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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. № 9322) was registered in the Verkhovna Rada of Ukraine

Event

On May 25, 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 deels with almost the same issues as the April draft law № 9225, which has been previously analyzed by the CPLR experts (available here). The observations of the Venice Commission expressed in the opinion of December 16-17, 2022 and the letter of January 25, 2023 were also taken into account. 

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.
• The formation of eligible AGE if at least 4 members are appointed. 
• The possibility for performing the assessment under the criterion of high moral values and professional qualities simultaneously. 
• 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, the Age’s decisions 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.

Overall, CPLR positively assess the draft Law № 9322, which will establish an effective and qualified competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine in compliance with the recommendations of international partners.

At the same time the CPLR experts emphasize that the draft Law provides for the AGE to hold a ranking vote on all evaluated candidates who have successfully passed the competitive selection. The candidates are placed in a ranking list depending on the number of votes of AGE members from the highest (6 votes in favor) to the lowest result (0 votes in favor). In fact, there is a repeated voting for candidates who have already received a “compliant” rating according to the criterion of moral qualities and level of professional competence.

Such a power is quite questionable, since after that the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine, as appointment authorities, will first consider the candidates who received the highest rating score from the AGE. If they are elected, other candidates who received a smaller number of AGE members votes are not considered.

In this scenario, candidates whose moral and professional qualities have been assessed on an equal basis are subject to discrimination based on a ranking vote. The draft law does not define any evaluation criteria on the basis of which the members of the AGE vote. Thus, it can be assumed that each member will be guided by his or her own subjective opinion. We recommend excluding such a rating voting procedure.

CPLR experts also emphasize the problem of legislative drafting. Draft law № 9322 provides for a period of 190 days for the appointment of persons to the first composition of the AGE by the relevant authorities. The term is counted from the date of entry into force of the Law of Ukraine № 2846-IX of December 13, 2022 “On Amendments to Certain Legislative Acts of Ukraine on Improving the Procedure for Selecting Candidates for the Position of Judge of the Constitutional Court of Ukraine on a Competitive Basis” (the 190-day term expires on July 1, 2023). We believe that this approach is erroneous, as Law № 2846-IX has been in force for less than six months and has exhausted its purpose. It seems illogical and inconsistent with the requirements of legislative technique to count the period for certain actions from the current law, while it would be more appropriate to count from the entry into force of the law under consideration.

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.