Weekly analytics for 19 — 25 April
Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combating corruption, criminal justice, etc.
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- Draft Law “On Amendments to Certain Legislative Acts of Ukraine to Clarify Certain Provisions on Competitive Selection of Candidates for the Position of a Judge of the Constitutional Court of Ukraine” (reg. № 9225) was registered in the Verkhovna Rada of Ukraine
- Draft law on bringing legislative provisions into compliance with Articles 86 and 106 of the Constitution of Ukraine (№ 9221) was registered in the Parliament
Draft Law “On Amendments to Certain Legislative Acts of Ukraine to Clarify Certain Provisions on Competitive Selection of Candidates for the Position of a Judge of the Constitutional Court of Ukraine” (reg. № 9225) was registered in the Verkhovna Rada of Ukraine
Event
On April 19, MPs registered a draft Law to clarify certain provisions on the competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine.
Legal assessment
The registered edition of the draft law takes into account the key observations of the Venice Commission expressed in the opinion of December 16-17, 2022 and the letter of January 25, 2023.
In particular, the draft Law provides for:
- Extension of the period of 30 days for submission of documents by persons applying for participation in the competitive selection.
- Providing an additional period for submitting corrected documents if they were previously submitted with errors and inaccuracies that are not grounds for refusing admission to the competitive selection.
- Possibility of conducting special inspections provided for by the Laws “On Prevention of Corruption” and “On Lustration of Power”, which is limited during martial law.
- When assessing candidates according to the relevant criteria, the AGE meeting is quorate if at least five members are present.
- A candidate receives a “meets” rating for the professional qualities criterion if he/she receives at least 5 votes in favor from the members of the AGE, and a “does not meet” rating if he/she receives 4 votes in favor or less from the members of the AGE.
- Possibility to elect a deputy member of the AGE, who, in case of recusal or early termination of powers of the current AGE’s member, is considered to be appointed to his/her position without an additional decision of the appointing authority;
- During the transitional period of selection, a decision on a procedural or organizational issue or a decision to assess the compliance of any of the candidates with the criterion of high moral qualities shall be made by at least four votes of its members, two of whom are proposed by international organizations or the European Commission for Democracy through Law. Their votes are decisive in the event of a tie in the second round of voting.
Thus, the CPLR recommends that the Verkhovna Rada to adopt draft law № 9225, which will establish an effective and qualified competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine. It takes into account the main comments of the Venice Commission and its adoption in the registered version will once again demonstrate Ukraine’s true readiness to join the EU and strengthen democracy.
At the same time, the CPLR experts emphasize that the draft law provides for too long a period of 180 days for the appointment of persons to the first AGE by the relevant authorities. Such a period of six months is unreasonable for the personnel powers of the appointment authorities (the President of Ukraine, the Verkhovna Rada of Ukraine, the Congress of Judges of Ukraine, the Cabinet of Ministers of Ukraine on the proposal of the European Commission for Democracy through Law and on the proposals of international organizations that have been providing international technical assistance to Ukraine in the areas of constitutional reform, rule of law, human rights protection and/or prevention and counteraction to corruption over the past five years) and may delay the process of filling vacant positions in the Constitutional Court of Ukraine. This primarily negatively affects the effectiveness of constitutional control by the CCU.
We also would like to emphasize that the Venice Commission’s recommendation regarding the seventh member of the AGE, who, in our opinion, could be a citizen of Ukraine and appointed by international partners, has not been implemented. Instead, draft law № 9225 increases the number of votes required to obtain a “compliant” assessment based on the level of professional competence from four to five.
The previous position of the CPLR experts on the draft law № 7662 on the introduction of a competitive selection of candidates for the position of a CCU judge in November 2022 is available here.
Draft law on bringing legislative provisions into compliance with Articles 86 and 106 of the Constitution of Ukraine (№ 9221) was registered in the Parliament
Event
On April 19, a group of MPs registered a draft law on amendments to the relevant specialized Laws of Ukraine concerning the special constitutional procedure for appointment and dismissal of the Head of the Antimonopoly Committee of Ukraine, the Head of the State Property Fund of Ukraine, and the Head of the Security Service of Ukraine.
CPLR’s expert assessment
The purpose of the draft law, as phrased in the registered version, is to bring the legislation into compliance with constitutionally established personnel-related authority of the Verkhovna Rada of Ukraine, the President of Ukraine, and the Prime Minister of Ukraine.
In particular, the draft law provides for:
1. Appointment and dismissal of the Heads of the Antimonopoly Committee of Ukraine and the State Property Fund of Ukraine by the Verkhovna Rada of Ukraine upon nomination by the Prime Minister (according to clause 12 of part 1 of Article 86 of the Constitution of Ukraine).
According to the relevant Laws of Ukraine, the President of Ukraine was entrusted with authority over these personnel decisions, contrary to the Constitution.
2. Appointment and dismissal of the Head of the Security Service of Ukraine by the Verkhovna Rada of Ukraine upon nomination by the President of Ukraine (according to clause 16 of Article 106 of the Constitution of Ukraine).
However, according to the current Law of Ukraine “On the Security Service of Ukraine”, the President of Ukraine exercises the relevant authority individually.
Also, the draft law № 9221 proposes amendments to the Rules of Procedure of the Verkhovna Rada in the context of compliance of the legislative procedure for appointment and dismissal of relevant officials with the Constitution of Ukraine.
Thus, the CPLR recommends the Parliament to adopt the draft law № 9221, which will firmly establish the constitutional procedure for the appointment and dismissal of the above-mentioned officials and thereby strengthen the general legal principles of the rule of law, the highest legal force of the Constitution, and legal certainty. The proposed amendments will contribute to maintaining a balance between the branches of government and strengthening the role of the Parliament and the Prime Minister of Ukraine.
In particular, experts of the CPLR have repeatedly drawn attention to the importance of strengthening the Government and implementing the mixed prime ministerial-presidential model of government. More details can be found in the Concept of Constitutional Reform prepared within the framework of the project “Ukraine after the victory: Preparation and communication of reforms for the implementation of the ‘Vision of Ukraine – 2030’”.