21 лютого 2018

4 positions in the Constitutional Court remain vacant for a long time, 2 - by the Verkhovna Rada and 2 - by the President

Expert opinion

4 positions in the Constitutional Court remain vacant for a long time, 2 - by the Verkhovna Rada and 2 - by the President. The President does not appoint 2 judges of the Constitutional Court at his quota, without any arguments. Thus, in accordance with the Competition conditions  for the vacancies of judges of  the Constitutional Court of Ukraine approved by the Minutes No. 1 of the session of the Commission on the selection of candidates for the position of a judge of the Constitutional Court of Ukraine for persons appointed by the President of Ukraine dated 18 October 2017, the selection procedure started on 19 October and ended on 19 December 2017. In view of this, the President had to appoint the judges of the CCU at his quota back in the end of December.

Respective authorities counter-point/argument

The public position of the President is missing.

Related legislation/instructions which require the authorities act in a certain manner

In accordance with paragraph 22 of Part 1 of Article 106 of the Constitution of Ukraine, the President appoints a third of the composition of the Constitutional Court (6 judges). In June 2017, two vacant positions of judges of the CCU were created under the President's quota. Before December 2017, the delay in the appointment by the President of new judges of the CCU was due to reasonable requirements for theimplementation of constitutional amendments adopted in June 2016 - the need for adoption of a new Law "On the Constitutional Court of Ukraine" and the conduct of a competitive selection of candidates for the positions of the judges of the CCU. As of today, this condition has been met: the Parliament adopted a new law in July 2017, and the competition committee established by the President conducted a competitive selection, which resulted in the election of 6 candidates in December 2017.

Therefore, currently the President without any arguments deliberately delays the appointment of judges of the Constitutional Court at his own quota, which restrains the CCU from coming out of the crisis in which it is today. In particular, the CCU does not consider constitutional complaints because it does not have sufficient number of votes for the adoption of its new Rules of Procedure and it is difficult to pass any decisions of the CCU having 4 vacant positions. Consequently, in 2017 the Court was able to pass only 3 decisions.

CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.

The President needs to immediately exercise his personnel authorities regarding the appointment of 2 judges of the Constitutional Court based on the results of a competitive selection. In other words, two candidates with the highest rating of the competition commission leaving other candidates far behind (S. Golovatyi, V. Lemak) should be appointed.