No independent CCU: new draft law No. 9225 strengthens the government's control over the Constitutional Court under the guise of European integration

Читати українською.

Yesterday, draft law No. 9225 was published on the website of the Verkhovna Rada. It further politicises the procedure for selecting judges of the Constitutional Court of Ukraine (CCU). It should correct the errors in the law adopted at the end of 2022 but instead worsens the already politicised competition for the CCU.

The newly adopted law provides for the creation of the Advisory Group of Experts (AGE) for the selection of judges of the CCU. It should include six members: three representatives of the Ukrainian authorities and three international experts. NGOs warned that such a composition of the AGE allowed the significant influence of Ukrainian authorities on the competition for the Constitutional Court. The Venice Commission, in its opinion CDL-AD(2022)054, clearly and unconditionally expressed the position that the situation needs to be resolved in cases where the AGE cannot make a decision (and the votes are divided 3 to 3). And therefore, the number of members of the AGE should be increased to 7, while the seventh member should be under the quota of international organisations.

What does draft law No. 9225 provide for instead?

Draft law No. 9225, without solving the problems of the current law, further deteriorates the AGE model. Instead of the seventh independent member of the Advisory Group, the draft law increases the influence of political players on the decisions of the AGE, increasing the requirement for a quorum (the minimum number of members of the AGE whose decisions can be considered valid) and the number of votes that allows a candidate to be recommended to the CCU from 4 to 5. Thus, a candidate cannot be recommended for an appointment without the votes of not one but two members of the AGE appointed by political subjects.

What can a politically dependent Constitutional Court be used for?

For example, to legalise the simultaneous presidential and parliamentary elections. The Constitution deliberately provides for the dilution of these processes in time in order to prevent the concentration of power in the hands of a single political force. In addition, Article 83 of the Constitution makes it impossible to hold elections before the end of martial law. However, in the public space and in the Parliament, there are already ideas for changing the electoral legislation. Any such initiative will have to be checked by the CCU for constitutionality. This is just one of the examples that can be used to illustrate the potential political role of a dependent CCU. In addition, the fate of several key reforms already depends on the CCU, namely the creation of the HACC, the reform of the HCJ, the land market, etc. In post-war Ukraine, the CCU will consider the complex issues of reintegration of the occupied territories.

Therefore, we urge the MPs not to adopt draft law No. 9225 and any other proposals that contradict the recommendations of the Venice Commission. Ukraine undertook to reform the Constitutional Court before international partners. The opening of EU accession negotiations also depends on it. The term of office of CCU judges, who are going to be selected according to the current law, is nine years! Failure to amend the procedure in accordance with the requirements of the Venice Commission and other Western partners will not only cause substantial harm to our reputation on the global stage but also result in the establishment of a politically loyal body of constitutional jurisdiction for a dozen years.