Mobilization, elections, natural resources: the Constitutional Court is back in play and the stakes are sky-high

Mykhailo Zhernakov, Executive Director of the DEJURE Foundation
Karina Hasymova, Advocacy Manager at the DEJURE Foundation
for Ukrainska Pravda

On June 27, the President of Ukraine appointed former OSCE Project Coordinator in Ukraine, Oleksandr Vodyannikov, as a judge of the Constitutional Court. At last, the minimum quorum of 12 judges has been restored, and the Court can resume its work.

Since January, the Court had been paralysed due to the resignation of three judges, leaving only 11 out of 18 members. So it may seem like a victory — the Court can finally start reviewing important constitutional cases. However, the real challenges are only beginning.

In the near future, the Constitutional Court may be called to consider issues that will affect the fate and, in some cases, even the very existence of Ukraine. These include complex and sensitive topics caused by the war: the constitutionality of holding elections during wartime, the legal basis for mobilisation, or a potential agreement with the United States (or other countries) on the joint use of mineral resources. All of these are high-stakes political matters. And it is the Constitutional Court that has the power to issue the final verdict.

So what was behind the loss of quorum at the Constitutional Court, and what urgent issues might soon appear on the agenda of this now-functional body? Let’s take a closer look.

The role of the Constitutional Court in state life

The Constitutional Court of Ukraine reviews the constitutionality of laws, examines motions submitted by members of parliament, and considers constitutional complaints from citizens. It serves as a guarantor of the constitutional order and the system of checks and balances in the country.

At key moments in Ukraine’s recent history, the Court has played a decisive role. For example, in 2021, it ruled the law on the state language to be constitutional, thereby strengthening the position of the Ukrainian language and weakening pro-Russian forces. But there have also been failures. In 2020, a politicised Court, at the initiative of 48 MPs, nearly destroyed the electronic asset declaration system, triggering a constitutional crisis. This forced Ukraine’s government, together with European partners, to revisit the rules for appointing judges.

An independent competition instead of backroom appointments

Reforming the procedure for selecting Constitutional Court judges became the first of seven EU requirements for granting Ukraine candidate status. In 2022, work began on the reform. A competitive procedure replaced backroom political appointments, with international experts playing a key role.

While the initial steps were promising, the political leadership once again slowed the process down. For over three months, the President’s Office failed to appoint any of the candidates proposed by the Advisory Group of Experts (AGE), leaving the Court unable to function due to a lack of quorum. Only with the appointment of Oleksandr Vodyannikov has the Court formally resumed operations.

Still, six seats remain vacant. The Congress of Judges has been unable to fill two of them, as their nominated candidates do not meet the criteria of high moral character—there is a lack of candidates with integrity. Four more vacancies remain unfilled by political bodies, despite candidate lists submitted by the AGE. These positions are the responsibility of the Parliament and the President’s Office.

Such delays give the impression that the political leadership is deliberately avoiding the appointment of independent candidates. Ukraine’s path to EU membership is already challenging, so it is critically important to show the ability to fulfil its promises swiftly and effectively. Delays in appointing independent judges signal that someone benefits from keeping the Constitutional Court either nonfunctional or under control, especially with high-stakes cases on the horizon.

Wartime challenges facing the country

One of the most sensitive potential issues, not yet submitted to the Constitutional Court but likely to arise, is the legality of holding elections during wartime. Can presidential or parliamentary elections be held while martial law is still in effect and millions of citizens remain in occupied territories or abroad?

The Constitution explicitly forbids amending its provisions during martial law, but it does not directly prohibit elections. At the same time, the realities of war, from limited opportunities for campaigning and voting to the lack of a unified electoral register for internally displaced persons, cast doubt on the possibility of a genuine, equal, and free expression of will. The occupation of parts of the country and ongoing security risks also undermine the democratic legitimacy of any election.

More than 130 civil society organisations have already warned that holding elections without adequate preparation and lasting peace could lead to deep societal destabilisation. If political or security circumstances nonetheless force the country into an election process, the Constitutional Court will have to answer: are elections permissible under such conditions, and if so, under what legal safeguards?

Another sensitive issue is the legal basis for mobilisation. Since 2022, Ukraine’s mobilisation legislation has been in constant flux — from defining who is subject to conscription to outlining deferral grounds and the role of military medical commissions. These areas require a careful balance between national security and citizens’ rights.

The Court may also be asked to rule on a future agreement between Ukraine and the United States on the joint use of mineral resources. Despite its clear economic benefits and international support, such an agreement could face constitutional challenges. Concerns may arise regarding its compatibility with constitutional provisions that enshrine the Ukrainian people’s exclusive right to natural resources and the procedures for their use.

Such cases can only be properly considered if the Court has a stable composition. A minimum of 10 votes is required to adopt a decision by the Grand Chamber. So, in order to protect positive reforms in the country or repeal unconstitutional provisions of laws, it is easier to get ten votes out of 18 than 12. Moreover, judges’ vacations or sick leave could once again paralyse the Court’s work.

Cases already awaiting decisions

The risk of reform rollback is not hypothetical — it is already a real threat. One example is the case concerning the constitutionality of the Law “On the High Anti-Corruption Court” (HACC), which has been pending before the Constitutional Court for years without a ruling.

One of the arguments against it is that the involvement of international experts in the selection of judges allegedly violates Ukraine’s sovereignty. This reasoning, masked as a legal technicality, actually strikes at the core of Ukraine’s anti-corruption infrastructure. If the Constitutional Court rules that international involvement in the creation of the HACC is unconstitutional, it will call into question the legitimacy of the entire anti-corruption framework. Most importantly, it would pave the way to cancel other competitions with international involvement, including the selection of Constitutional Court judges.

And this seems to be exactly what some politicians seeking to retain manual control are trying to achieve: a recent submission to the Court, initiated in part by pro-Russian MPs and some members of the “Servant of the People” party, essentially challenges the participation of international experts in all judicial selection procedures. The very involvement that was agreed upon with European partners. The same mechanism, without which Ukraine would not have received candidate status for EU membership. Ninety NGOs have already called for preserving and extending international expert participation in selection commissions.

Other attacks on key reforms include a motion to cancel the medical reform, initiated in 2018 by MPs affiliated with the now-banned Opposition Platform–For Life party. Formally, the motion questioned the constitutionality of the new healthcare financing model. In reality, it undermined the foundation of a reform that, for the first time, attempted to centre the healthcare system around the patient. In 2020, the Constitutional Court continued its consideration of the case, amid the pandemic, as the healthcare system was transitioning to market principles. At the end of 2021, a similar motion was submitted by the Ukrainian Parliament Commissioner for Human Rights.

Though this case has been gathering dust for years, these motions could soon be considered by the Court. If so, the future of healthcare service financing and gains in accessibility could either be protected or dismantled.

Another “shelved” case involves the land market. The authors of the constitutional motions, again including pro-Russian figures, seek to block the land reform through the Constitutional Court. The same land reform that Ukraine adopted after decades of political battles and obstruction. In 2020, the Court consolidated several such motions into a single proceeding, but has yet to deliver a final decision.

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The appointment of Oleksandr Vodyannikov seems like a necessary but only initial step in the right direction. Yes, the Constitutional Court now formally has a quorum and can operate. But quorum does not equal full capacity to issue rulings, especially given the sensitivity and political weight of the cases now before it. In a situation where one or two votes could be decisive, a minimally staffed court carries the risk of ongoing instability and potential paralysis.

Therefore, new judicial appointments are not just bureaucratic formalities — they are a matter of national interest. If the authorities continue to delay the appointment of candidates selected through a transparent procedure agreed upon with the EU, it will be more than a domestic failure. It will send a signal to our European partners: Ukraine is unable to implement even the reforms it promised as a condition for candidate status.

For Ukrainians, EU membership is no longer just a political dream but a matter of survival. A reputation for only pursuing reform “under pressure” threatens the sustainability of Ukraine’s strategic course and, with it, the support and protection of our future.