Venice Commission upholds Constitutional Court’s decision not to swear in the judges appointed by Volodymyr Zelensky

The Venice Commission upheld the Constitutional Court’s decision not to swear in two judges appointed by President Volodymyr Zelensky. This is stated in the Synopsis of December 13, 2021, on the results of the 129th plenary session of the Venice Commission, which took place on December 10-11.

According to the Synopsis, the Venice Commission “welcomed the decision of the Constitutional Court of Ukraine in respect of the swearing in of two newly appointed judges of the Court”. This refers to the Resolution of the Constitutional Court on the issue of swearing in the judges of the Constitutional Court of Ukraine, appointed by decrees of the President of Ukraine of November 26 № 596/202, № 597/2021. In the resolution, the Constitutional Court in fact refused to swear in the newly appointed judges Oksana Hryshchuk and Oleksandr Petryshyn before vacant positions in the Constitutional Court arose.

“By supporting the Constitutional Court, the Venice Commission has, in fact, recognized that postponing the swearing-in of judges of the Constitutional Court is the only way to avoid a real constitutional crisis. This institution has managed to resist the arbitrary decision of the President, which could lead to a complete loss of legitimacy by the Constitutional Court. But the very fact that the President can appoint judges to the Constitutional Court in an unconstitutional way suggests that there is a problem. Until a new procedure for selecting judges of the Constitutional Court with a single qualification commission is introduced, as recommended by the Venice Commission and public experts, the President will continue to be able to undermine the legitimacy of this body.”

– said Stepan Berko, Advocacy Manager of the DEJURE Foundation.

In March, President Zelensky issued a decree “revoking” the appointment of two judges of the Constitutional Court – Oleksandr Tupytsky and Oleksandr Kasminin. In August, the President launched a competition for the Constitutional Court under his quota. 18 candidates were admitted to the interview stage.

The civil society has repeatedly called on Volodymyr Zelensky not to appoint judges of the Constitutional Court to non-existent vacancies, and judges of the Constitutional Court not to swear in newly appointed judges.