On August 17, the President issued a decree № 365/2021 which established the Regulation for the open competition for the seats of the judges of the Constitutional Court of Ukraine appointed by the President. The President also appointed 7 members of the selection commission. The decree also instructs the selection commission to officially announce and conduct the competition for vacant seats in the Constitutional Court.
We are certain that this decision of the President will not solve the crisis with the Constitutional Court but only deepen it.
As of now, there are no vacant seats in the Constitutional Court within the President's quota. Starting the competition and appointing new judges will only deepen the crisis and threaten the legitimacy of the Constitutional Court and its decisions.
Instead, the efforts should be directed to draft law #4533 which with the amendments of the MP Yaroslav Yurchyshyn provide for a real competitive selection of the Constitutional Court judges. In June these amendments were supported by the parliamentary legal committee. President’s support of this draft law will ensure that the Parliament adopts the law this fall, thus giving the start to the renewal of the CCU.
The term of office of judges Tupytskyi and Kasminin will end in May and September next year which, in full compliance with the Constitution, will open vacancies within the President’s quota. These vacancies should be filled within a new competitive procedure as the Venice Commission recommended upon President Zelenskyi’s request.
Therefore, we call on the President of Ukraine:
- to refrain from conducting any selection of the candidates and appointing judges of the Constitutional Court for the vacancies that legally do not exist.
- to publicly support the draft law №4533 with the amendments of MP Yaroslav Yurchyshyn and facilitate its speedy adoption to provide for a real renewal of the Constitutional Court.
The draft law №4533 provides that the selection of candidates for the Constitutional Court for all appointing bodies should be carried out by a single Qualification Commission. The Parliament, the President and the Congress of Judges will appoint only those candidates who were recommended by the commission. The first composition of the commission will be formed by the Parliament from the experts nominated by the international organisations and retired Constitutional Court judges of its first composition. In future, the commission will itself select its members. The introduction of a new procedure for the selection of judges of the Constitutional Court will make it possible to obtain a high-quality and decent composition of this body within two years and restore public confidence in the Constitutional Court and the state as a whole. More on the proposed model read here.
Only a transparent and legally sound process can restore public confidence in the Constitutional Court. Quick solutions often enjoy public support, but in the long run will lead to an even deeper constitutional crisis and question the legitimacy of a key institution in the system of checks and balances, which without a doubt will be used by the aggressor.
Anti-Corruption Action Centre
Centre of Policy and Legal Reform
Anti-corruption Research and Education Center