Raider Takeover of the Constitutional Court: What Is Wrong with the Adopted Draft Law No. 7662 and How to Fix It?

On December 13, the Ukrainian parliament – the Verkhovna Rada – passed in its entirety draft law No. 7662, which the deputies described as advancing European integration. Indeed, the reform of the appointment of judges of the Constitutional Court of Ukraine (hereinafter – the CCU) is a priority among the seven requirements related to Ukraine’s obtaining candidate status and the opening of EU accession negotiations. However, public experts have repeatedly warnedthe society that in the form in which this draft law was prepared for the second reading, it is a direct path to establishing full control over the Constitutional Court by the political authorities.

What is wrong with political appointments to the Constitutional Court?

In Ukraine, all presidents have always tried to take control of the Constitutional Court by appointing “their” people there. For example, Yanukovych achieved significant success in doing so – he forced several judges to resign and instead appointed some persons loyal to him. Then upon his request the obedient CCU returned the 1996 edition of the Constitution providing super-broad powers of the president. The practice of political appointments to the Constitutional Court eventually ended up with the crisis of 2020, when it virtually canceled electronic declaration. The next day protesters burned tires under the CCU building.

After that, the Venice Commission, at the request of President Volodymyr Zelenskyy, recommended Ukraine to reformthe sphere. In their opinion, the introduction of a transparent appointment procedure for the CCU judges should be the way out of the crisis. This procedure was meant to have resulted in a professional and impartial composition of the Constitutional Court and the same decisions of the judges.

Since 2016, Article 148 of the Constitution of Ukraine stipulates that the appointment of CCU judges is carried out according to the results of competitive appointment. Still, real competitive procedures had never been enshrined in laws, until the voting of draft law No. 7662 took place.

What the draft law No. 7662 offers

The content of the draft law, which the parliament adopted, is also about the procedure for appointing CCU judges. However, it is designed in such a way that only those who will be in favor of the political authorities and whom it actually controls will be able to pass the appointment.

The draft law provides for the creation of an Advisory Group (AG) of six experts, namely a selection commission to check candidates. It will include three independent experts delegated by our international partners – similarly to the Ethics Council, which selects members of the High Council of Justice (HCJ), another important body in the judicial system. Three more experts will be chosen among representatives of the authorities. The problem is that the delegates in power, as shown by the latest competitions (for instance, to appoint the head of the Specialized Anti-Corruption Prosecutor’s Office of Ukraine), will act in the best traditions of Ukrainian political culture, and representatives of international arena will not have a predominant voice to block their political decisions.

It will work as follows. For example, an unequivocally unscrupulous candidate (say, Tupytskyi), a real agent of change, and a “dark horse” about whom little is known submit to take part in the competition. The former is blocked by independent international experts to the applause of the public and international partners. And then, when “the main threat has already been eliminated,” the real show begins. Pro-government members of the AG declare that, in their opinion, the independent candidate “does not have sufficient qualifications” or something else is wrong with him/her. Accordingly, only the “dark horse” who is to become a judge of the CCU has a chance to receive the majority of votes. Most likely, this is a person without significant problems with property and a sharply negative track record in state authorities, for which he/she could be “banned” by representatives of international arena. Still, this person has sufficient connections with political power. As a result, the “dark horse” may well turn out to be a “wolf in sheep’s clothing.” However, we will learn about such a background only from the votes of this judge appointed for nine years and impossible to dismiss.

An alternative to the abovementioned situation could be the model of the majority vote of independent experts, which, unfortunately, is not provided for in the newly adopted draft law on the CCU. Despite this, this model has proven itself as best as possible in competitions for positions in other state bodies. For instance, the already mentioned Ethics Council is operating – it is filtering out unscrupulous candidates for the High Council of Justice (the body that appoints and dismisses judges). Its activities are already showing unprecedented results: in August 2022, Euromaidan activist, lawyer, and former member of the Public Council of Integrity Roman Maselko became a member of the High Council of Justice. Under other circumstances, without the work of the Ethics Council, such a thing would have never been possible, and Pavlo Vovk along with other judicial mafia would have once again influenced the appointment to the High Council of Justice. The Ethics Council also consists of six members, but the three representatives of international arena have a casting vote if they agree among themselves on the decision.

Our society has repeatedly seen how judges are appointed by the presidential commission without the participation of independent experts. For example, in November 2021, it unanimously recommended Oleksandr Sybiha to the CCU. His daughter was living in Moscow at that time, and public organizations reported that Sybiha did not declare a residential building in Kyiv with a total area of 719.5 square meters and a Porshe Cayenne car. The presidential commission did not see a problem in these facts, though.

Why draft law No. 7662 was adopted

The president’s office systematically replenishes the court with loyal individuals, which already raises questions about the unbiasedness of their decisions. In particular, this summer, the parliament appointed Olha Sovhyria, who was a deputy from Servant of the People party, as a judge of the CCU. Viktor Kychun, a friend of the president’s representative in the CCU, Fedir Venislavskyi, also works under the parliamentary quota at the Constitutional Court. Two judges, Oksana Hryshchuk and Oleksandr Petryshyn, are appointed by the president himself. Their appointment on November 26 took place with significant violations: at that time there were no vacant seats in the Constitutional Court under the president’s quota at all since the constitutional term of office of judges Tupytskyi and Kasminin had not expired at that time. In addition, Oleksandr Petryshyn was appointed despite the obvious conflict of interests, based on the results of the same “competition,” the winner of which was Oleksandr Sybiha.

In total, according to the DEJURE Foundation, the president’s office already controls five judges, but this is obviously not enough. On December 6, at a special session of the Constitutional Court, three judges, Iryna Zavhorodnia, Serhii Sas, Ihor Slidenko, appointed under the parliamentary quota were dismissed. Accordingly, the Verkhovna Rada will appoint new judges. There, the Servant of the People faction has a mono-majority and, obviously, can nominate “its” candidates in turn, if, of course, it is not hindered by a “way too” independent commission.

Two more judges of the CCU will be appointed by the Congress of Judges next year according to their quota. And despite the fact that one of the pillars of the judicial mafia, Kyiv District Administrative Court, was liquidated a few days ago, its influence on the processes remains significant. Therefore, the Congress of Judges will keep the tendency to make political arrangements.

Draft law No. 7662 has already been adopted in the parliament, so now it is awaiting the President’s signature, after which it will be published and enacted. If this happens, we can expect more than just an imitation of the competition to the Constitutional Court, already seen before. Now all this will be done under the slogans of European integration, and the window of opportunity for change will close for a long time, because judges to the CCU are appointed for to nine years.

The updated conclusion of the Venice Commission: a new glimpse of hope

The reform of the Constitutional Court, in addition to having a decisive influence on life inside the country, is also a key requirement for European integration. It is directly mentioned as number one among the seven priorities, failing to fulfil which it is impossible to open negotiations on our accession to the EU. That is why our international partners are really closely monitoring the fulfillment of this obligation.

However, a special role in the process this time was given to the Venice Commission. It is on the basis of its recommendations that the procedure for appointing judges of the CCU should be changed, according to the decision about our candidacy of the European Commission and the European Council.

However, this is not the first time that the experts of the Venice Commission have addressed this issue. Back in 2020, the Venice Commission, at the request of President Zelenskyy, voiced the same talking points in its conclusion about the real competitive procedure in the CCU: a commission independent of politicians should be created, which would consist of international experts (by analogy with the reform of other judicial bodies) and public representatives (for example, delegated by the Public Council of Integrity). After that, it reiterated what it said twice more, in its other two decisions.

The latest document of the Venice Commission, however, somewhat changes positions. The urgent conclusion, adopted specifically for the second reading of the draft law, contained obvious factual errors and, accordingly, reached false conclusions. We will never know what has led to it – the urgency of preparing the conclusion or the desire to support the government in wartime. However, this clearly did not benefit the reform and European integration.

For the political forces interested in making the court dependent, it was the best gift as they significantly worsened the text of the project before the second reading. But the draft law did not correspond to even this version of the Commission’s conclusion. In particular, in its conclusion, the Venice Commission recommended to add a seventh member to the composition of the commission under the quota of international experts. After that, a group of G7 ambassadors called on the deputies to adopt such a version of the draft law, which would provide for a majority vote for independent experts in the AG. However, the parliamentary committee on legal policy ignored these recommendations during the preparation of the draft law for the second reading, and so did the chamber during the vote as a whole, giving it 245 votes.

However, just three days after that, a plenary session of the Venice Commission took place, at which it took an unprecedented step and changed its conclusion. More precisely, it adopted a new, so to say, complete conclusion instead of approving the previously adopted urgent one by the decision of the plenary session. Such a case in the Commission regarding Ukraine had happened only once before, and this demonstrates the special weight of the changes that were adopted in Venice.

This time, the Venice Commission stated as clearly as possible that there must be a seventh member in the AG, and he/she must be under the quota of independent international experts.

Ignoring this recommendation would mean that the Ukrainian authorities are deliberately ignoring the conclusions of key international partners, as well as fulfilling their priority commitment to gain control over the Constitutional Court. It will not go unnoticed.

Instead of conclusions

Draft law No. 7662 in its current version not only does not solve the problem of political dependence of CCU judges, but also contributes to the continuation of the practice of political appointments. The updated, but still controlled, Constitutional Court will continue to make politically motivated decisions regarding the most important aspects of public life – early and regular elections, post-war reconstruction and reintegration, EU and NATO accession, and relevant amendments to legislation and the Constitution. This poses a threat not only to reforms and democracy in the country, but also to European integration.

Now, during the war, our international partners are very reluctant to criticize the Ukrainian authorities, and this is understandable. But the time is not far off when both the European Commission and the EU member states will assess Ukraine’s progress in reforms not by impassioned speeches and ticks in front of the names of draft laws, but by the real state of affairs. And the EU, already taught by the bitter experience of other Central and Eastern European countries with problems in the rule of law, can come up with many formal reasons not to accept another country with a politically dependent Constitutional Court.

Therefore, Ukraine now has a historic choice – either to carry out the judicial reform as it should be done, or to lose the chance that occurs once in a decade, to endanger the democratic system, the principles of the rule of law and its European future.

The deputies have already said their word, putting narrow party interests above the interests of the country.

This time, Ukrainians address guarantor of the Constitution, rights and freedoms, and the Euro-Atlantic course President Zelenskyy. They ask him to veto any attempt to significantly deviate from the course and correct the mistakes.

Will the president hear them?

Read this article in russian and Ukrainian.