January 31, 2018
In June 2016, the constitutional reform in the area of justice took place in Ukraine, part of which was reforming the status of the Constitutional Court of Ukraine aimed at ensuring its independence. Politically motivated decisions of the Constitutional Court under the Yanukovych regime, notably the unconstitutional change of the Constitution in September of 2010, clearly highlighted the problem of dependence of constitutional justice in Ukraine. International community also noted this problem, since one of the cooperation areas between Ukraine and the European Union is establishing the rule of law, as well as increasing efficiency and ensuring independence of the judiciary.
The key constitutional novelties regarding the status of the Constitutional Court are as follows:
- new competencies of the Constitutional Court (i.e., the institution of normative constitutional complaint is finally introduced, thus expanding individuals’ and legal entities’ access to the CCU; review of constitutionality of questions that are being presented for all-Ukrainian referendum by popular initiative; competency relating to the interpretation of laws is removed);
- new requirements for judges of the Constitutional Court, including high moral character and recognized level of competence as a lawyer;
- constitutionally mandated selection of the CCU judges on a competitive basis (while the entities charged with appointment of the CCU judges remain unchanged, with Parliament, President, and Congress of Judges each appointing 6 CCU judges);
- change in grounds for and entities charged with removal of Constitutional Court judges (at present, judges are removed by the Constitutional Court itself, while in the past, this used to be done by the same entity that appointed a judge – i.e., Parliament, President, Congress of Judges. At the time, unmotivated politically based removals have been observed).
All of these constitutional amendments had one main goal – to ensure the independence of the Constitutional Court.
Yet, the legislative implementation of the new constitutional provisions has become a problematic stage of the reform to ensure independence of the Constitutional Court. Only on July 13, 2017, did the Parliament succeed on its second attempt to adopt the new version of the Law “On Constitutional Court”. It should be noted that this law should have been adopted before September 30, 2016.
The main problem with the new law has to do with the selection procedure for new judges of the Constitutional Court, as it casts serious doubts as to the success of the entire reform to increase independence of the Constitutional Court. The Constitutional Court’s staffing capacity will determine whether the constitutional jurisdiction body will be independent. In its Opinion on the previous draft law (which had similar deficiencies concerning the selection procedure for judges of the Constitutional Court), the Venice Commission had noted that certain provisions that remain in current law, could make the competitive selection pointless. We must admit that the situation with the selection of new judges aligns with the Venice Commission’s forecast.
According to article 12 of the Law “On Constitutional Court of Ukraine”, the selection and vetting of candidates for the position of the Constitutional Court judge on a competitive basis is carried by a competition commission established by the President of Ukraine (for candidates appointed by the President); by Parliament’s Committee on Legal Policy and Justice (for candidates appointed by the Parliament of Ukraine); and by the Council of Judges of Ukraine (for candidates appointed by the Congress of Judges of Ukraine) – both of which are judicial self-governance bodies. All bodies charged with carrying out the selection are directly depending on the appointing entity, which casts doubts as to the ability of ensuring competitive selection.
According to the selection procedure established by the Law, only a pro forma vetting of candidates’ compliance with legislative requirements established for a Constitutional Court judge and the interview takes place. The Law does not contain provisions for conducting various tests (practical assignments, psychological tests, etc.), which does not allow to genuinely determine a recognized level of competence or high moral character.
On November 13, 2017, the Congress of Judges appointed one judge under its quota. Parliament and the President have yet to appoint any judges under their respective quotas, even though the term for such appointment envisioned by the Law expired in December 2017. In the Centre of Policy and Legal Reform’s opinion, the procedures for selection of judges by all entities – Congress of Judges, Parliament, and President – have major deficiencies and contradict the Constitution of Ukraine.
The presence of four vacancies does not allow the Court to adopt its Procedural Regulations, due to the lack of votes and internal tensions within the Constitutional Court. This, in turn, blocks the review of more than 500 constitutional complaints that are currently pending. In 2017, the Constitutional Court managed to issue only 3 opinions.
However, political actors such as Parliament, and primarily the President, are showing unwillingness to lose influence over the Constitutional Court.
 Art. 14 of the Association Agreement between the European Union and the European Atomic Energy Community and their member states, of the one part, and Ukraine, of the other part, https://eeas.europa.eu/sites/eeas/files/association_agreement_ukraine_2014_en.pdf
 Venice Commission Opinion on the Draft Law On Constitutional Court of Ukraine, Adopted by the Venice Commission at its 109th Plenary Session (Venice, 9-10 December 2016), https://www.facebook.com/photo.php?fbid=10203980282903400&set=a.2326372374743.62585.1712671644&type=3&theater
 http://pravo.org.ua/en/news/20872316-ukraines-more-accessible-and-independent-constitutional-court, http://pravo.org.ua/en/news/20872532-the-public-calls-on-the-competition-comission-under-the-president-to-disclose-information-on-the-selection-of-judges-to-the-constitutional-court-of-ukraine
 As of January 15, 452 constitutional complaints have been submitted to the Constitutional Court, http://www.ccu.gov.ua/novyna/konstytuciyni-skargy-shcho-nadiyshly-do-konstytuciynogo-sudu-ukrayiny-za-stanom-na-15-sichnya
Authors: Yulia Kyrychenko, Bohdan Bondarenko, experts of the Centre of Policy and Legal Reform (Kyiv, Ukraine).
Author : Ukrainian Liaison Office in Brussels