At a huge cost, the Ukrainians achieved and continue to fight for their place in the fellowship of developed European nations. On June 23 of this year, the European Council granted Ukraine the status of a candidate for European Union membership. This historic decision is a recognition of the aspirations of Ukrainians to live with dignity and in accordance with European values, reinforced by the institutional reforms of recent years.
Having granted Ukraine the status of a candidate for EU membership, the Union at the same time set a number of requirements that Ukraine must fulfil in order to maintain this status. The first among them is the successful implementation of the reform of the Constitutional Court. Particularly, Ukraine should adopt and implement legislative changes regarding the procedure for the selection of judges of the Constitutional Court, which would ensure the preliminary selection of judges with a check on integrity and professional level in accordance with the recommendations of the Venice Commission.
The urgent need to reform the Constitutional Court became evident when, in the fall of 2020, it made a scandalous decision on the unconstitutionality of the electronic declaration system for officials, thereby jeopardising the visa-free regime with the EU. Then, at the request of President Zelensky, the Venice Commission provided its recommendations regarding the reform of the Constitutional Court.
The Venice Commission recognised the procedure for appointing judges of the Constitutional Court as a key problem. The Commission emphasised that despite the fact that in 2016 the Constitution introduced competitive selection for the position of judges of the Constitutional Court, there is a general feeling that the appointment of judges is mostly politically motivated. That is why, according to the Venice Commission, the procedure for appointing judges of the Constitutional Court should be changed.
The Venice Commission recommended the establishment of the qualification commission that would include international experts on human rights protection (for example, former presidents or judges of the European Court of Human Rights) and representatives of civil society (for example, members of the Public Integrity Council).
On August 12, the draft law № 7662 “On Amendments to Some Legislative Acts of Ukraine on Improving the Procedure for Selecting Candidates for the Position of Judge of the Constitutional Court of Ukraine on a Competitive Basis” was registered in the Parliament. It proposes to establish the Advisory Group of Experts that would check all candidates for the Constitutional Court.
On September 6, the Parliament adopted this draft law in the first reading, which should be welcomed as the first step towards fulfilling the EU’s priority requirement and the recommendations of the Venice Commission. However, some of its provisions do not correspond to the recommendations of the Venice Commission and therefore threaten the fulfilment of EU requirements regarding Ukraine’s candidate status.
The draft law specifies that the group will include 6 members: one from the Verkhovna Rada, one from the President and one from the Congress of Judges of Ukraine, one member from the Venice Commission and two members delegated by international organisations that provide assistance to Ukraine in reforms of the rule of law.
Such a composition of the Advisory Group of Experts contradicts the recommendations of the Venice Commission because it does not foresee the participation of representatives of civil society.
In this regard, there is a risk of recognising the draft law as not meeting the requirements for Ukraine to obtain and maintain the status of a candidate for EU membership.
The inclusion of representatives of civil society is a logical and necessary step to ensure the transparency of the selection process of judges of the Constitutional Court and, as a result, the formation of the Constitutional Court, which is trusted by society. The lack of transparency leads to undesirable consequences, which in the conditions of war can be devastating for the Ukrainian state.
In this regard, we call on the MPs to introduce amendments to the draft law to ensure the inclusion of two representatives of civil society in the Advisory Group of Experts during the preparation of the draft law № 7662 for the second reading. In our opinion, these representatives should be delegated by the Public Integrity Council (PIC). If, at the time of formation of the Advisory Group of Experts, the plenipotent composition of the PIC is not formed, the right of delegation should be vested in the meeting of the last composition of the PIC.
We also call on the Speaker of the Verkhovna Rada of Ukraine to turn to the experts of the Venice Commission with a request to provide their opinion on draft law № 7662 in order to take into account their recommendations and, accordingly, ensure the fulfilment of the requirements to maintain the status of a candidate for EU membership.
We hope that with the joint efforts of the MPs and civil society, we will be able to introduce such a model for the selection of judges of the Constitutional Court, which will not only bring Ukraine closer to EU membership but also guarantee Ukrainians proper protection of their rights and the Constitution.