Weekly analytics for 25 — 31 January
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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Letter of the President of the Venice Commission to the Head of the Verkhovna Rada of Ukraine
Event
On January 25, the President of the European Commission “For Democracy through Law” (the Venice Commission) Claire Bazy Malaurie sent an official letter to the Head of the Verkhovna Rada, Ruslan Stefanchuk, where, among other things, was pointed that the Venice Commission are not able to nominate one delegate to the Advisory Group of Experts (AGE) in accordance with the Law № 2846-IX, since Ukraine did not fulfill the previous recomendations of the Venice Commission. Analysis of the compliance of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Improving the Procedure for the Selection of Candidates for the Position of Judge of the Constitutional Court of Ukraine on a Competitive Basis” (Law № 2846-IX) with the core recommendations made by the Venice Commission in its opinion CDL-AD(2022)054.
Legal analyses
On December 19, 2022 the Venice Commission published the final opinion CDL-AD(2022)054 on the draft law on amending some legislative acts of Ukraine regarding improving procedure for selecting candidate judges of the Constitutional Court of Ukraine on competitive basis (reg. № 7662 of August 12, 2022), adopted by Verkhovna Rada as a law № 2846-IX on December 13. This opinion contained a number of critical recommendations regarding the text of adopted Law, in particular:
– as long as the AGE will be operating with international members, the Venice Commission recommended that the number of AGE members should be increased to seven, and the seventh member should be on the international quota (instead, Law № 2846-IX provides for six members: 3 “national” and 3 “international”);
– the Venice Commission noted, that candidates who are judged by the AGE to be “not suitable” to [constitutional requirements for high moral qualities and level of competence in the area of law], are to be excluded from further consideration and must not be chosen by the appointing bodies (instead the Law № 2846-IX allows relevant bodies to appoint such candidates to the position of a judge of the CCU).
In the analysis of the compliance of the Law № 2846-IX with the core recommendations of the Venice Commission in accordance with its opinion CDL-AD(2022)054 (attached to the letter of the President of the Venice Commission of January 25) the two above-mentioned critical remarks of the Commission are repeatedly emphasized. The Venice Commission noted that since Ukraine did not fullfill this recommendations in the adopted law, the Commission will not be able to nominate one candidate member to the AGE.
CPLR remind that on December 20, 2022, the President signed the Law № 2846-IX in its current version and it entered into force on December 23. The Law № 2846-IX provides for the creation of the AGE in order to assist appointing authorities in the assessment of moral qualities and the level of competence in the area of law of the respective candidates for judicial positions in the Constitutional Court of Ukraine. During first six years from the date of entry into force of the Law № 2846-IX (transition selection period), the AGE’s composition is formed as follows: one person appointed by the President; one person appointed by the Verkhovna Rada of Ukraine; one person appointed by the Council of Judges; one person appointed by the CMU on the Venice Commission’s proposal; two persons appointed by the CCU determined by international and foreign organizations who, in accordance with international or interstate agreements, have been providing Ukraine with international technical assistance in the area of constitutional reform and/or the rule of law, and/or human rights protection, and/or prevention and countering corruption for the past five years. The AGE is considered competent if at least four of its members are appointed.
According to the Law № 2846-IX, on December 29, 2022, the Ministry of Foreign Affairs applied to the Venice Commission for its proposal regarding the candidacy for the formation of the first composition of the DGE in order to forward the received proposal to the CMU.
On January 21, 2023, the beginning of competitive selection of candidates was announced for three vacant positions of judges of the CCU under the Parliament’s quota, and on January 23 – for two vacant positions of judges of the CCU under the quota of the Congress of Judges.
See also the following CPLR’s materials on this topic:
“Draft law on improving the procedure for competitive selection of candidates for the position of judge of the Constitutional Court of Ukraine – analysis of the CPLR’s experts” of November 17, 2022;
“The Venice Commission issued an opinion on the draft law №7662” of November 29, 2022;
“The Law on competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine: resent events” of December 20, 2022;
“Draft law on amending the procedure for the Advisory Expert Group’s formation have been registered in the Verkhovna Rada” of December 30, 2022.