The version voted by the MPs does not consider the recommendations of the Venice Commission, the requirements of the G7 countries and jeopardizes the European integration of Ukraine. Therefore, we urge the President to veto the draft law No. 7662 and return it for revision.
The change in the procedure for the selection of judges of the Constitutional Court (CC) is the first of seven recommendations provided by the European Commission (EC) in the decision to grant Ukraine the status of a candidate for accession to the European Union. The quality of implementation of this reform largely depends on the opening and success of negotiations on Ukraine’s membership in the EU.
In its decision, the EC stressed that the reform of the CC should take place in accordance with the recommendations of the Venice Commission. The Venice Commission provided several conclusions on the reform of the CC. In 2020, members of the Venice Commission stressed the need to introduce a competitive selection of judges, engaging international experts and representatives of the public in the integrity check.
On November 23, the Venice Commission published an urgent opinion on the draft law No. 7662. In this opinion, members of the Commission welcomed the provisions providing for the establishment of a separate body, the Advisory Group of Experts (AGE), which would assess the integrity of candidates for the CC; half of its members would be independent experts nominated by donors and the Commission itself.
At the same time, the members of Venice Commission emphasized the importance of supplementing the text with provisions that will allow making decisions in a situation of equal distribution of votes. Thus, Venice Commission recommended adding the seventh member to the commission under their quota.
Before the vote, a group of G7 ambassadors urged MPs to adopt the version of the draft law, which would provide for the meaningful participation of independent experts in the work of the AGE, in particular their predominant vote.
However, the Committee on Legal Policy ignored these recommendations of the Commission during the preparation of the draft law for the second reading.
Thus, the role of the AGE as an independent filter in the process of selection of future judges of the Constitutional Court was completely invalidated. Although the voted version provides for the binding nature of the AGE conclusions for the appointing entities, it is the appointing entities that will have a decisive influence on the content of such conclusions, and therefore the AGE is transformed from an effective filter to an unnecessary rudiment, which will only delay the selection of judges.
Finally, as approved by the Parliament, draft Law No. 7662 will not facilitate the election of competent and independent judges with high moral qualities to the Constitutional Court.
In view of the importance of the reform of the Constitutional Court for the protection of democratic institutions and the constitutional order in the context of the armed aggression of Russia, as well as for the European integration of our state, we call on the President to return draft law No. 7662 for reconsideration and to take into account the recommendations of the Venice Commission.
Transparency International Ukraine
All-Ukrainian Association “Avtomaidan”
Anti-Corruption Action Centre
Interdisciplinary Research and Education Centre for Combating Corruption in Ukraine (ACREC)
NGO Anti-Corruption Headquarters
Institute of Legislative Ideas
NGO Kharkiv Anti-Corruption Center
CSO “Civil Control Platform”
This publication was prepared with the financial support of the European Union. Its content is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of the European Union.