The Venice Commission on the Constitutional Court of Ukraine: serious reform is needed, judges should be selected by international experts and the public

We received the second urgent Opinion of the Venice Commission today, in which the Commission gives recommendations on the reform of the Constitutional Court.

In short, the essence of the Opinion is as follows: the Constitutional Court is in need of serious reform, first of all, a change in the procedure for appointing judges. The Commission considers that new judges can only be appointed under a new procedure, with international and public experts playing an important role in this process.

In the Opinion, the Venice Commission addresses many issues related to the activities of the Constitutional Court. However, the main emphasis of the Council of Europe experts is on the composition of the Court.

The Commission emphasises that the quality of the decisions of the Constitutional Court directly depends on who is appointed to this body. Despite the fact that in 2016 the constitutional amendments introduced the principle of competitive selection of the judges of the Constitutional Court, there is a widespread perception that appointments are too often politically motivated. Therefore, it is necessary to change the procedure for appointing judges of the Constitutional Court.

The Commission proposes to set up a qualification commission, which could include international human rights experts (e.g. former presidents or judges of the European Court of Human Rights) and participation from civil society (e.g. members of the Public Integrity Council).

This commission should screen all candidates for the office of judge of the Constitutional Court to ensure the moral qualities and recognized level of competence, as the Constitution requires. Only candidates approved by the commission will be appointed by the President, the Parliament, and the Congress of Judges as judges of the Constitutional Court. Alternatively, the commission can only recommend candidates for appointment.

The Venice Commission also noted that political bodies must not be allowed to terminate the powers of individual judges of the Constitutional Court (as proposed in Zelensky’s draft), except through special procedures where this is established by the Constitution.

The Commission has made it clear that it considers that a new appointment procedure should be adopted without delay and the current vacancies at the Constitutional Court should be filled only under the new procedure. At the same time, in the future, the Commission recommends that judges of the Constitutional Court should be elected by the Parliament with a qualified majority (for example ⅔ votes). However, it requires amendments to the Constitution.

In another part of the Opinion, the Commission draws attention to the issue of conflict of interest and disciplinary sanctions of judges. According to the experts of the Commission, the Parliament should establish disciplinary sanctions for judges of the Constitutional Court who refused to comply with the requirements for recusals. Requirements for the disciplinary procedure should be regulated in the law, with further details set out in the Rules of Procedure of the Constitutional Court.

“This is the second clear and strict Opinion of the Venice Commission on the Constitutional Court. The style and speed it was issued show that the Commission is aware of the seriousness of the situation.

It is also important that the opinions of the Commission and the Ukrainian expert community on the procedure for forming the Constitutional Court coincide. The number 1 task is to introduce a new procedure for appointing judges with the participation of independent international experts and civil society,”

– commented Mykhailo Zhernakov, Head of Board of the DEJURE Foundation.