Stepan Berko
Oleh Savychuk

December 24 2020
Who are judges of the Constitutional Court and why they do not protect the Constitution?
The latest decision of the Constitutional Court of Ukraine (hereinafter — the CC) regarding electronic asset declarations, public response to it, and further legislative initiatives of MPs and the President revealed two important problems with this body:

1) many do not understand what a CC is and why it is needed;
2) the integrity of many of the CC judges is questionable, so the independence and proper functioning of this body are jeopardized.

These problems call into question the very legitimacy of the work of the CC. Whatever decisions judges make in defense of the constitutional order and the Constitution, citizens will not support them. Under such conditions, the authorities will be able to ignore the decisions of the CC, appealing to the low authority of this body in society. Such a scenario is completely undesirable, given the special role that the CC must play in the system of government.

Bodies empowered to review legal acts for constitutionality play a key role in democracies, as their activities keep the balance of power, protect against the usurpation of power, and protect human rights and freedoms. Instead, in corrupt and authoritarian countries, they are the mechanisms blocking democratic processes or legalizing questionable decisions. It was through the Constitutional Court that Russia tried to legitimize the illegal occupation of the Autonomous Republic of Crimea.

For the justified dissatisfaction with the arbitrary decisions of the CC not to lead to the destruction of the body called to guarantee the protection of the Constitution, it should be clarified what the CC is and why it is needed, who the judges of the Constitutional Court are and what the procedure for appointing judges has to do with it.
What is the CC and why it is needed?
Bodies with the power to review government decisions for constitutionality are common in many countries. Given that each has its legal tradition, based on historical experience, challenges, and threats, there is no single standard for how such institutions function.

In some countries, as in Ukraine, the function of such a body is performed by a separate institution, in others, this task is performed by a higher court. The former include Austria, Spain, Italy, Germany, France, Poland, Romania, etc. The latter include Denmark, Ireland, Netherlands, Norway, Finland, USA, and others.

These bodies are important because they are responsible for ensuring that the legislature that adopts laws and the executive that initiates and enforces them do not exceed the limits set by the constitution. It is a safeguard against the usurpation of power and arbitrary violation of human rights and freedoms. The decision of the bodies of constitutional justice may often question the long-term work of state institutions, declare long-term reforms unconstitutional, and Ukraine is no exception.

The US Supreme Court recognized that three of the five members of the labor regulator were appointed in an unconstitutional manner (Nat'l Labor Relations Bd. v. Canning Case - 573 U.S. 513, 2014). Thus the regulator had to re-adopt more than a hundred decisions previously made by the unconstitutional composition. In Ukraine in a similar case regarding the regulator in the spheres of the energy sector and public utilities, the CC declared the procedure for forming this body by the President unconstitutional. However, in order not to question the legitimacy and legality of the regulator's work, the court gave Parliament six months to rectify the shortcomings of the law. The Parliament complied with the instruction of the CC, so it was not necessary to adopt new decisions.

In democracies, constitutional justice bodies are also distinguished by the special purpose of their work. Although such institutions are often referred to as constitutional courts, they do not administer justice. Constitutional courts do not resolve disputes between the parties, even when it comes to the struggle for power between certain authorities. The purpose of the court in such a case is to understand and interpret the constitution, develop legal doctrine, and protect the constitutional order. That is, even when the constitutional court hears a case of conflict between two authorities, it does not defend one of them but defends the constitution.

In Ukraine, the body of constitutional justice is the Constitutional Court of Ukraine. According to the Constitution, the CC does not belong to any branch of government. It should act as an arbiter between them, be independent and impartial in the consideration of cases, and consider the Constitution as the main reference point for its work, the protection of the Constitution as its main goal. It is the CC that is the de facto guarantor of the observance of the Constitution, because, unlike the President, it has real powers to protect it from arbitrary decisions.

Therefore, the Constitution prohibits influence on the judges of the CC in any way, guarantees their independence and immunity, and establishes a special procedure for the appointment and dismissal of judges. The Constitution sets out separately the requirements for the financial independence of the court.

To accomplish its task, the CC, in accordance with the Constitution:
  • carries out the official interpretation of the Constitution;
  • verifies whether the laws, other acts of the Parliament, acts of the President, the Cabinet of Ministers, the Verkhovna Rada of the Autonomous Republic of Crimea, current international treaties or those submitted to the Parliament for ratification, comply with the Constitution;
  • checks the constitutionality of questions for the all-Ukrainian referendum on the people's initiative;
  • verifies compliance of the President's impeachment procedure;
  • considers constitutional complaints of citizens regarding the constitutionality of laws;
  • verifies compliance of the procedure for amending the Constitution.
In Ukraine, as a transitional democracy, the CC should have become an outpost of the struggle for the protection of the Constitution, retain within its powers the highest state authorities, prevent usurpation of power, and protect the constitutional order, human rights, and freedoms. Instead, many decisions of the CC, unfortunately, show that it does not fulfill its main task.
For instance, the decision on the possibility of President Leonid Kuchma to run for the third term, the controversial return to the Constitution of 1996 granting additional powers to the former President Viktor Yanukovych, controversial interpretation of the term "next regular session", which allowed to amend the Constitution at any time in an unconstitutional way, a dubious decision to approve early parliamentary elections in 2019, the abolition of criminal liability for illicit enrichment and the integrity of electronic asset declaration system.

These and other decisions of the CC create an abyss of mistrust separating it from the public, as the body that is supposed to protect the Constitution often despises it. Why is that?
Who can be judges of the CC and who appoints them
The Constitution establishes an exclusive list of requirements for CC judges. They can only be citizens of Ukraine who speak the state language, have reached forty years of age, have a higher legal education, work experience in the field of law at least fifteen years, high moral qualities, and are lawyers with a recognized level of competence. Judges of the CC are appointed by the President, the Parliament, and the congress of judges - six judges each.

There is no single established procedure in the world for appointing judges to constitutional courts, nor for the requirements that a candidate must meet. As already mentioned, this is influenced by many factors, individual for each of the states. For example, in Germany, the Federal Constitutional Court consists of two senates eight judges each. Half of the judges of each senate are elected by Bundestag and Bundesrat - parliamentary bodies of the federation. At least 3 of the 8 members of the Senate must have experience as judges of a federal court. The Supreme court justices are nominated by the President of the United States and are finally appointed only if the Senate and its Judicial Committee support the candidacy.

In many countries, the parliament, the president, and the courts are involved in the formation of constitutional courts. For example, in Albania, the candidates from the judiciary are appointed by the Supreme Court, in Bulgaria by the General Assembly of Judges of the Supreme Court of Cassation and the Supreme Administrative Court, in Italy by the Supreme Courts of General and Administrative Jurisdiction, and in Moldova by the High Council of Magistrates (the equivalent of High Council of Justice in Ukraine), in Serbia by the Supreme Court of Cassation (read more on the formation of the constitutional courts in the column of Oleksandr Marusiak, the expert of the Center of Policy and Legal Reform).

In fact, a similar system works in Ukraine since the adoption of the first version of the 1996 Constitution. But unlike other countries, in Ukraine, instead of the highest judicial body or a meeting of judges of the highest courts, judges of the CC are appointed by the congress of judges - a body of judicial self-government to which the delegates are elected by all the judges of Ukraine.

Whereas the purpose of the CC is not to resolve disputes between state authorities, but to generate a modern understanding of the Constitution, protect the constitutional order and human rights, only the most honorable representatives of the legal profession should be appointed CC judges. These may be well-known scholars because it is their professional goal to study and develop the law, it is in universities that legal thought and doctrine develop. Or judges who show a high level of understanding of the Constitution and human rights.

We have studied who had been appointed to the CC throughout the history of its existence since 1996 and noticed certain patterns and trends.
Analysis of the CC judges: who is who
Figure 1
We analyzed all former and current judges of the CC and presented the composition of the court through its history in Figure 1. The figure contains names of the judges, information on who appointed them, their years of work, and previous activities. We divided all judges into six categories based on their previous experience before being appointed to the CC. The main criterion for assigning a person to one or another category was what the person was doing immediately before the appointment.

The persons who at the time of appointment were engaged in long-term scientific activities as their main occupation were assigned to scholars. Those who at the time of appointment worked in the civil or diplomatic service were assigned to civil servants. MPs or ministers at the time of appointment were marked as politicians.

Other legal professionals are those who practiced law or other legal professional activities and did not belong to other categories. Only those who held the position of a judge at the time of appointment were determined as judges.

However, this approach did not always illustrate the full picture given the colorful biographies of individual judges. For instance, Judge Victor Shyshkin worked as a professional judge for nine years, as a prosecutor general for two years, and then as an MP for twelve years before being appointed to the CC. Judge Volodymyr Moysyk worked as a professional judge for nineteen years but was an MP for ten years before being appointed to the CC.

Judge Mykhailo Kostytskyi worked as a scholar for more than twenty years, but two years prior to his appointment to the CC he was elected an MP. Judge Mariya Markush had nineteen years of experience as a legal professional, as well as four years of experience as an MP. Judge Serhiy Holovatyi has sixteen years of experience as a scholar, twenty-two years as an MP, twenty-three years a civil servant, and five years a legal professional. That is why in our analysis, despite significant judicial and scientific or professional experience as lawyers, they appear as politicians.
Figure 2
Figure 2 illustrates the change in the share of a certain category of judges in the CC. In particular, it can be seen that the number of scholars has significantly decreased, i.e. the exact category of people that should be the driving force of the CC.

When analyzing the history of appointments to the CC, the pattern of increasing the number of former judges and politicians in this institution is clearly seen. The Congress of Judges always appoints only judges. Throughout the CC's history the Congress of Judges has never delegated a non-judge to the CC.

The number of civil servants has also changed. From the very beginning of the work of the CC in 1996, they played a significant role in its activity. They were most greatly represented in 2003 when they constituted a third of the composition of the CC. However, since 2008 no official has been appointed.

Former prosecutors also worked in the CC, namely Anatoliy Holovin and Serhiy Vynokurov, but since 2014 prosecutors have not been appointed. Other legal professionals have a similar fate, as they are appointed from time to time, but have not received significant representation.

The first composition of the CC consisted of six judges (one-third of the composition), all of whom were appointed by the Congress of Judges. Another third were legal scholars, three civil servants, and one politician appointed by Parliament and the President. This composition worked until 2001 when the first changes in the composition of the CC took place.

Until 2003, there was a clear pattern: the Congress of Judges appointed only judges, and the President and Parliament non-judges (scholars, officials, politicians, etc.). However, in 2003 for the first time President Leonid Kuchma appointed a former judge to the CC - Valeriy Pshenychnyi, who worked as a people's judge for six years, although at the time of his appointment he had been working in the civil service for twenty one years.

The turning point came in 2006, when President Viktor Yushchenko, the Parliament of the 5th convocation, and the Congress of Judges appointed fourteen judges in one year. As a result, as many as nine judges and former judges were appointed. The Verkhovna Rada for the first time appointed a judge to the CC - V'yacheslav Ovcharenko, the chairman of Yenakiyeve city court, whereas Victor Shyshkin, MP of three convocations with nine years of experience as a judge, and Dmytro Lylak, a judge of the Supreme Court of Ukraine, were appointed by the President.

The largest share of judges and former judges (11 members) in the CC was in 2013. The same composition included three scholars, two politicians, and a prosecutor.
Figure 3
Figure 3 illustrates the composition of the CC (in percentage terms) in the key years of its activity and now:

  • 1997 - the first composition of the CC was fully formed;
  • 2006 - in one year two-thirds of the composition of the CC was renewed;
  • 2010 - the CC adopted a decision, which repealed amendments to the 2004 Constitution and thus significantly increased the powers of former President Viktor Yanukovych;
  • 2013 - the CC is staffed by judges appointed by former President Viktor Yanukovych and the Parliament loyal to him;
  • 2020 - the current composition of the CC.

As Figure 3 illustrates, the number of judges in the CC has increased significantly since 1997, and in 2013, before the Revolution of Dignity, their share in the total composition almost reached ⅔. And despite the fact that this number has decreased in 7 years, the former judges in the CC now make up a little more than half of its members. The representation of politicians in the CC has also increased over time and now they make up 20% of the court.

On the contrary, the share of scholars decreased, from more than a third in the first composition of the CC (the largest share of all categories) to less than a fifth in 2006 and 2013. Now the number of scholars in the CC has increased again, but they do not even make up a third of the body. At the dawn of the CC, civil servants made up one-fifth of judges, and prosecutors and other legal professionals were periodically appointed to the CC. Currently, these categories are not represented in the body. Accordingly, judges have a significant influence on the decision-making process, form the agenda, and direct the activity of the institution.
The reasons for the increasing influence of judges and politicians in the CC and the weakening of the role of scholars should be sought in the change over time of the preferences of the appointees. In particular, interesting patterns can be traced.
Figure 4
Figure 5
Figure 4 illustrates who was appointed by the Parliament as a judge of the CC through its history, and Figure 5 shows the categories of candidates nominated by the Parliament in the long run.

From the above, it can be concluded that in all that time scholars were the most appointed category of candidates appointed by the Parliament. Politicians are second, followed by judges. In terms of time, the share of scholars from Parliament has always been at least a third. Politicians also for a long time accounted for a third of the appointees.

Since 2006, Parliament has been actively appointing judges and prosecutors. Apparently, instead of civil servants, who accounted for a third of the parliamentary quota in appointments to the first composition of the CC, but have not been appointed since 2006.
Figure 6
Figure 7
The situation with appointments by the President is similar. Most of all, the President appointed scholars, then - judges, civil servants, and politicians. In terms of time, scholars initially accounted for two-thirds of the President's appointments, but in 2006 and 2013, the head of state delegated only one scholar to the CC.

In 2005, the head of state began appointing judges to the CC, again in place of civil servants. Judges in 2008 and 2013 accounted for half of the President's appointments to the CC. Currently, there are two politicians, two scholars, and two judges in court appointed by the President.

The Congress of Judges has not elected a single non-judge in the 25 years of the CC's existence.
In conclusion, we can state that judges play a significant if not decisive role in the CC's activity. They had the greatest influence in 2013 when judges made up almost 2/3 of the total number of members of the CC. Currently, their number is slightly smaller, but they still form the majority.

If earlier the President and the Verkhovna Rada did not appoint judges but instead created proportional representation for other categories (scholars, civil servants, politicians), now both the head of state and Parliament fill up to a third of their quota with judges, although the Congress of Judges appoints only judges. The share of former politicians in the CC has also increased over time.
Shortcomings of the procedure for appointing CC judges
A politically loyal and dependent CC is the result of years of "negative selection": a court cannot be independent if judges are dependent themselves. Therefore, the main problem with the formation of the CC is that the appointment procedure does not allow the best candidates to get there.

Until 2016, judges of the CC were appointed behind the scenes. Neither the President, nor the Parliament, nor the judges had to explain why and by whom they were appointing. In 2016, a requirement appeared in the Constitution to select judges of the CC on a competitive basis. This should ensure that only the best candidates with high moral qualities and a recognized level of competence enter this body. However, immediately after the introduction of this norm in the Constitution, it was offset by the law, where the old political and corrupt system of forming the CC was presented under the guise of competition.

To conduct the competition, the President creates his own selection board, which should include lawyers with a recognized level of competence who themselves do not participate in the competition.

The competition itself is to study documents and information about the candidate and requires an interview with the candidate. The commission nominates three candidates for one vacancy. A similar procedure exists for Parliament and the Congress of Judges. But the functions of the selection commission for the Verkhovna Rada are performed by a committee, which is responsible for the issue of the legal status of the Constitutional Court; the same functions for the Congress of Judges are performed by the Council of Judges.

However, they do not hold a real competition but are limited to checking candidates for compliance with formal criteria. In the Parliament, there is no opportunity for candidates to participate independently in the selection. They can be nominated only by a parliamentary faction or a group of MPs, which of course "guarantees" the political neutrality of candidates.
Therefore, in practice, there is a substitution of the concept of "competition". Instead of a competition, which allows determining the most worthy of its participants (which means the word "competition"), the appointing entities appoint those whom they deem necessary.
It is impossible to check whether a candidate has the best skills, knowledge, integrity, whether he/she meets the high standards imposed by the Constitution only on the basis of verification of documents and information and interview.

Even the competition for the lowest level of civil service positions involves testing the requirements of professional competence, including testing personal achievements, knowledge, skills, as well as moral and other qualities. Candidates are tested and interviewed; they solve situational tasks and go through the presentation, and the process itself is public. Unfortunately, the selection for such an important position as a judge of the CC does not provide for such a competitive procedure.

That is why the Parliament and the President prefer judges and politicians because both remain loyal to those who appointed them. In the case of politicians, this is understandable, because they follow a certain party line. And judges have their "advantage" in the eyes of politicians - loyalty and corruption experience.

That is why the second problem with the formation of the CC is a significant quantitative advantage of former judges in its composition.
There is nothing wrong with the presence of judges in the CC. In some countries, there is a direct requirement for such a body to have former judges, such as in Germany. And no wonder, because judges are experienced legal practitioners with the appropriate level of knowledge and skills.

However, the context in Ukraine needs to be taken into account, and it is that high corruption in the courts is a well-known fact. Legalization of illegally acquired property or whitening the reputation of officials is only a small part of the services provided by future judges of the CC to politicians, which earned them a position in the CC. That is why appointing judges who are dependent from politicians, in particular, because of their corrupt past, works fine for the Parliament and the President.
The President prefers to appoint loyal and unfailing judges to the CC in order to block the adoption of decisions that threaten him and, on the contrary, to promote decisions that are beneficial to him.
The Parliament is less prone to dubious appointments because it needs a consensus of political forces. But even this does not contribute to the selection of the best among the best, because each candidate becomes the subject of political and backroom agreements. Therefore, quite often a politically dependent from the current government candidate has significant "advantages" over others.

At the same time, when there is a majority in the Verkhovna Rada controlled by the President, the Parliament does not hesitate to fill the CC with loyal judges (such as Oleksandr Paseniuk and Viacheslav Ovcharenko).

The judges of the CC appointed by the Congress of Judges are primarily aimed at protecting the judicial corporation and blocking any attempts to reform it. This is evidenced by the decisions of the CC on judicial reforms of 2016 and 2019.

It is safe to say that now when judges and politicians have a significant influence in the CC, the crucial state institution plays the role of protector of the personal interests of politicians and judges, and not of the Constitution.
Moreover, when the majority in the CC is made up of former judges who have considerable experience in resolving disputes and administering justice, the practice of the CC instead of interpreting the Constitution and forming legal doctrine turns into dispute resolution.
If scholars consider problems from a theoretical point of view, explore the essence of law as a phenomenon, try to find new and relevant interpretations of the Constitution, search for the spirit of the Constitution, the former judges simply apply the law. Therefore, instead of developing legal thought and understanding of the Constitution, former judges in the CC are trying to solve the dispute that has arisen between the parties.

Therefore, it is not surprising that the decisions of the former judges (who draft the texts of the decisions) are often painfully similar to the decisions of ordinary courts, moreover, unfounded and without proper motivation. Nothing but "in view of the above" and "in accordance with the above".

A clear example of such a practice is the decision of the CC on early parliamentary elections in 2019 (case rapporteur, the CC judge Victor Kryvenko is a former judge). Instead of explaining the heart of the matter before the court, namely, to explain the purpose of the coalition of parliamentary factions in the Verkhovna Rada, under what conditions, when and who can determine the fact of its existence or absence, the CC acknowledged that there is a "constitutional conflict" between the President and Parliament (the concept is not previously known in the practice of the CC and is not explained in the decision itself), the resolution of which is possible by the people by holding early parliamentary elections.

In fact, the CC did not fulfill its function of interpreting the Constitution and forming a legal doctrine, but simply "resolved the dispute" — one body is right and the another is wrong.

Another recent example of a decision of the CC without proper justification is a decision on the judicial reform of President Zelenskyi (Case rapporteur is the CC judge Petro Filiuk — former judge). Presented arguments do not lead to the conclusions of the court, there is no causal link between them (see detailed analysis). As a result, instead of interpreting the Constitution, the CC raises even more questions about its application.
However, it should be acknowledged that even in cases where the judge-rapporteurs are former scholars, the texts of the decisions lack proper motivation. In particular, the decision of the CC regarding the electronic asset declaration system was completely unmotivated, which was admitted even by the Venice Commission, which is usually very reticent in its assessments of such institutions.

The rapporteur was judge Ihor Slidenko, a former scholar, who substantiated the decision quite well in other proceedings, where he was a speaker. Here, the fact that the judge probably had a conflict of interest probably played a role, because he would be faced with responsibility for violation of norms, the constitutionality of which was revoked by the last decision. So, in this case, it is probably a question of the lack of integrity of the judge that took place.
Conclusions
Conclusion #1: there has been an anomalous increase in the number of judges and former judges in the CC since 1996.

To the first composition of the CC only the Congress of Judges appointed judges and they made up only a third of the total composition. However, since 2006, due to the appointments of the President and the Parliament, the representation of judges has significantly increased. In 2013, there were already eleven judges in the CC, i.e., almost two-thirds of the total number of judges.

Even today, the understaffed CC consists of more than half of the judges and former judges. If earlier there was some parity in the formation of the CC, when the President and Parliament appointed scholars, lawyers, politicians or civil servants, and the Congress of Judges only appointed judges, now such principles are not followed.

As a result, there is a risk that the CC, instead of developing legal thought and interpreting of the Constitution, will continue to resolve disputes between state bodies;

Conclusion #2: The President and Parliament prefer judges with a corrupt past and politicians who will loyally defend the personal interests of officials. The Congress of Judges appoints only judges to the CC to lobby the judiciary's interests and to stop any attempts to reform it. As a result, important reforms that threaten the interests of politicians and the judiciary are repealed;

Conclusion #3: For almost five years now, the norm of the Constitution on the competitive selection of the CC judges CC has been ignored. The "competitive" selection defined by the law does not correspond to the basic goal – to choose the best among the best. This cannot be done solely by examining documents and information and conducting an interview. Because of this, there is still a political process of appointment, when the winner is not the most worthy, but the most loyal candidate;

Conclusion #4: It is necessary to introduce a genuine competitive procedure for the appointment of judges of the CC, which would ensure that only independent candidates with high moral qualities and a recognized level of competence are appointed to the CC, as required by the Constitution. The President and Parliament should abandon the appointment of judges to the CC to restore the balance of representation of different categories of legal professionals in court.
DJR
The article is published with the financial support of the European Endowment for Democracy (EED) within the project "Public control of the judiciary".

The contents of this publication are the sole responsibility of the DEJURE Foundation and can in no way be taken to reflect the views of the European Endowment for Democracy.
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