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Political Points for 14 – 21 January 2019

21.01.2019

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

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Unconstitutional selection of candidates for the positions of the Constitutional Court judgesin the Parliament: consideration by the Constitutional Court


1. CPLR expert opinion

The Third Board of the First Senate of the Constitutional Court of Ukraine refused to open constitutional proceedings in the case under the constitutional petition of 47 people’s deputies regarding the compliance with the Constitution of Ukraine (constitutionality) of the provisions of the second sentence of the first paragraph of part three, the second paragraph of part three, part four of Article 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” of February 10, 2010, No. 1861-VI. The case concerns giving the possibility exclusively to deputy factions (deputy groups), groups of non-factional people’s deputes to present candidates for the position of a judge of the Constitutional Court. This situation increases the political influence on the judges of the Constitutional Court back at the stage of their appointment, and contradicts part three of Article 148 of the Constitution of Ukraine, which, as a result of the constitutional reform in 2016 established the selection of candidates for the position of the CCU judge on a competitive basis.

2. Respective authorities counter-point/argument

According to the Third Board of the First Senate of the Constitutional Court of Ukraine, opening of the constitutional proceedings should be declined. Further, in accordance with the Law of Ukraine “On the Constitutional Court of Ukraine”, the final decision whether to open or not open proceedings should be taken by the Grand Chamber of the Constitutional Court.

On Wednesday, January 23rd, the Grand Chamber will consider this issue at its meeting.

3. CPLR assessment of the authorities counter-point

Parliament approved unconstitutional amendments to Article 208-4 of the Rules of Procedure, which established that “the right to submit a proposal for a candidate of the position of a judge of the Constitutional Court of Ukraine may be exercised by a parliamentary faction (parliamentary group), a group of non-factional people’s deputies in the number not less than the quantitative composition of the smallest deputy group”. These proposals are submitted to the Committee on Legal Policy and Justice. Back in the autumn of 2017, the Parliament ruled that candidates can not nominate themselves for a competition independently. However, this is contrary to Article 148 of the Constitution of Ukraine, which established the selection of candidates for the position of a CCU judge on a competitive basis.

In such a critical situation, which is in essence the capability of the Constitutional Court to protect itself from unconstitutional provisions that adversely affect the independence of the Constitutional Court, the CCU should take a principle position and consider the issue of unconstitutionality of Article 208-4 of the Rules of Procedure.

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

Article 148 of the Constitution of Ukraine, Article 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, Article 12 of the Law of Ukraine “On the Constitutional Court of Ukraine”.

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

The Grand Chamber should open constitutional proceedings in this case and consider in essence the issues of unconstitutionality of the provisions of the second sentence of the first paragraph of part three, the second paragraph of part three, part four of Article 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” of February 10, 2010, No. 1861-VI.

Otherwise, the unconstitutional procedure for selecting candidates for a position of the CCU judge in the Parliament will be used for future appointment of the CCU judges, and in fact we will have 6 judges of the Constitutional Court appointed by the Parliament solely for political support, without selection on a competitive basis.