The Ukrainian Government invited international partners to nominate experts to participate in the selection of judges of the Constitutional Court. However, the recently introduced selection procedure contradicts the recommendations of the Venice Commission (the VC) and the opinion of the European Commission and poses a serious threat of the establishment of political control over the institution and its dependence.
In June 2022, the European Commission (the EC) recommended granting Ukraine EU candidate status under conditions of institutional reforms. In the first place, the EC specified the reform of the procedure for selecting judges of the Constitutional Court and emphasised that such a reform should take place in accordance with the recommendations of the Venice Commission.
On December 13, 2022, the Ukrainian Parliament adopted the law on the reform of the CCU. However, the adopted law does not meet the recommendations of the VC. The Venice Commission reacted strongly, highlighting the ignored recommendations in the final version of the opinion, approved at the plenary session on December 16-17, 2022.
Particularly, the Venice Commission emphasised that a seventh member should be added to the composition of the selection commission (the Advisory Group of Experts) under the international quota and that the decisions of the Advisory Group of Experts (the AGE) should be binding for the appointing bodies, both in terms of integrity check and professionalism of candidates.
Shortly thereafter, European Commission spokeswoman Ana Pisonero stated that the EU expects amendments to the adopted law that will take into account the recommendations of the Venice Commission. However, the law entered into force, and the Government started its implementation, sending a call to the EU and other international partners to delegate experts to the AGE.
We, the representatives of NGOs, who have been directing efforts to establish the rule of law in Ukraine for years, are convinced that without such amendments, the reform of the CCU is doomed to failure, and democracy and the European future of Ukraine are under serious threat. The current version of the law allows the majority of the Constitutional Court to be brought under political control. Unfortunately, independent international experts will not have the authority to select the most decent candidates; their role will be reduced only to screening out the worst ones, which will make it possible to push politically dependent judges into the CCU.
In fact, politically controlled members of the Advisory Group of Experts will have a decisive influence on the selection of future judges of the CCU. This problem can be solved only if the participation of the seventh member under the international quota is foreseen by the law, as recommended by the Venice Commission.
We emphasise that it is possible to ensure a high-quality composition of the Constitutional Court only if the recommendations of the Venice Commission and the position of the EU are taken into account by amending the law.
In the current situation, the implementation of the law in its current version will lead to political dependence of the key constitutional body for years, which poses an existential threat to democracy and the rule of law in Ukraine in the conditions of a full-scale war.
Therefore, we call on international partners and, above all, the European Union not to support the fake reform and not to participate in its implementation until the law meets the recommendations of the Venice Commission.
Anti-Corruption Action Center
Institute of Legislative Ideas