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Draft Law on the Constitutional Court of Ukraine No 3300 is Unconstitutional

07.04.2020
Constitutional order /
Constitutional Court

Draft Law on the Constitutional Court of Ukraine No 3300 is Unconstitutional

Event

On 3 April 2020, H. Tretiakova (Member of Parliament) submitted to the Verkhovna Rada of Ukraine a Draft Law on revision of the Law of Ukraine "On the Constitutional Court of Ukraine" (No. 3300), in order to:

  • Transfer of the Constitutional Court’s location from Kyiv to Kharkiv.
  • Unable the possibility of foreign citizenship to the judges of the Constitutional Court.
  • Grand mandatory annual vacation to all judges of the Constitutional Court at the same time.
  • Deny the right of legal entities to submit a constitutional complaint.
  • Terminate all ongoing constitutional proceedings on constitutional complaints of the legal entities.
  • Change the procedure for reviewing the constitutional complaints in the Constitutional Court.
  • Amend the process of adoption and implementation of the Constitutional Court instruments.
  • Amend administrative, civil and commercial procedural legislation regarding the procedure for reviewing court decisions in newly discovered or exceptional circumstances.

CPLR Position

Since the provision of the Draft Law No 3300 denies legal entities with the right to submit the constitutional complaint to the Constitutional Court of Ukraine, the Draft Law directly contradict the Constitution of Ukraine, violating the following constitutional provisions:

  • Everyone shall be guaranteed the right to submit a constitutional complaint to the Constitutional Court of Ukraine on grounds defined in the Constitution and under the procedure prescribed by law, Article 55 (4).
  • The Constitutional Court of Ukraine decides on compliance with the Constitution of Ukraine of a law of Ukraine upon constitutional complaint of a person alleging that the law of Ukraine applied to render a final court decision in their case contravenes the Constitution of Ukraine, Article 151-1.

The CPLR pays attention that the Constitution of Ukraine guarantees the right to submit a constitutional complaint to the Constitutional Court literally to every person (i.e. both individuals and legal entities) and does not contain any exceptions or restrictions towards any groups of the persons. Therefore, amendments to Articles 55 and 56 of the Law of Ukraine "On the Constitutional Court of Ukraine" (regarding the prohibition of legal entities to apply to the Constitutional Court with a constitutional complaint), as well as the provisions of clause 2 of the "Final Provisions" of the Draft Law (regarding the termination of all ongoing proceedings initiated by the Court towards the constitutional complaints of legal entities) contravenes the Constitution of Ukraine.

With some positive exceptions (for instance, the direct prohibition of foreign citizenship for judges of the Constitutional Court, or provisions related to the enforcement of the implementing decisions of the Constitutional Court in case the act is unconstitutional), most of the initiative are inappropriate and unconstitutional, in general.

First, the transfer of the Constitutional Court’s location from Kyiv to Kharkiv seems to be a manifestation of indirect political intervention into Constitutional Court business, since it surprisingly reminds the similar parliamentary initiatives of the previous decade (in the 2000s) raised within the similar circumstances. In addition, implementation of such initiative requests a significant number of resources from the State Budget of Ukraine to cover all organizational and financial issues of Court transfer. However, to ensure the true independence of the judges of the Constitutional Court, the legislative optimization of the constitutional procedure for the selection of judges of the Constitutional Court on a competitive basis (Article 148 of the Constitution of Ukraine) is urgently needed. The CPLR recalls that the Parliament neither created the necessary procedural mechanisms to ensure the transparent selection of judge candidates to the Constitutional Court, nor omitted the unconstitutional provision in the Rule of Procedure towards the mandatory support of the judge candidates by parliamentary factions (groups).

Second, the reduction of the number of Constitutional Court judges required to adopt a decision on a constitutional complaint in the Senate (from at least two-thirds of judges in the Senate, i.e. six judges) to five judges from the Senate much more simplifies the Senate's adoption of decisions, and therefore increases the risk of adoption unjustified or politically motivated decisions on constitutional complaints, since, in fact, 5 out of 18 judges of the Constitutional Court is able to make the final decision of the Court. There no valid explanation on what ground for reducing this number of judges is justified.

Third, the mandatory vacation for all judges of the Court at the same time is both inappropriate and unconstitutional since the permanently acting Constitutional Court shall provide adequate and timely reaction to any threats against the stability of the constitutional order and shall ensure the legal force of the Constitution of Ukraine and the protection of human rights and freedoms (Chapter XII of the Constitution of Ukraine). The simultaneous absence of all Constitutional Court judges makes Court vulnerable and incapable of performing its constitutional functions for a long time period (one month or more), which is unacceptable in a democratic state. As for vacation, this issue should be regulated by the instruments of the Constitutional Court (as, in fact, it is today).

Therefore, because of unconstitutional nature of the certain provisions of the Draft Law No. 3300, as well as the other reservations made above, the CPLR recommends this Draft Law should be withdrawn.

Conclusion:

1. Draft Law provisions on the exclusion of legal entities from the subjects of the constitutional complaint, as well as on the simultaneous granting annual vacation to all judges of the Constitutional Court do not agree with the Constitution of Ukraine.

2. Constitutional Court’s location transfer is inappropriate and costly endeavour with no foreseeable positive outcome. In addition, reducing the number of Constructional Court judges to decide on a constitutional complaint is unjustified and increases the risk of making unjust or politically motivated decisions by the Senate of the Court.

3. CPLR recommends the Verkhovna Rada to adopt necessary amendments to the Law of Ukraine “On the Constitutional Court of Ukraine” for the implementation of Article 148 of the Constitution of Ukraine (on the procedure of a selection of judges of the Constitutional Court on a competitive basis), as well as to remove the unconstitutional provisions of Article 208-4 of its Rule of Procedure on the support of judge candidates by a parliamentary factions (groups). A clear procedural mechanism on transparent selection of the Constitutional Court judge candidates, not the Court’s location transfer, is the key foundation for the independence of this body.