The reform of Ukraine’s Constitutional Court docket has been positioned on the coronary heart of the reforms the nation should undertake to advance on its EU path. Nevertheless, the Venice Fee’s newest opinion on the Court docket felt like a stab within the again, containing factual errors and doubtful conclusions, write Halyna Chyzhyk and Mykhailo Zhernakov.
Halyna Chyzhyk is the judicial reform advocacy lead at Anti-Corruption Motion Centre. Mykhailo Zhernakov is the co-founder and chair of the board of DEJURE Basis.
In June, the EU member states voted to grant the EU-candidate standing to Ukraine. It was a powerful act of help in face of brutal Russian aggression and recognition of Ukraine`s steady reform achievements.
Importantly, by recommending the checklist of seven reforms that need to be applied to open accession negotiations the European Fee launched an efficient framework for additional reforms promotion. The reform of the Constitutional Court docket of Ukraine was put within the first place.
Civil society pushing for real reform of the Constitutional Court docket celebrated the EC choice. We believed that with such highly effective help from our worldwide companions we’ll lastly handle to make sure the independence and integrity of Constitutional judges. Nevertheless, the latest Venice Fee’s opinion felt like a stab within the again.
For the previous few years, the Constitutional Court docket (CC) in Ukraine has been recognized for its political dependence and allegations of corruption in addition to unreasonable and questionable selections.
For example, throughout 2019-2020 CCU with out correct reasoning abolished vital provisions of the anti-corruption reform placing in danger the EuroAtlantic route of Ukraine’s growth, which is foreseen by the Structure of Ukraine.
The issue lies within the composition of the Court docket. Failure to pick first rate professionals resulted in arbitrary selections taken by the CC.
In September, aiming at addressing the EU suggestions, the Parliament of Ukraine adopted within the first studying draft legislation №7662 introducing a aggressive process for choosing CC judges.
Particularly, it advised establishing an Advisory Group of Consultants (AGE) as a separate physique tasked with integrity {and professional} competence evaluation of the candidates.
The physique would include three members nominated by Ukrainian authorities (the President, Parliament and the Congress of judges) and three specialists nominated by worldwide companions of Ukraine, together with one member nominated by the Venice Fee.
The primary model of the draft advised that solely these candidates greenlighted by the AGE might be appointed to the CC. This, in addition to the involvement of unbiased specialists within the course of, was thought of one of many predominant ensures of integrity and independence of the Constitutional Court docket.
It’s value mentioning that the draft replicated the reform the Excessive Council of Justice adopted in Ukraine in 2021 based on the suggestions of the Venice Fee.
Nevertheless, we had been astounded to see factual errors and really doubtful conclusions reached by the specialists of the Venice Fee in pressing opinion on draft legislation №7662 printed on November 23.
Particularly, the Venice Fee advised that the selections of the AGE shouldn’t be binding for appointing authorities. In observe, this could enable the appointment to the Constitutional Court docket candidates of low integrity.
Moreover, the Venice Fee agreed to the politicisation of the method of number of CCU judges justifying it by “present circumstances”.
Whereas not naming what precisely these circumstances are and never explaining how they’re justifying the departure from its earlier suggestions the VC supported the involvement of political actors within the AGE.
Clearly, by “present circumstances”, the Fee means a full-scale Russian conflict in opposition to Ukraine.
Nevertheless, we imagine that within the circumstances of conflict, when threats to human rights and the constitutional order are particularly pronounced, and the specter of Russian affect on the CCU judges is excessive (which was already publicly acknowledged by the Nationwide Safety and Defence Council of Ukraine), the presence of an unbiased and politically impartial CCU is even of extra significance.
Thus, as a substitute of recommending lowering the political affect over the number of CC judges and strengthening the function of unbiased specialists within the course of, the Venice Fee supported the politicization of the method and advised dangerous amendments contradicting the targets of this reform.
For years the Venice Fee remained a dependable accomplice of Ukraine offering experience in assessing Ukraine’s post-Maidan rule of legislation reforms. The Fee confirmed nice consideration to element mixed with sure flexibility making an allowance for the state of the judiciary in Ukraine and the present political context.
This makes us doubt that the opinion of the VC on the reform of the Constitutional Court docket is an sincere mistake.
The truth that Ukrainian authorities instantly amended the draft implementing probably the most controversial suggestions of the VC makes us assume the specialists intentionally and consciously supported the institution of political management of the Constitutional Court docket in Ukraine weakening its democracy and resilience.
This may be additionally proved by future selections of the AGE if the knowledgeable nominated by the Venice Fee fails to meaningfully contribute to the number of unbiased and succesful candidates and groups up with members nominated by the political actors.
However, we nonetheless hope the Venice Fee will use the plenary scheduled for December 16, 2022, as a platform for clarifying its personal suggestions and stressing the significance of taking into account paragraph 57 of the opinion suggesting the inclusion of a seventh member to the AGE as an anti-deadlock mechanism.
In any other case, due to a excessive likelihood of seize of the Constitutional Court docket by the politicians, Ukraine will transfer additional away from democracy by legislation. Coincidentally, that is the precise reverse of what the Venice Fee guarantees to ship.
At the moment, whereas Ukrainian Armed Forces stand in defence of all European democracies, European establishments shall additionally acknowledge their duty for contributing to sustainable growth of democracy and rule of legislation in Ukraine.
