External control and loss of sovereignty: 5 myths about the reform of the Constitutional Court

This week, draft law No. 9225, which provides for further changes to the procedure for selecting judges of the Constitutional Court, was registered in the Verkhovna Rada. We have already explained why it does not correct previous errors in the procedure but only worsens it. In this article, we dispel the myths used by opponents of the CCU reform.

Myth 1. The participation of foreigners in the selection of judges of the CCU threatens our sovereignty.

Firstly, it is not the first time that foreigners have been involved in order to neutralise political influence on the selection of candidates for key institutions. This has been evidenced in past selections for the HACC, HCJ, HQCJ, NABU, and SAPO. Secondly, international experts have previously taken part in the selection of the Constitutional Court judges, participating in the presidential selection commissions under the administrations of both Volodymyr Zelensky and Petro Poroshenko.

Myth 2. The Venice Commission demands that judges of the Constitutional Court be appointed by international experts.

The Venice Commission only states that the procedure for selecting and appointing judges is highly politicised, and this leads to a dependent Constitutional Court. Therefore, it suggests that candidates are selected by a commission that will be independent of political influences. Given the positive outcomes of the involvement of independent international experts in the selection of the HCJ, HQCJ, and HACC, it has been proposed that foreigners should play a substantial role in the Advisory Group of Experts (AGE), responsible for selecting judges of the Constitutional Court.

Furthermore, the President, the Verkhovna Rada and the Congress of Judges will still make final decisions on the appointment of judges of the Constitutional Court. The AGE will only select candidates and recommend for appointment only those with high moral and professional qualities. Moreover, the AGE must give the appointment body at least two candidates for each vacancy, thus providing the appointment body with a range of options to choose from. Ultimately, it is up to the President, the Parliament, or the Congress of Judges to decide whether to appoint the recommended candidates or not. If they opt not to proceed with any of the recommended candidates, a new competition will be held.

In the end, the addition of a seventh member to the AGE undermines any concerns regarding “external control,” as the legislation can mandate that international partners appoint a Ukrainian citizen as the seventh member. This provision effectively eliminates any apprehensions that the authorities may have regarding foreign influence in the selection process.

Myth 3. There is no need for a seventh member in the AGE because the model of 3 foreigners + 3 Ukrainians already works, as the Ethics Council showed.

Unfortunately, this model shows positive results in only 50% of cases. It worked in competitions for SAPO and HQCJ but had mixed results in the case of the HCJ and NABU. In the latter, not the three best candidates made it to the finals, but those on which international experts and Ukrainians reached a compromise.

The main reason is that international experts rarely used their casting vote. They did not want to confront Ukrainian colleagues and harm further cooperation. Given the significance of the CCU reform and its pivotal role in the rule of law, it is imperative that any prospect of the AGE failing in a similar way is precluded.

The elegance of the inclusion of the seventh member in the Advisory Group is that independent experts delegated by Ukraine’s international partners will no longer be forced to compromise with appointees from the Parliament, the President, and the Congress of Judges to reach an agreement or invent different strategies to promote decent candidates. It is essential that the so-called “political” members of the commission will not be able to sabotage or block the work of the entire AGE.

Myth 4. The Venice Commission supported the model without the seventh member of the AGE.

No, it didn’t. In its opinion, the VC stated without an alternative that the composition of the AGE should be increased to seven, and this seventh member should be delegated by international partners. In a letter addressed to the Speaker of the Parliament, the President of the Venice Commission appears to inadvertently reference the possibility of a “six-member” model, which its apologists immediately seized on. It is important to note, however, that this letter does not constitute an official opinion of the entire Venice Commission, which is referred to by the European Commission and the European Council, and cannot replace it.

Myth 5. The reform of the CCU is done under the pressure of the EU. Ukraine does not need it.

Indeed, the CCU works “without problems”. And what about the abolition of criminal liability for false declaration? And is the deprivation of the NACP of a key authority and the subsequent crisis of 2020 a pure coincidence? The fact that President Zelensky sought recommendations from the Venice Commission regarding the CCU reform indicates the need for reform. However, ensuring that the reform efforts are successful on the first attempt is crucial.