On November 23, 2022, the Venice Commission published its urgent opinion CDL-PI(2022)046 on draft law No. 7662 on the new procedure for selecting candidate judges of the Constitutional Court of Ukraine (hereinafter the CCU). The experts of the DEJURE Foundation, the Center of Policy and Legal Reform, the Automaidan and the Anti-Corruption Action Center analyzed the document and presented the list of statements and conclusions which do not comply with recent Venice Commission’s recommendations and harm the implementation of the CCU reform.
1. Regarding the integrity check of candidates for the CCU
In paragraph 61 of its opinion, the Commission states that, in accordance with the provisions of the law, the Advisory Group of Experts (hereinafter the AGE) evaluates candidates who have already passed an integrity check. This is the basis of the Commission's position that the AGE should only evaluate candidates and cannot decide to terminate their participation in the competition. However, on the other hand, the Commission states that when evaluating the candidate's moral qualities, the AGE must evaluate integrity as its component and calls to be guided by the methodology applied by the Ethics Council for candidates for the High Council of Justice (paragraph 52). Such statements contradict each other, and here is why.
The Commission apparently mistakenly concluded that a special check under the Law of Ukraine “On Prevention of Corruption” allows for screening out candidates who do not meet the requirements of integrity. Candidates undergo such a check already as part of the current procedure for selecting judges of the CCU, and one of its main flaws is that it allows candidates of low integrity to be nominated for the position of a judge of the CCU.
In fact, a special check is a check of the candidate's compliance with the formal requirements and prohibitions established by law. It, in particular, covers the findings of law enforcement agencies regarding possible illegal actions committed by the candidates or violation of the requirements of the Law of Ukraine on Government Cleansing (Lustration Law). Special check does not envision any quality verification of their wealth and sources of income, so there are numerous cases when persons with serious doubts in regard to their integrity were successfully recommended for the positions of the CCU judges. For example, in 2021, the Presidential Competition Commission recommended Oleksandr Sybiha, who received a negative opinion from the Public Integrity Council (hereinafter the PIC) in 2017, for the appointment to the position of the CCU judge because he could not explain the sources of funds for the purchase of valuable property and leisure expenses. Moreover, the Ethics Council vetoed more than 30 candidates who successfully underwent the special check procedures, of whom the majority were with serious doubts about their integrity.
That is why one of the main tasks of draft law No. 7662 should have been the introduction of such a procedure that would allow screening out candidates who do not meet the requirements of integrity. Under the conditions when the AGE cannot screen out candidates on the basis of this criterion, there is no point in adopting the draft law. While mentioning the positive experience of the Ethics Council, the Commission apparently missed out on the fact that the main task of the Ethics Council is to screen out candidates who do not meet integrity criteria. By recommending that the AGE cannot veto candidates, the Commission effectively deprives it of the only and main mechanism that should contribute to the success of the reform. After all, it is precisely such similar powers of the Ethics Council that allow us to maintain cautious optimism regarding the successful implementation of the HCJ reform.
Unfortunately, the Commission's opinion was already rapidly used by the authorities to finalize the draft law for the 2nd reading, which allows the appointing bodies to appoint candidates who do not meet the criterion of integrity as judges of the Constitutional Court.
2. Regarding the composition of the AGE and the probable politicization of the selection
The Commission's conclusions regarding the composition of AGE are especially unexpected. During the communication with the representatives of the Commission, public experts emphasized that the composition of the AGE and its decision-making procedure pose a threat of further politicization of the selection of the CCU judges. Therefore it was expected to see the Commission's statement that the delegation of half of the members of the AGE by the appointing bodies (i.e. the President, the Parliament and the Congress of Judges) may not only fail to successfully depoliticize the selection process, which is one of the goals of the draft law but on the contrary, increase political influence (paragraphs 35, 38 ).
However, despite the acknowledged threat, the Commission ultimately concluded that the proposed composition of the AGE could be approved "given the current circumstances" in which it is difficult to propose another body to delegate members of the AGE (paragraph 38). The Commission expressed the hope that international experts could be a sufficient counterweight to the political members of the AGE, in particular, taking into account the positive experience of the Ethics Council (paragraph 38). Such a position of the Venice Commission raises many questions.
First of all, it is surprising that the Commission repeatedly, including in this matter, justifies its position with "current circumstances" while not naming what exactly these circumstances are and without explaining how the presence of these circumstances justifies a departure from the Commission's previous recommendations, in particular regarding the politicization of the selection of judges of the Constitutional Court as the main challenge for the reform of this institution. Obviously, by "current circumstances", the Commission means a full-scale Russian war against Ukraine. However, Russian aggression cannot be an excuse for allowing the selection of the CCU judges to be politicized. On the contrary, in the conditions of war, when threats to human rights and the constitutional order are especially pronounced, and the threat of Russian influence on the CCU judges is high (which was already publicly acknowledged by the National Security and Defence Council of Ukraine), the presence of an independent and politically neutral CCU is even of more importance.
Secondly, the Commission bases its recommendations on the positive experience of the Ethics Council, yet nevertheless proposes a completely different model of functioning for the AGE. Indeed, both in the Ethics Council and in the proposed composition of the AGE, half of the members are representatives of the appointing bodies, and the other half are international experts. However, the success of the Ethics Council lies in the fact that international experts have the right to a casting vote in conditions where their position differs from the Ukrainian part of the Council. It is this tool, which still is not perfect, that is decisive for the success of the HCJ reform. In particular, the latest published decisions of the Ethics Council are a vivid illustration of the fact that the casting vote allows candidates who have shown their independence but, due to corporate or other interests of the Ukrainian part of the Ethics Council, did not receive their support to be kept in the competition (the casting vote of international experts allowed judge Vynar who was continuously pressured by his peers under false pretences to be recommended for the appointment). Instead, the proposed composition of the AGE was approved or recommended by the Commission despite the fact that its decision-making completely differs from the model under which the Ethics Council functions.
The Commission's position that AGE decisions should only be advisory in nature is erroneous. But even if the AGE has the same powers as the Ethics Council, namely to veto candidates who do not meet the requirements of integrity, then without an anti-deadlock mechanism, the AGE risks repeating not the positive example of the Ethics Council, but the sad example of the Selection Commission of the Head of the Specialized Anti-Corruption Prosecutor's Office. The latter became infamous for not being able to conduct the competition for almost two years as political appointees in the commission blocked the announcement of the winner, who was not satisfying the political stakeholders.
Unfortunately, the Commission was not firm enough in its recommendation to introduce an effective anti-deadlock mechanism, namely the involvement of the seventh member of the AGE. This very step could guarantee, on the one hand, that the political part of the AGE will not be able to take over the process of selecting candidates, and on the other hand, it will not allow it to block the appointment of candidates it considers insufficiently loyal. Such a soft position of the Commission regarding the need to introduce an anti-deadlock mechanism was perceived by the authorities as permission not to consider such an option at all, as evidenced by the text of the draft law prepared by the Parliamentary Committee after the opinion of the Commission.
3. Regarding the non-application of the AGE opinions to the President and his Commission
During the communication with the representatives of the Venice Commission, public experts paid special attention to the fact that in the text of the draft law, a separate wording was used to indicate the role of the Presidential Selection Commission in the selection of the CCU judges. While for the Parliamentary Committee and the Council of Judges, the wording “preparation of the issue for consideration on a competitive basis” is used, for the Presidential Commission, the term “selection of candidates” is used. The Commission was informed that such a difference in wording, in fact, removes the competitive selection under the President's quota from the scope of the provisions regulating the activities of the AGE. It is not uncommon that the use of different terminology to denote the same legal processes is subsequently used for legal manipulations and to avoid the fulfilment of the requirements of the law. Therefore, the use of different wordings in draft law No. 7662 is not accidental. Unfortunately, in its opinion, the Commission ignored this, limiting itself to the general statement that the provisions of the draft law apply to all appointing bodies (paragraph 40). The threat of removing the President from the requirements of the law regarding the evaluation of candidates for the CCU remains relevant.
4. Regarding the participation of civil society in the selection process of the CCU judges
The position of the Venice Commission regarding the participation of civil society in judicial reform was unexpected. In particular, in its previous opinions, the Commission emphasized the importance of the activity of the Public Integrity Council in judicial reform. The procedure for electing members of the PIC was never questioned by the Venice Commission from the point of view of the capacity of representation in this body of various representatives of civil society. Moreover, in its opinion on another stage of the judicial reform CDL-AD(2019)027, the Commission expressed the opinion that the negative opinions of the PIC can be a proper basis for initiating checks of the current judges of the Supreme Court, therefore, they deserve trust.
Instead, in this opinion, the Commission mentioned the “polarization” of civil society and the impossibility of finding an effective mechanism for involving public experts in the work of the AGE. Such a change in the position of the Commission is a great surprise because it is not clear what was meant by the concept of “polarization”. On the contrary, those representatives of the broad civil society (NGOs, think tanks, educational and scientific institutions), who were invited to discuss the draft law by the Venice Commission itself, were unanimous in their assessment of the risks inherent in it.
It should also be emphasized that the pressure of civil society on the authorities is one of the key factors that force the authorities in Ukraine to carry out reforms. Despite the fact that, as in any society that is pluralistic (as the Commission itself acknowledged in paragraph 17), there may be different views on certain issues, Ukrainian civil society is united in defending the independence and political neutrality of the CCU, as well as in zero tolerance for low integrity. This was proven by the years of work of both key public organizations and initiatives, as well as by the experience of the PIC. As a matter of fact, the PIC itself is the result of the unity of various communities of Ukrainian civil society, and the mechanism of its formation, in our opinion, proved the ability of the PIC to be formed on the basis of a broad representation of various initiatives. The hope remains that in the future, the Commission will return to its previous assessment of the role of civil society and the PIC in judicial reform.