On November 26, the President signed Decrees № 596/2021 “On Appointment of O. Hryshchuk as a judge of the Constitutional Court of Ukraine” and № 597/2021 “On Appointment of O. Petryshyn as a judge of the Constitutional Court of Ukraine” in the absence of relevant vacancies in the CCU under the President's quota.
NGOs have previously pointed out that the Presidential Decree of March 27, 2021, № 124/2021 "On some issues of national security of Ukraine", according to which the head of state "revoked the appointment" of judges of the Constitutional Court Tupytsky and Kasminin is unconstitutional.
According to the Constitution, only the Constitutional Court may dismiss a judge of the Constitutional Court. Also, a CCU judge cannot be dismissed due to the revocation of the Presidential decree on his appointment, as the acquisition of the CCU judge’s authority is related to his taking the oath at a special plenary session of the Court, and not to the adoption of such a decree. Therefore, the revocation of such an act does not give rise to any legal consequences. Although judges Tupytsky's and Kasminin's reputation is seriously doubted, they remain judges of the Constitutional Court until their terms expire (May and September 2022, respectively), or until they are dismissed by the Constitutional Court itself.
The appointment of new CCU judges in the absence of relevant vacancies in the CCU under the President's quota undermines the legitimacy of the Constitutional Court. As you know, some members of the Selection Commission for the selection of CCU judges have warned that CCU judges cannot be appointed until the relevant vacancies appear.
The persons appointed by the President have not yet acquired the powers of judges of the Constitutional Court, as they have yet to take the oath at a special meeting of the CCU. Thus, the legitimacy of the Constitutional Court now depends exclusively on the judges of the CCU themselves. The Constitutional Court itself can prevent the crisis from deepening and refrain from swearing in newly appointed judges until vacancies appear.
In view of this, the NGOs call on the Constitutional Court not to bring to the oath the newly appointed judges of the CCU under the quota of the President of Ukraine until the vacancies appear in accordance with the Constitution.
Center of Political and Legal Reforms
Center of Human Rights “ZMINA”
Center for Public Monitoring and Research
NGO "Strong Communities"
Center for Constitutional Design