November 02 2020
Possible ways of solving the constitutional crisis
As a think and act tank, we usually pick one model that solves the social issue and actively advocate for its adoption. This time it is different. The situation is very complicated, and there is no simple sustainable solution.

The responsibility to solve the issue lies fully with the authorities that were
aware of the situation and the possible solutions but failed to act timely. However, we would like to present you with the number of options that are discussed and our view on them. We hope this helps in the search for the best way out.
Recently, the Constitutional Court of Ukraine (CCU) adopted its scandalous decision regarding the constitutionality of the electronic declaration system, dismantling in a blatant and unlawful manner a big part of Ukraine's anticorruption infrastructure.

This decision has not only complicated but also at some point made impossible fight against corruption and jeopardized visa-free regime and further cooperation between Ukraine and the EU. It became obvious that further activity of this composition of the Court threatens not only other reforms, but also the national security of Ukraine.

The crisis requires the solutions for three issues:

  1. restoring the anticorruption infrastructure, destroyed by the decision of the Constitutional Court of Ukraine;
  2. ensuring the integrity of the Constitutional Court of Ukraine;
  3. protecting other reforms and important laws from the negative influence of the current composition of the CCU.

Possible ways of restoring the anticorruption infrastructure, were proposed by the subject-matter CSOs, in particular Center for Policy and Legal Reform and Anticorruption Action Center. We encourage you to read their analysis of the situation.

In this article we propose our analysis of the publicly available solutions (and some new ones) on protecting other important laws and ensuring the integrity of the CCU. These solutions are not alternatives for the ones on restoring anticorruption infrastructure but at the same time they are not mutually exclusive.
I. Possible ways to restore the integrity of the CCU
1. Termination of the current composition of the CCU by the simple law
The President introduced in the Parliament the bill #4288 "On restoring the public trust in constitutional justice". The bill provides for the termination of the authority of all CCU judges (including those who voted against the controversial decision).

Neither the President nor the Parliament can dismiss the CCU judges (their powers are explicitly listed in the Constitution, articles 85, 106 and others). The Constitution of Ukraine provides that only ⅔ majority of the CCU can dismiss a CCU judge from their office before their term is expired. Therefore, the model envisaged in the draft law #4288 is unconstitutional.
  1. The termination of the authority of all CCU judges by the law prevents or at least delegitimizes further attempts at dismantling the anticorruption institutions and other reforms;
  2. It also opens an unprecedented opportunity to form a new composition of the CCU of high integrity and public trust;
  3. It is the most viable political decision as the President already introduced the bill.
CONs and risks of the implementation
Besides the unconstitutionality of this decision, there are several other substantial risks:

  1. Dangerous precedent. This decision can open the way of further unconstitutional attempts at 'relaunching' other institutions for decisions that are not popular or do not fit the Government's agenda or other vested interests, even in the situations when these decisions were not wrong;

  2. New CC of low integrity. The new composition of the CC might be of the same low integrity as the bill #4288 does not provide any changes to the procedure of the selection and appointment of the CC judges; without the additional procedural safeguards the new composition will be very likely dependent on the current political establishment; termination of the whole composition of the CC will also include the judges who did not vote for this decision and actively opposed it.

  3. Two CCs. It is very likely that the current CC judges will ignore the unconstitutional decision of the Parliament and, if a new CC is formed, there might be two constitutional courts in addition to the two Supreme courts; the legitimacy of each court will be questionable;

  4. The impossibility to form a new credible CC. As the current composition of the CC would be terminated in an unconstitutional manner, there is a high risk that respected lawyers / legal scholars would refrain from participating in a competition to the new CC.
2. Appointing new CCU judges for vacant seats with a new selection procedure
Currently there are 3 vacant seats in the CCU. 2 judges can be appointed by the Parliament and 1 by the Congress of Judges. Judge Slidenko announced that he has submitted a letter of resignation, which if granted by the ⅔ of judges will open another vacant seat (to be filled in by the Parliament). With public pressure other judges may follow. 3 more vacancies will open in 2022.

To exclude untrustworthy judges from being appointed a new selection procedure should be adopted: a single independent selection commission, consisting of public experts and/or international experts supported by the international partners as was proposed in the Judicial reform roadmap. Our colleagues from the ANTAC also proposed the solution for the selection procedure in their analysis.

The Constitution requires that that the judges are selected as a result of the competition the procedure for which is defined by the law. Therefore, this model not only fully complies with the Constitution, but also implements its important provision that was previously ignored.
This model provides for gradual changes in the composition of the CCU in line with the Constitution. If implemented, it provides for selecting a majority of decent CCU judges before 2022.
CONs and risks of implementation
  1. This model does not provide for the full renewal of the CCU and keeps the judges who adopted the decision in their positions;
  2. The CCU will be capable of adopting other dangerous decisions regarding the anticorruption and other reforms if no other safeguards are implemented (at least until 2022);
  3. It will be hard to keep momentum and the focus of the attention on the problems throughout years.
3. Change of the composition of the CCU by the Constitutional amendments
As the CCU is the constitutional body, dealing with the issue of its composition by the Constitutional amendments as a legitimate and fully constitutional way.

This model is in line with the Constitution.
The Constitutional amendments open the way to fully restructure the CCU and even modify the rules for selection of the judges to increase the possibility that the new composition is of high integrity and competence.

CONs and risks of implementation
  1. It is virtually impossible to get 300 votes in the Parliament for the good version of the amendments;
  2. The development and adoption of the amendments will take months if not years;
  3. The Constitutional amendments will require the approval of the CCU that will most likely not give it.
4. Change of the composition/suspension as a result of criminal investigations in regard to the judges of the CCU
Bringing a CCU judge to a criminal liability is a constitutional ground for their dismissal. There is already a criminal investigation in regard to the CCU president Tupytskyi, and other judges might have been involved in criminal activity connected to the adoption of this decision.

In addition, amendments to the CCU law can be introduced that will enable the suspension of a CCU judge who is investigated or accused of a crime.

Dismissing a CCU judge as a result of criminal investigation is constitutional only if they are found guilty by the court. Suspension of CCU judges is not provided for in the Constitution, therefore the constitutionality of such law is questionable.
  1. If some of the judges are found guilty, they are dismissed from their positions automatically;
  2. The judges who did not support the decision will keep their positions.
CONs and risks of implementation
  1. It is very hard to prove the criminal offence that is connected to a decision-making of a judge;
  2. The investigation and court hearings will take years; the other reforms will be endangered during this time if the judges are not suspended;
  3. The law that introduces the suspension mechanism will likely be found unconstitutional;
  4. There is a risk of politicizing the criminal investigations to achieve quick renewal of the CCU.
5. Voluntary resignation of the CCU judges
Voluntary resignation of the CCU judges who voted for this decision as a result of loss of legitimacy and public pressure is logical. The whole composition of the Constitutional court of Moldova resigned in a similar situation in 2019.

Voluntary resignation is a constitutional ground for dismissal of a CCU judge.
  1. Voluntary resignation of the judges who voted for the decision the is the least invasive way to renew the composition of the CCU;
  2. The judges who did not support the decision will keep their positions.
CONs and risks of implementation
  1. This scenario is very unlikely as all but one CCU judges show no signs of the will to resign;
  2. While the public pressure for the resignation of the judges is accumulated, other reforms and important laws are endangered.
II. Possible ways to provide the stability of the anti-corruption infrastructure
1. Changing the requirements for the adoption of the decisions in the CCU or the quorum
One of the easiest ways to prevent the CCU from reversing key reforms is to complicate the procedure for adopting its decisions.

Currently the quorum for considering the cases before the CCU is 12 judges and the decisions are adopted by the simple majority - 10 votes. These requirements are established in the law on the CCU that can be changed by 226 votes in the parliament. The Constitution is silent on this issue.

The Parliament can raise these requirements by amending the law, thus making it more difficult for the judges to pass decisions. There are now 15 judges in the CCU. The minimum quorum for considering cases and the adoption of the decisions could be raised to 14 or even 15 thus requiring a consensus to make any decision. This rule could be working until the majority of the CCU judges are not selected within the new and transparent procedure. This instrument can be additionally implemented to the model described in para 2.

This model fully complies with the Constitution as the requirements for the adoption of the decisions and the quorum are defined by law.
This model will complicate the adoption of the decisions by the CCU and give more leverage for the trustworthy CCU judges thus making other decisions on reversing key reforms less probable or block the activity of the CCU altogether before its composition is renewed.
CONs and risks of implementation
1. As the adoption of the decisions by the CCU will be complicated it would not be able to cancel clearly unconstitutional decisions made by the Parliament/the President/Government until these new requirements are in place;

2. Although the Constitution is silent on the number of votes required for adopting the decision, the CCU may take it as an infringement of its independence and declare it unconstitutional. However, this will be hard to do legally if the new legislation requires consensual voting to adopt any decision including this one.
2. Blocking the existing quorum without changing the law
Under current regulation, 4 judges can block the CCU from adopting any decision. Exactly 4 judges voted against the decision on the e-declarations. These judges may be convinced to not take part in the CCU hearings before the issue of the composition is solved.

This model fully complies with the Constitution.
This solution does not require any decision by the Parliament and is relatively easy to implement.
CONs and risks of implementation
1. Too risky – this requires the good will of 4 people to restrain from their activity for a substantial amount of time; the willingness to engage in such a solution may change;

2. Such restraint of the judges may be found as 'gross or systematic neglect to fulfill their duties' by their colleagues which is a constitutional ground for dismissal of a judge by ⅔ majority of the CCU; this may further disincentivize the judges to engage.
3. Neutralizing constitutional submissions regarding other key reforms
Currently, the CCU is considering a number of submissions regarding the constitutionality of key reforms (the High Anti-Corruption Court, the Land Reform, and the Banking Reform). There is a high risk that the CCU may adopt a similar decision as it adopted regarding the e-declarations. To prevent this, the Parliament could amend the provisions of the laws on reforms whose constitutionality is in question.

The changes should not change the substance of the reforms; just merely the text of the provisions. This would prevent the CCU from ruling these laws / key provisions unconstitutional as the CCU cannot review the constitutionality of the provisions which were amended.

This model fully complies with the Constitution. This model has worked many times before; most recently, the Government amended its decree on the quarantine restrictions in view of the upcoming CCU's decision on their unconstitutionality. The CCU had no other option, but to close the proceedings.
This model is constitutional and will prevent the CCU from reversing the key reforms.
CONs and risks of implementation
  1. Amending the laws on key reforms will require consolidation in the Parliament; some political factions may use this opportunity to amend the substance of the reforms;
  2. Political forces which initiated the original constitutional submissions will be able to submit new ones regarding the renewed laws.
4. The clarifications of the CCU on the enforcement of the decision on the e-declaration system
The Law on the CCU allows the participants of the constitutional proceedings to request clarifications on the implementation of the decision of the CCU (Article 95). The representative of the Parliament in the CCU can file the respective request.

The CCU can issue such clarifications, in particular regarding the provisions, which were not justified in the decision on the e-declaration system. Such clarifications are considered an inalienable part of the CCU's decision.

According to the law, the CCU can clarify the context of its decision. This provision complies with the Constitution.
The CCU can issue clarifications on the provisions of its decision, which were poorly justified and consequently reduce its negative influence by narrowing down the sphere of its implementation (e.g. the matter of the public access to the e-declaration register).
CONs and risks of implementation
In its clarifications, the CCU can extend the sphere of implementation of its decision (e.g. the matter of the public access to the e-declaration register), which will complicate the elimination of its consequences by the Parliament through the adoption of the respective legislative changes.

As we mentioned earlier, we do not consider any of the described proposals or their combination as an only or ideal solution for the current situation.

At the same time, we believe that changing the requirements for the adoption of the decisions in the CCU or the quorum (para II-1) is the least risky way to seize further negative influence of the current composition of the CCU. Such a decision may win time, necessary for the adoption of the quick but balanced decision to mitigate other threats.

In any case, it is vital to introduce the transparent selection procedure to the CCU (para I-2) to ensure that the new CCU's judges comply with the сonstitutional requirements and avoid a similar crisis in future.

It is also important to note that while solving the issue of the CCU composition is of great urgency, the sustainable solution of the integrity of the CCU is not possible without solving the issues of integrity of the High Council of Justice and the District Administrative Court of Kyiv, which are also the international obligations of Ukraine.
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