We call on the Venice Commission and the EU not to push Ukraine towards an excessive concentration of power

The Venice Commission and the European Commission may soon approve the Constitutional Court reform model, which contradicts the previous position of these institutions and the insistence of Ukrainian NGOs and will retain political control over the selection of its judges. Such a decision will pave the way for further concentration of power, undermine the historical leverage of the European Union’s influence on Ukrainian reforms and send a clear signal to Ukrainian politicians: the EU and the Venice Commission can be easily manipulated while seizing key democratic institutions under the guise of European integration reforms.

On April 19 of this year, the MPs registered draft law No. 9225, which, instead of taking into account the recommendations of the Venice Commission, further strengthens the political influence on the selection of judges of the Constitutional Court. The draft law not only does not add a seventh member to the Advisory Group of Experts (AGE), as the Venice Commission strongly recommended but also increases the influence of political players. The AGE’s decision cannot be adopted without the participation of 5 out of 6 of its members. Thus, a candidate can be recommended for appointment to Constitutional Court only if this decision is supported by at least two members of the AGE appointed by Ukrainian political authorities.

The introduction of a new procedure for the selection of judges of the Constitutional Court, which guarantees the independence of appointed candidates and complies with the recommendations of the Venice Commission, is condition No. 1 in the list approved by the European Council in June 2022 for Ukraine’s further progress towards membership in the European Union.

In November last year, the Verkhovna Rada already adopted a law, according to which the selection will be carried out by an independent AGE, which will include three international experts and three persons appointed by the Parliament, the President and judges. However, such a law does not meet the recommendations of the Venice Commission, as it maintains political influence on the process. The Commission clearly stated in its opinion CDL-AD(2022)054 that this influence would be neutralised if the seventh member recommended by international organisations is included in the composition of the AGE. Finally, both the Venice Commission and the EC at the beginning of the year demanded amendments to the law that would add a seventh member to the AGE.

The approval of the draft law by the EC and the Venice Commission, which clearly contradicts their previous requirements and recommendations, will be evidence of political bias and will definitely cast a shadow on the image of these organisations in the eyes of Ukrainian society, for which the principles of democracy and mechanisms of checks and balances are especially valuable now.

We, independent NGOs that have been working on the European integration of Ukraine and institutional reforms for many years, call on the European Commission and the Venice Commission not to approve draft law No. 9225 and any similar model that does not comply with the opinion CDL-AD(2022)054 and preserves political dependence of the Constitutional Court.

DEJURE Foundation
AntAC
European Pravda
Statewatch
CHESNO Movement
Institute of Legislative Ideas
Automaidan
New Europe Center
NGO ANTS
ZMINA Center for Human Rights
Centre for Economic Strategy