancies and decided to swear in the newly appointed CCU judges after the expiration or dismissal of the current CCU judges appointed by the presidential quota.
Experts of the Ukrainian Bar Association believe that the appointment of new CCU judges by the President before the Grand Chamber of the Supreme Court makes a final court decision on the illegality of dismissal of previous judges and the CCU's decision on the constitutionality of relevant presidential decrees could lead to serious negative consequences, namely question the authority of CCU in general.
In addition, the appointment procedure does not correspond to the intentions and priorities declared in the Strategy for the Development of Judiciary and Constitutional Justice for 2021-2023 (Strategy), approved by the Presidential Decree of 11 June 2021, and the recommendations of the Venice Commission.
Thus, the Venice Commission in its “Urgent Opinion on the Reform of the Constitutional Court” No 1012/2020 of 11.12.2020 recommended improving the procedure for selection of candidates for judges of the CCU, and only thereafter to carry out selection for vacant positions.
The Strategy approved by the President, which is a vector for the development of the judiciary and constitutional justice, provides inter alia the following priority measures to reform the constitutional justice system:
- Improving the mechanisms for verifying the integrity of judges of the Constitutional Court of Ukraine and their compliance with standards of professional ethics;
- Improving the procedures for competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine, their effective verification of integrity and compliance with the level of professional competence and high moral qualities (with the possible involvement of international experts).
Unfortunately, as of today, no draft laws have been registered in the Verkhovna Rada of Ukraine that would improve the procedure for the selection and appointment of CCU judges. The draft Law of Ukraine “On Constitutional Procedure” No 4533 of 21.12.2020 adopted by the Verkhovna Rada of Ukraine in the first reading fails to regulate this issue.
“Given the above, to resolve the situation, it is necessary to develop a mechanism for the impeachment of CCU judges based on world best practices and improve the procedure for selecting CCU judges in accordance with the recommendations of the Venice Commission and the case-law of the European Court of Human Rights.”, - the UBA statement reads.
In addition, the Ukrainian Bar Association expresses its readiness to provide the necessary assistance to the authorities in the development of these measures and their wide public discussion.