On December 10, the Venice Commission issued another urgent opinion on the constitutional situation in Ukraine, namely the reform of the Constitutional Court.

Recommendations on amendments to the Law of Ukraine “On the Constitutional Court of Ukraine”:

  1. The Venice Commission proposes that the Verkhovna Rada clearly stipulate in the legislation that the Constitutional Court in its decisions has no right to go beyond the issues specifically raised by the subject of the appeal. In its argument, the Commission notes that in its decision of 27 October 2020, the CCU not only “indeed went beyond the request,” but also did not justify the need for this broader approach.
  2. It is proposed to legally oblige the court to clearly justify the grounds for declaring each individual provision unconstitutional. In this opinion, the Venice Commission reiterated that the style of reasoning and decision drafting in this case falls short of standards of a clear reasoning in constitutional court proceedings, and requires improvement This is unacceptable when the issue in question is repealing legislative provisions.
  3. Part of the opinion is dedicated to recusals / withdrawals and disciplinary sanctions concerning CCU judges in general.
  • The members of the Commission also mentioned the case when the CCU left without proper consideration and justification the appeal of one of the parties regarding the conflict of interests of three judges in the case that initiated the crisis. The Commission advises to clearly explain the decision on applications for withdrawal (recusal) either in the main decision of the CCU, or in a separate procedural decision if such an issue occurs.
  • They noted the lack of sufficient legislative regulation of the issue of disciplinary liability of judges of the CCU in general, both in the Law of Ukraine “On the Constitutional Court of Ukraine” and in its Rules of Procedure. It is also recommended to provide for the public hearing of disciplinary cases against CCU judges, including when the case concerns a breach of a judge’s obligation to withdraw in the event of a conflict of interest.
  1. The Commission recommends that it be legally possible to reduce the quorum if it is not possible to gather a quorum due to the withdrawal of a judge (judges).
  2. A case can be re-opened only if the criminal liability of a judge in connection with a decision that has been made has been established (such as bribe-taking). And this, too, must be clearly provided by law.
  3. And if the Senate declares a provision of the law unconstitutional, the Grand Chamber must confirm such a decision at the request of the president or Parliament.

A number of recommendations were also made regarding the selection and appointment of CCU judges.

  • In order to depoliticize the composition of the Constitutional Court, the judges on the parliamentary quota should be elected with a qualified majority. For this, a constitutional  amendment would be required at a later stage.
  • To ensure that only qualified persons can become judges of the Constitutional Court, a screening body with an international component could be established. Such a body could include international  human rights experts and participation from civil society, to ensure the moral and professional qualities of the candidates.
  • Only following the improvement of the appointment system and creation of a screening agency would it make sense to select judges for vacant positions in the Constitutional Court.

Here are some highlights from the opinion which were not directly reflected in the recommendations.

  • The Commission unequivocally supports the practice of postponing the implementation of CCU decisions for some time. This does not affect the binding nature of the court decision at all, but it would allow for changes in the law with fewer consequences. This is a particularly important tool when it comes to abolishing criminal liability and closing cases. This practice has not been used in declaring the provision on illicit enrichment and, more recently, Article 366-1 of the Criminal Code unconstitutional.
  • The dismissal of CCU judges by a political decision is a serious violation of the principles of the rule of law, the separation of powers and the independence of the judiciary. It is also inadmissible to block the work of the CCU by the Parliament.
  • The Commission notes that criticism of the CCU’s decisions is perfectly normal. However, government officials and civil servants should still be restrained in their assessments. Threats to judges to influence decisions are unacceptable.

Despite significant criticism of the CCU judges’ actions and the direct decision that plunged the country into crisis, the Venice Commission believes that the CCU reform process should consult the court on all aspects of the reform. However, the court, too, must demonstrate some restraint if the provisions changed in the process of reform are later considered by them for their compliance with the Constitution.

Many of the Commission’s recommendations have already been voiced, including by Transparency International Ukraine. And this primarily concerns the urgent need to improve the system of selection of judges and ensure a fair and open competition. This should precede recruitment of candidates for vacant positions.

Currently, a number of bills on overcoming the constitutional crisis and reform of the CCU have been submitted to the parliament. However, none of them solves the complex problem, nor do they fully take into account the recommendations of the Venice Commission. Therefore, it would make sense to initiate a new comprehensive draft law taking into account all the recommendations from the Commission and consider it in the near future.

We should remind you that on December 9, the Venice Commission and the Directorate General of Human Rights and Rule of Law published their Urgent Joint Opinion on the constitutional crisis in Ukraine.