Weekly analytics for 26 of July – 1 of August
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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Verkhovna Rada Appoints a Constitutional Court Judge Without Competition and Contrary to EU Recommendations
Event
On July 27, Verkhovna Rada appointed MP O. Sovhyria to a Constitutional Court judge position (Resolution No. 2442-IX) without conducting a full-fledged and independent competition for this vacancy. In addition, Verkhovna Rada issued the following decisions:
on early termination of MP O. Sovhyria’s mandate (Resolution 2443-IX);
on terminating the authority of Verkhovna Rada’s permanent representative to the Constitutional Court O. Sovhyria (Resolution 2444-IX).
Legal assessment
The 2016 constitutional reform modified the procedure for appointment of CCU judges and qualifications required of candidates for this office. In particular, a citizen of Ukraine who possesses high moral qualities and is a jurist of recognized competency level may be appointed as CCU judge, while the process itself for selecting candidates for CCU judges must be carried out competitively, in a manner set forth by law. At the same time, the Law of Ukraine “On the Constitutional Court of Ukraine”, which was adopted back in 2017, provided that each of the three appointing entities – the President, the Verkhovna Rada, and the Congress of Judges – conducts its own competition as it sees fit. In practice, requirements regarding competition have either been ignored or complied with only halfway. For example, only the President of Ukraine conducted a competitive selection using a competition commission (that he himself established). Moreover, the VRU Rules of Procedure provided for mandatory preliminary political support of candidates for CCU judges by parliamentary factions, which negated the very logic of having competitive selection for CCU judges.
The Parliament’s appointment of O. Sovhyria as a CCU judge, just like last year’s appointment of V. Kytchun (Resolution No. 1250-IX of Feb. 18, 2021), took place without actual implementation of the constitutional requirement for an independent competitive selection for CCU judges.
CPLR experts are reminding that on June 17, the European Commission recommended granting Ukraine the EU candidate status, but emphasized that Ukraine needs to undertake a number of steps. The first of these steps listed was to enact and implement legislation on a selection procedure for judges of the Constitutional Court of Ukraine, including a pre-selection process based on evaluation of their integrity and professional skills, in line with Venice Commission recommendations, while the Venice Commission called upon Ukraine back in 2020:
to provide for a new procedure for selection of candidates for CCU judges’ positions, in particular using a special screening body with an international component that would include both civil society representatives and international human rights experts;
for appointing entities – to abstain from filling any existing CCU vacancies until after the updated selection rules for candidates for judicial office are implemented in Ukraine’s legislation.
In this light, political appointments of the CCU judges without conducting the relevant competitive selection carry significant risks for Ukraine’s current European integration course.
In addition, according to Article 11 of the Law “On the Constitutional Court of Ukraine”, a CCU judge must meet the political neutrality criteria. In particular, a judge may not be member of political parties or professional trade unions, or publicly express any favor or affection for such entities, or participate in any political activity. Additionally, a person may not be appointed as CCU judge if, as of the day of appointment, he/she:
is a member of or holds an office in a political party or another organization that has political aims or takes part in political activity;
is elected to an elected office in a state or a local self-governance body, or holds a representative mandate;
participates in an organization or financing of political advertisement or any other political activity.
In the case of appointment of MP O. Sovyhria as a CCU judge, these requirements of the law were not complied with. In particular, VRU terminated MP O. Sovhyria’s mandate only after appointing her as a CCU judge – rather than at least one day before such appointment.
Will the July Optimization of Labor Relations be Conducive to Public Service?
Event
On July 19, the Law of Ukraine No. 2352-IX “On Amendments to Certain Legislative Acts of Ukraine Concerning Optimization of Labor Relations” of July 1, 2022 took effect. In particular, it amends the Law of Ukraine No. 2136-IX “On Organization of Labor Relations under Martial Law” of March 15, 2022.
The amendments directly concern public servants (civil servants and local self-governance servants). Starting July 19 and through the end of martial law, the peculiarities of public service are governed by the Law of Ukraine “on Organization of Labor Relations under Martial Law” (hereinafter, the Law). For the duration of martial law, the provisions of the laws of Ukraine “On Civil Service”, “On Service in Local Self-Governance Bodies”, or other laws governing the activities of civil servants or local self-governance servants do not apply concerning relations governed by this Law.
CPLR’s assessment
In the CPLR’s experts’ opinion, this Law de facto eliminates public service for the duration of the war.
In analyzing Article 1 of this Law, there is an impression that the “optimization” is directed first and foremost specifically at public servants. Only after them, employees of enterprises, institutions, and organizations regardless the ownership form, etc. follow.
All public servants without exception, whether they are in the rear, adjacent to the frontlines, occupied, or deoccupied territories, fall under the Law.
Rather than amending the Law of Ukraine “On the Legal Regime of Martial Law” to govern peculiarities of public service by differentiating them based on different situations that may emerge during the war, the lawmaker created risks relating to a number of key issues – such as entering into and terminating an employment contract.
In preparing legislative amendments, it would have been helpful to focus on simplifying the procedure for appointments to vacant public service positions under martial law, rather than equating public servants with workers. It would also help to specify the grounds for transition of public servants to remote work or part-time status, termination of service, etc., taking into consideration a territory’s peculiarities (based on security level). This, in turn, would have strengthened the public service’s capacities under martial law.
Instead, there is now a uniform possibility, across entire Ukrainian territory, for arbitrary terminations of public servants during temporary disability/sick leave or vacation. Even the procedure for appointments, as simplified by the Law, carries risks. During the challenging war times, growing unemployment, and reduction in job numbers, there are possibilities for abuse and subjective “employments” into public service positions. As a result, this would lead to a disturbing weaking of public administration in our country.
Such a practice should not be deemed acceptable; moreover, it should not become affirmed after the war by introducing these negative changes into specialized laws.