Takeover of the Constitutional Court: issues with bill No. 7662 and how to fix it?
On December 13, the Verkhovna Rada approved bill No. 7662, which the deputies referred to as European integration. The reform of the selection of judges of the Constitutional Court of Ukraine (CCU) is a top priority for Ukraine obtaining candidate status and starting negotiations to join the EU. However, public experts have repeatedly cautioned that this bill, in its current form for the second reading, provides a direct path for the political authorities to gain full control over the Constitutional Court, as reported by ZN.
What's wrong with politically appointing judges to the Constitutional Court?
In Ukraine, all presidents attempted to gain control of the Constitutional Court by appointing judges loyal to them. For example, Yanukovych succeeded in this, forcing several judges to resign and appointing individuals loyal to himself. The compliant Constitutional Court then returned the Constitution to him in the 1996 edition with expanded powers for the president. The practice of politically appointing judges to the Constitutional Court eventually led to the crisis of 2020, when it effectively annulled electronic declarations, and a day later, protesters set fires outside the building of the Constitutional Court.
Following this, the Venice Commission, upon the request of President Volodymyr Zelensky, advised Ukraine to reform. According to the Commission, the solution to the crisis should have been the implementation of a transparent selection process in the CCU, resulting in a professional, impartial composition of the Constitutional Court and consistent decisions from the judges.
Since 2016, Article 148 of the Constitution of Ukraine states that judges of the Constitutional Court should be appointed through a competitive process. However, such competitive procedures never reached the level of law until the approval of draft law No. 7662.
What is proposed in No. 7662
The content of the bill approved by the Rada also relates to the procedure for appointing judges of the Constitutional Court. However, it is structured in a way that only those favored by political power and under its control will be able to pass the selection.
The bill proposes the formation of a six-member Advisory Group of experts (SGE) – a selection committee that will assess candidates. It will comprise three independent experts delegated by international partners, similar to the Ethical Council that selects the High Council of Justice (HJC), another significant body in the judiciary. However, three more members will be representatives of the authorities. The issue is that, based on recent competitions (for instance, the selection of the head of the SAP), the government delegates tend to act in line with Ukrainian political culture, and international opinions lack significant influence to block their political decisions.
Here's how it will work. For instance, a clearly dishonest candidate (let's say, Tupitsky), a genuine agent of change, and a relatively unknown 'dark horse' are submitted for the competition. The first candidate, to the approval of the public and international partners, will be rejected by independent international experts. Then, when 'the main threat has already been eliminated,' the real ordeal begins. The pro-government SGE members will start stating that, in their view, the independent candidate is 'not qualified enough' or has some other issue. Consequently, the 'dark horse' has the best chance of getting the majority of votes and becoming a judge of the Constitutional Court. This individual is likely to have no major property issues and a history in state authorities that could lead to rejection from international experts. However, they will have strong connections with political power. As a result, the 'dark horse' may turn out to be a 'wolf in sheep's clothing.' But this will only become apparent from the rulings of such a judge, who will serve for nine years and cannot be dismissed easily.
An option to address this situation could be the model of the strong vote of independent experts, which unfortunately is not included in the new draft law on the CCU. Despite this, it proved to be more successful in competitions for positions in other government bodies. For instance, the Ethics Council, which screens out dishonest candidates for the High Council of Justice, has been effective. Its efforts have already led to noteworthy outcomes: in August 2022, Roman Maselko, an activist and lawyer, became a member of the High Council of Justice, partly due to the Ethics Council's actions. Without the Ethics Council, this appointment might not have been possible, and the appointment to the Supreme Court of Justice would have been influenced by corrupt individuals. The ethics council consists of six members, but if three international experts agree on a decision, they have the dominant vote.
The public has witnessed several instances of the presidential commission selecting judges without involving independent experts. For instance, in November 2021, it unanimously recommended Alexander Sibiga to the CCU, despite him not declaring a residential building in Kyiv and a Porshe Cayenne car, and his daughter living in Moscow. These facts were not seen as problematic by the presidential commission.
Why was No. 7662 approved?
The president's office consistently appoints loyal individuals to the court, which raises concerns about the impartiality of their decisions. This summer, Olga Sovgirya, a former deputy from the Servant of the People, was elected as a judge of the Constitutional Court. Additionally, other individuals with close ties to the President's representative and some judges appointed by the president himself are working in the Constitutional Court. Their appointment on November 26th occurred with significant violations, such as the lack of vacancies in the Constitutional Court according to the president's quota, and the obvious conflict of interest in Alexander Petryshyn's appointment.
According to the DEJURE Foundation, the president's office currently controls five judges, but this is evidently not sufficient. On December 6, three judges appointed according to the parliament's quota were dismissed from the Constitutional Court. As a result, new judges will be appointed by the Verkhovna Rada, where the Servant of the People faction constitutes the majority and may once again appoint their preferred candidates, unless they are obstructed by a genuinely independent commission.
Two more judges of the Constitutional Court next year the congress of judges will choose according to its quota. And despite the fact that one of the pillars of the judicial mafia, the OASK, has recently been eliminated, its influence on the processes is still significant. Consequently, they will also be inclined to agree politically there.
Bill No. 7662 has already been approved in the Rada and is now waiting for the President's signature. After that, it will be published and enacted. If this happens, there won't just be a fake competition for the Constitutional Court like before. Now, all this will be done under the slogans of European integration. The window of opportunity for change will close for a long time because the judges in the Constitutional Court are elected for nine years.
Updated conclusion of the “Venetian”: a new hope
The reform of the Constitutional Court not only has a decisive impact on life within the country but is also a key requirement for European integration. It is directly mentioned as the top priority among seven, without which it's impossible to start negotiations for our entry into the EU. Therefore, our international partners are closely watching the fulfillment of this obligation.
But this time, the Venice Commission has a special role in the process. It is on the basis of their recommendations that the procedure for selecting judges of the Constitutional Court of Ukraine should be changed, as stated in the decision about our candidacy by the European Commission and the European Council.
However, this isn't the first time that Venetian experts have addressed this issue. Back in 2020, at the request of President Zelensky, the Venice Commission, in its conclusion, voiced the same points about the real competitive procedure in the Constitutional Court. It was recommended to create an independent commission consisting of international experts and representatives of the public. This was repeated in two other decisions.
The latest document of the Venice Commission, however, changes positions somewhat. The urgent conclusion adopted specifically for the second reading of the bill contained obvious factual errors and came to false conclusions. It's unclear if the urgency of preparing the conclusion or the desire to support the authorities during the war played a role. However, this clearly did not benefit the reform and European integration.
For political forces interested in the court's dependency, this was the best gift – they significantly worsened the text of the draft for the second reading. Even this edition of the Commission's conclusion did not respond to the draft. In particular, it recommended adding a seventh member to the commission according to the quota of international experts. A group of ambassadors of the G7 countries called on the deputies to adopt such a wording of the bill that would provide for a predominant vote for independent experts in the SGE. However, the parliamentary committee on legal policy ignored these recommendations during the preparation of the draft law for the second reading, and the hall during the voting as a whole, giving 245 votes for it.
However, just three days later, a full meeting of the Venice Commission was held. At that meeting, the Commission took an unusual step and changed its conclusion. Or more precisely, it replaced the previous urgent conclusion with a new complete one. This has only happened once before in relation to Ukraine, showing the significance of the changes made in Venice.
This time, the Venice Commission clearly stated that the SGE should have a seventh member, who should be an independent international expert.
Ignoring this recommendation would show that the Ukrainian authorities are deliberately disregarding the findings of important international partners, as well as failing to fulfill their primary obligation to gain control over the Constitutional Court. This will not go unnoticed.
Instead of results
The current version of Draft law No. 7662 does not solve the issue of political influence on judges of the Constitutional Court of Ukraine. Instead, it contributes to the continuation of the practice of political appointments. The controlled Constitutional Court will continue to make politically motivated decisions on critical aspects of society. This poses a threat to reforms, democracy, and European integration.
Currently, our international partners are hesitant to criticize the Ukrainian authorities during the war, which is understandable. However, the European Commission and EU member states will soon assess Ukraine's progress in reforms based on the actual situation, rather than just passionate speeches and votes on bills. The EU, having learned from the experiences of other Central and Eastern European countries with rule of law issues, could find formal reasons to reject membership for a country with a politically influenced Constitutional Court.
Therefore, Ukraine now faces a significant choice: to implement judicial reform properly or risk undermining the democratic order, rule of law, and the European future.
The deputies have prioritized their partisan interests over the country's interests.
This time, Ukrainians are looking to President Zelensky as the guardian of the Constitution, rights, freedoms, and the Euro-Atlantic path. They are urging him to veto any attempt to deviate significantly and correct the mistakes.
Will the president listen to them?
Mikhail Zhernakov
The judge appointed by Zelensky to the Constitutional Court of Ukraine may have committed a corruption-related offense. This was reported to the NAPC by the CPC.
In Ukraine, there is discussion about the possibility of dissolving the CCU and what would be offered in its place.
