In August, President Zelensky approved the composition of the Selection Commission for the selection of candidates for a position of a judge of the Constitutional Court (CC), appointed by the President, ostensibly to replace judges Oleksandr Tupytsky and Oleksandr Kasminin. Back in March, the President issued decrees "cancelling" the appointment of both judges. And, although civil society has serious questions about Tupytsky's integrity, as well as about some other judges of the Constitutional Court, only the Constitutional Court itself can dismiss a judge of the Constitutional Court. Thus, the President's decision is completely unconstitutional, and therefore there are currently no vacancies in the Constitutional Court under the President's quota. They will appear only next year: one in May and one in September. The case of the legality of the Presidential decree is already being considered by the Supreme Court. The decree has already been declared unlawful by the court of the first instance, and the final point in the case should be set by the Grand Chamber of the Supreme Court in the near future.
Immediately after the establishment of the Selection Commission, our organizations addressed an open letter to its members, describing the risks to the legitimacy of the CC in the event of the competition and the appointment of new judges to non-existent vacancies, and urging the members of the Commission to refrain from participating.
Despite serious reservations about the legality and timeframes of the competition, expressed by individual members of the Selection Commission in separate opinions, the competition was announced on August 23. Interviews with the candidates began on Monday and will last until the end of the week, and, according to the Commission members, the results of the competition will be announced in a very short time on October 22.
The Constitution requires that a judge of the Constitutional Court be a lawyer with a recognized level of competence and have high moral qualities. Analysts of the DEJURE Foundation, the Anti-Corruption Action Center and the Automaidan analyzed the integrity of the candidates in accordance with the methodology approved by the Public Integrity Council. The results of the analysis were sent to the members of the Selection Commission and published in the media. In regard to a significant number of candidates, there is information available, which calls into question their compliance with the integrity criteria. Among them are two candidates, Yelyzaveta Yevgrafova and Mykola Pohoretsky, whose appointment to the Constitutional Court, according to information at our disposal, is personally lobbied by Deputy Head of the Office of the President of Ukraine Oleh Tatarov.
Judging by the way the interviews with the candidates have been conducted so far, there are serious doubts that the Selection Commission really aims to find out whether the candidates meet the requirements to become a judge of the Constitutional Court. In particular, during the interview with Yelyzaveta Yevgrafova, who had previously received a negative opinion from the Public Integrity Council (PIC), the members of the Selection Commission did not try to find out the essence of the established facts and get an explanation from the candidate. Instead, they limited themselves to asking why, in her opinion, the PIC made such a decision.
Unfortunately, this situation further confirms our opinion that this competition, the legitimacy of which is questionable, was initiated by the President solely to legitimize political appointments to the Constitutional Court, and the participation of international experts was provided in order to legitimize this process. The recent statements by President Zelensky regarding the "reset of the Constitutional Court" and the "complete renewal of its composition" raise additional doubts about the President's intention to reform the Constitutional Court in a constitutional manner.
In this regard, we call on:
- the members of the Competition Commission, namely Miroslav Vyzhikovsky, Dmytro Kukhnyuk, Dmytro Lukyanov, Oleksandr Skrypnyuk, Spyridon Flogaitis, Bohdan Futey and Artem Yanchuk not to make a decision on the completion of the competition for the positions of judges of the Constitutional Court until the President of Ukraine publicly assures that he will appoint judges of the Constitutional Court only after the relevant vacancies appear in a constitutional manner;
- the President of Ukraine to publicly assure that he will appoint judges of the Constitutional Court only after the relevant vacancies appear in a constitutional manner.
Anti-Corruption Action Center
Center for Political and Legal Reforms