Political Points for 2 – 9 December 2019

Legal position of the Constitutional Court of Ukraine on the draft law amending Article 93 of the Constitution of Ukraine (on the legislative initiative of the people)

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1. CPLR expert opinion

On November 13, 2019 the Constitutional Court of Ukraine issued a positive opinion in the case on the conformity of the draft law on amending Article 93 of the Constitution of Ukraine (concerning the legislative initiative of the people) (Reg. No. 1015) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. However, in paragraph 2 of the resolution part of the Opinion, the Court expressed its legal position, stating:

– firstly, in accordance with part 2 of Article 5 of the Constitution of Ukraine, the people are the bearer of sovereignty and the sole source of power in Ukraine, and therefore they cannot be determined as a subject of a legislative initiative without the establishment in the Constitution of Ukraine of an adequate number of citizens of Ukraine who have the right to vote, for the implementation of such a legislative initiative; however, the provision proposed in the draft law makes it impossible to implement it;

– secondly, while establishing the cases and the procedure for exercising the right of legislative initiative, the Verkhovna Rada of Ukraine cannot restrict the rights of legislative initiative of any of the subjects of this right, determined by the Constitution of Ukraine.

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

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

Constitution of Ukraine, Law of Ukraine “On the Constitutional Court of Ukraine”, Rules of Procedure of the Verkhovna Rada of Ukraine

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

The opinions of the Constitutional Court of Ukraine in cases concerning the constitutional address of the Verkhovna Rada of Ukraine on any draft amendments to the Constitution of Ukraine are binding on the Parliament.

We recommend to the Verkhovna Rada of Ukraine to take into account the legal position of the Constitutional Court of Ukraine and, accordingly, to elaborate the draft law on the legislative initiative of the people in order to clearly establish at the level of the Constitution all subjects of the legislative initiative. Then, the VRU should continue consideration of the draft law No. 1015 after receiving the new CCU Opinion on compliance of the draft law with the requirements of Articles 157, 158 of the Constitution.

The Venice Commission supported the participation of international experts in the reboot of the judicial governance bodies

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1. Event

On December 6, the Venice Commission approved the Opinion on the Law of Ukraine “On Amending the Law of Ukraine “On Judicial System and Status of Judges” and Some Laws of Ukraine on the Activity of Judicial Governance Bodies” No. 193-IX.

The opinion focuses on amendments related to the reform of the High Council of Justice and the High Qualification Commission of Judges; reducing the number of judges of the Supreme Court; disciplinary procedure and judicial remuneration.

The Venice Commission supported the temporary participation of international experts in a selection board for the selection of members of the High Qualifications Commission of Judges and the Commission on Ethics and Integrity. According to the law, these bodies will have a mixed international (three members each) and national (three members each) composition.

“Following the successful model of the anti-corruption law, such a composition fosters the trust of the public and may help in overcoming any problems of corporatism”, stated the Venice Commission (p. 22 of the Opinion).

At the same time, the Venice Commission criticized the new staff cuts of the Supreme Court, generally supporting the institution’s reform: “A reform of the Supreme Court can and even should be undertaken once its huge case-load has been reduced” (p. 84). The Venice Commission sees the main problem in the sequence of changes, also paying attention to the risks to judicial independence, when it appears that after the election of new political bodies, they have the discretion to determine which of the judges to hold office.

In addition, the Venice Commision believes that “if there really had been problems in the application of the procedure of appointments of judges, the recommendations of the Public Integrity Council should provide sufficient indications as to which cases would need to be reviewed on an individual basis” (p. 62).

2. CPLR Assessment

Importantly, the Venice Commission welcomed the involvement of international experts in the procedures for reboost of the High Qualifications Commission of Judges and the High Council of Justice, since the problem of corporatism (mutual guarantee) led to the absence of significant positive results in clearing the judicial corps during the previous stages of judicial reform.

In our view, the Venice Commission’s opinion is an argument in favor of introducing a mechanism for reviewing the appointments of a part of the Supreme Court judges, which was made by ignoring the facts of unfair behavior stated in the findings of the Public Council of Integrity, instead of mechanically reducing the number the Supreme Court judges.

At the same time, the text of the opinion shows that representatives of the Ukrainian side provided the Venice Commission with incomplete or incorrect information about the context of the problems, which may have affected the accuracy of some of the conclusions. For example, the Venice Commission recommended: “The disciplinary procedure should be simplified by reducing the excessive number of remedies available: against disciplinary decisions of the HCJ, an appeal should lie directly with the Supreme Court and no longer with the Kyiv City Administrative Court and the administrative court of appeal” (p. 85).However, the decision of the disciplinary authority on a judge can now be appealed to the High Council of Justice and then to the Supreme Court.

Instead, the process of forming a new High Qualifications Commission of Judges, as well as the process of clearing the High Council of Justice, could potentially be blocked by a lengthy red tape in the “unreformed” Kyiv District Administrative Court and subsequent instances. In this case, it would be expedient here to consider such cases, if they arise, by the Supreme Court.

High Council of Justice has demonstrated its intention to manipulate the results of the competitive selection to the High Qualifications Commission of Judges despite the participation of international experts

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1. Event

On December 6, the High Council of Justice (HCJ) announced that the draft regulation on the competitive selection to the High Qualifications Commission of Judges (HQCJ) was undergoing the final stage of discussion. A few days later, one of the information resources published the text of the draft Regulation on the competitive selection for the vacant post of a member of the HQCJ.

2. CPLR Assessment

Provisions of the draft regulation, if the published text is true, contradict the law, their content is based on misunderstanding of the legal status of the selection commission, and the proposed procedure for the competitive selection of the HQCJ members aims at nullification of the role of international experts and creating opportunities for external manipulation with the result of the competition.

According to the CPLR experts:

1) the HCJ unlawfully determined that the future composition of the HQCJ should include a majority of judges and established discriminatory conditions for non-judge participants;

2) the HCJ establishes the “auxiliary” nature of the selection commission, in particular it only forms the rating of the contestants; instead, the law stipulates that the selection commission shall select one candidate from among the participants of the competition for each vacant position of the HQCJ member;

3) the HCJ seeks to obtain a number of unlawful powers and rights:

•  power to approve the rules of procedure of the selection commission;
•  power to approve the decision of the selection commission on the admission of candidates to the competition;
•  right to refuse the appointment of a candidate recommended by the selection commission (without determining the grounds);
•  authority to re-determine the winner of the competition and appoint him or her to the post of the HQCJ member if the previous winner refused or did not pass a special check.

4) the HCJ, through the introduction of tests and scoring before the interview, nullifies the role of international experts in the evaluation of candidates, because only those candidates who will obtain the minimum number of scores (the leakage of test questions for individual candidates cannot be excluded) will reach the interview stage, while the weight of the interview in the selection procedure is minimal (only 10 out of 80 scores);

5) the HCJ offers a standard of proof “beyond reasonable doubt” for assessing a candidate’s integrity, which removes the obligation from the candidate to refute any reasonable doubt about his or her integrity;

6) the HCJ transforms an important legislative safeguard of the veto power of international experts in relation to the candidates into the fiction, as the members of the commission vote during the final ranking when all the contestants have received their scores.

In view of the critical remarks, the procedure for competitive selection needs to be re-drafted, and even better if it is regulated by law.