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17 may 2019

Constitutional News in Ukraine: New Chairman of the Constitutional Court elected due to early dismissal of a judge of the CCU

On May 14, for the first time in the history of independent Ukraine, the Constitutional Court of Ukraine dismissed from office Stanislav Shevchuk, a judge of the CCU who at that time was the Chairman of the Constitutional Court. The judge was dismissed for the commitment of material disciplinary offence, gross and systematic neglect of his duties, which is incompatible with the status of a judge of the CCU, and the Court revealed his inconsistency with the position on the basis of clause 3 of part two of Article 149-1 of the Constitution of Ukraine.

Fundamentally new and positive aspects of the adopted decision

Early dismissal of a judge of the Constitutional Court of Ukraine for the first time was grounded on the Conclusion of the Standing Committee on Rules and Ethics of the Constitutional Court of April 17, 2019. In fact, three judges of the CCU – S. Sas, I. Slidenko and M. Melnyk, took the liberty of starting the procedure for the dismissal of their colleague. On March 13 this year, they addressed the judges of the CCU with a substantiated letter on the need for the urgent application of strict legal measures in connection with the activities of the Chairman of the CCU, which are incompatible with the status of a CCU judge.

The previous practice of early dismissal of judges of the CCU for the oath breaking by the President of Ukraine and the Parliament was exclusively of a political nature and was used as a form of pressure on the judges of the CCU. Thus, the dismissal or threat of dismissal of judges was used as constant measures of pressure on the CCU. In order to influence the Constitutional Court and form a politically manageable structure, the Parliament and the President used their powers to dismiss the judges of the Constitutional Court, often exploiting the unsettled dismissal procedure for “violation of the oath” by a judge.

As noted in the analytical report of the Centre of Policy and Legal Reform and DRI of December 2017, “in numerous cases, the dismissal of judges of the CCU on the grounds of violation of the oath was carried out even without any explanations as to where exactly the subject of dismissal sees this violation.”

In order to understand the fundamentally new and positive character of the recent replacement of the CCU Chairman, it is worth recalling the dismissal of the CCU judges “on their own will” before the adoption of the Constitutional Court Decision of September 30, 2010, which amended the Constitution of Ukraine. In that situation, at the beginning of September 2010, within a few days, 4 judges of the CCU wrote a resignation application. In fact, this was due to political motives. Instead, the new judges of the CCU were quickly appointed, and Ukraine received an unconstitutional decision of the CCU of September 30, 2010, which changed the Constitution of Ukraine in the interests of the incumbent President Viktor Yanukovych, expanding his powers.

After the Revolution of Dignity and the escape of President Yanukovych to Russia on February 24, 2014, the Verkhovna Rada of Ukraine renewed the effect of the Constitution of Ukraine in the wording of 2004 and passed the Resolution “On Response to the Facts of Violation of the Oath by the Judges of the Constitutional Court of Ukraine”[1], whereby it dismissed the judges of the Constitutional Court of Ukraine A. Golovin, M Kolos, M. Markush, V. Ovcharenko, O. Pasenyuk, and offered the Acting President of Ukraine and the Council of Judges to release seven more judges of the CCU. The indicated grounds for dismissal was the violation of their oath by adopting the above-mentioned Decision No.20-рп/2010. However, the judges, whom the Verkhovna Rada of Ukraine proposed to dismiss, remained in their positions.

Moreover, yesterday, the Constitutional Court elected a new Chairman from those judges, who were not released for violation of the oath in 2014. It is also worth mentioning that today’s Chairman of the Constitutional Court voted for the abolition of criminal liability for illegal enrichment, which caused dissatisfaction of the Ukrainian society. Perhaps, in order for the CCU to realize that a CCU judge does not correspond to the position held, it should first elect her/him Chairman of the Court?

Consequently, in order to ensure the independence of judges of the Constitutional Court, the constitutional amendments of June 2, 2016, stipulated for the transfer of authority to dismiss the judges of the CCU from the subjects of appointment of the CCU judges (Parliament, President and Congress of Judges) to the CCU itself. Today it is worth noting that constitutional innovations worked out and for the first time the early dismissal of the CCU judge was motivated.

How should the CCU protect its independence?

However, we draw attention to the constitutional innovation about the new procedure for appointment of the CCU judges, namely the selection of candidates for the position of the CCU judge on a competitive basis (Part 3 of Article 148 of the Constitution of Ukraine), which is no less important for the formation of an independent and authoritative Constitutional Court. This provision does not work today. It was actually destroyed at the level of the Law of Ukraine “On the Constitutional Court of Ukraine” and the Rules of Procedure of the Verkhovna Rada, and the competitive selection was replaced by the political support of future judges.

Today, the Ukrainian Parliament should urgently undertake the task of ensuring the competitive selection of candidates for the position of the CCU judge by forming a single selection commission for all subjects of appointment of the CCU judges and abolish the mandatory political support of the future judges of the CCU.

Julia Kyrychenko, project manager on constitutional law, Centre of Policy and Legal Reform

Source: Ukrainian Liaison Office in Brussels

[1] Resolution of the Verkhovna Rada of Ukraine „On Response to the Facts of Violation of the Oath by the Judges of the Constitutional Court of Ukraine“ dated February 24,.2014 No. 775-VII: http://zakon2.rada.gov.ua/laws/show/775-18 (26.06.2017).