Draft law № 7662 as a direct way for the politically loyal composition of the Constitutional until the end of April.
As early as next week, on December 13, the Parliament plans to consider draft law № 7662 on the "reform" of the Constitutional Court. The new procedure for selecting judges at the Constitutional Court should ensure that only independent and politically unbiased professionals are appointed there. Then the Constitutional Court will be able to be the guarantor of the protection of the Constitution and human rights. It is also important because the reform of the Constitutional Court is one of the key conditions for Ukraine's EU membership.
However, the current version of the draft law is very dangerous. It stipulates that independent international experts, delegated by Ukraine's partners, will not have a casting vote in the Advisory Group of Experts, which will check the candidates for the CCU. The Ukrainian half of the Advisory Group will consist exclusively of representatives of the authorities and, therefore, will have the opportunity to act in the "best" traditions of Ukrainian political culture and backroom agreements. They will be able to block real agents of change, instead letting "grey horses" who meet the formal criteria be appointed.
All presidents of Ukraine at one time tried to take control of the Constitutional Court. Yanukovych achieved considerable success — he forced several judges to resign and appointed persons loyal to him. Then the obedient Constitutional Court restored the Constitution in the version of 1996 with excessive powers of the President. Unfortunately, in this story of political influence on the CCU, we are going in circles; now, another attempt is happening again.
Firstly, Oksana Hryschuk and Oleksandr Petryshyn were appointed to the Constitutional Court in the autumn under the President's quota. This process took place with significant violations. At the time of November 26, when Volodymyr Zelenskyy appointed these judges, there were no vacancies in the Constitutional Court under the President's quota. By doing this, he endangered the legitimacy of the institution. In addition, in fact, there was no competition for positions, although it is provided for by the Constitution. Oksana Hryshchuk is the daughter of Viktor Hryshchuk, a former member of the HCJ, whom the Ethics Council found of low integrity. And Petryshyn was elected despite an obvious conflict of interest. It is expected that in such an uneasy situation, candidates are prone to political loyalty.
Secondly, at that time, Viktor Kychun was already a judge of the Constitutional Court. He was appointed by the Verkhovna Rada on the initiative of the "Sluha Narodu" faction. "If you elect me, you will have at least one more supporter of restraining the Constitutional Court. I believe that we have created an excessive judicial super-institution, which today actually dominates the state", - Kychun said during his presentation in the Verkhovna Rada. In addition, according to Fedir Venislavskyi, the President's representative in the CCU, Viktor Kichun is his friend.
The last appointment to the Constitutional Court is the most politically obvious. This summer, the Parliament elected Olha Sovhyria, who was an MP from the "Sluha Narodu" party, as a judge of the Constitutional Court. In general, according to the information of the DEJURE Foundation, the President’s Office already controls five judges of the Constitutional Court.
As a reminder, the Constitutional Court consists of 18 judges. They make a decision by a simple majority, i.e. 10 votes. However, not all decisions are made in plenary — the Constitutional Court has two senates of nine judges. Five judges are enough to block the decision there.
Yesterday, at a special session of the Constitutional Court, three judges were dismissed: Iryna Zavhorodnia, Serhiy Sas, and Ihor Slidenko. All three were appointed under the Parliamentary quota. Accordingly, new judges of the Constitutional Court will be elected by the Verkhovna Rada, where the "Sluha Narodu" party has a monomajority and, obviously, will appoint its own candidates. Since the CCU judges are appointed for nine-year terms, this decision will have long-term consequences.
Two more judges of the Constitutional Court will be elected next year by the Congress of Judges under its quota. It seems that the judicial mafia is currently on good terms with the President’s Office. At least, this is the impression you get when you listen to the excuses of Andriy Smirnov, the deputy head of the President’s Office, as to why the process of liquidation of the infamous DACK is not moving forward.
Now follow the timeline. Draft Law № 7662 is planned to be adopted by the end of December, deliberately before the voting of the Verkhovna Rada and the Congress of Judges. The current version of the draft law, which does not solve the problem of political appointments to the Constitutional Court, can be adopted as early as next week, on December 13. If that happens, and the five appointees of the Verkhovna Rada and the Congress of Judges are pro-government, then starting this spring, for the next nine years, the President’s Office will have a loyal Constitutional Court with its "correct" decisions just a phone call away. These judges will adopt decisions regarding the most important reforms in the country: anti-corruption, judicial etc. Ultimately, the Constitutional Court will decide whether elections can be held immediately after martial law ends.
The way out of the situation is obvious. In selections for the HCJ and HQCJ, a model is currently used where international experts (from outside the Ukrainian context and without connections to our political elites) block candidates of low integrity to the main judicial governance bodies. These competitions are already showing unprecedented results. On the other hand, there is no such counterbalance to political influence in the model of the selection of judges of the Constitutional Court. Therefore, the solution would be to add a seventh member from among public experts with an impeccable reputation to the composition of the Advisory Group for the selection of candidates for the CCU, who could balance the political appointees. Unfortunately, the authorities refuse even to discuss this idea, realising that in this way, they will lose control over the competition, which they cannot allow.
As a result, the adoption of draft law № 7662 in its current version not only does not solve the problem of political dependence of judges of the Constitutional Court but also contributes to the continuation of the practice of political appointments. The Constitutional Court will continue to make politically motivated decisions in the most important aspects of public life. The previous puppet composition of the CCU ended with the crisis of 2020 and the need for radical reform. Currently, Ukraine has a historic choice: either to conduct it properly, or to lose this chance, to endanger the democratic system, the principles of the rule of law, and its European future.