Weekly analytics for 23 – 29 November 2021
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The President appoints judges to the Constitutional Court despite no vacant positions on the Court
On November 26, the President signed Decrees № 596/2021 «On Appointment of O. Hryshchuk as a Judge of the Constitutional Court of Ukraine» and № 597/2021 «On Appointment of O. Petryshyn as a Judge of the Constitutional Court of Ukraine».
CPLR has already drawn attention that the Presidential Decree № 124/2021 of March 27, 2021 «On some issues of national security of Ukraine», according to which the President revoked the decrees of the President of Ukraine № 256 of May 14, 2013 «On the appointment of O. Tupytskyi as a Judge of the Constitutional Court of Ukraine» and № 513 of September 17, 2013 «On the appointment of O. Kasminin as a judge of the Constitutional Court of Ukraine» is unconstitutional, given that:
- according to the Constitution of Ukraine, the President of Ukraine, the Verkhovna Rada of Ukraine, and the Congress of Judges of Ukraine each appoint six judges of the CCU, but the decision on dismissing a CCU judge is made exclusively by the CCU and not by the appointing authority (section two of article 148, article 149-1 1);
- a judge of the CCU cannot be dismissed due to the revocation of the act on his/her appointment, as the assumption of authority by a CCU judge is tied to taking an oath at a special plenary session of the Court, rather than to the adoption of an act on his or her appointment (section seven of article 148 of the Constitution);
Since the revocation of the act on the appointment of CCU judges does not create any legal consequences for those judges that have already assumed authority, the appointment of new CCU judges under the President’s quota in the absence of relevant vacancies on the CCU (O. Tupytskyi’s and O. Kasminin’s tenures expire on May 15 and September 19, 2022, respectively) is unconstitutional. Additionally, such an act by the head of state contradicts the logic of competitive selection of judges of the CCU and undermines the legitimacy of the constitutional composition and activity of the CCU as a whole.
The appointment of judges of the CCU only on the basis of transparent competitive selection, subject to the availability of vacant positions on the Court, is crucial to restoring public confidence in the CCU as the only body of constitutional jurisdiction in Ukraine.