The Constitutional Court of Ukraine: The Problem of Guaranteeing Independence

DRI briefing paper prepared by Yulia Kyrychenko, expert of the Centre of Policy and Legal Reforms and the Reanimation Package of Reforms.

Executive summary

The current model of the Constitutional Court of Ukraine (“CCU” or “Court”) was introduced in the original text of Ukraine’s Constitution of 1996. Left unchanged for twenty years, it has proved itself inadequate to secure the independence of this institution, save it from serving parochial political interests of groups or personalities. This fundamental flaw became most prominent during the regime of President Yanukovych who, soon after gaining power in 2010, utilised the Court to substantially expand his presidential powers through reinstating the preceding version of the Constitution as it had been prior the amendments of 2004.

There were two main tools of choice to influence the Court: ungrounded ousters and appointments of politically loyal justices. Due to Yanukovych’s flight after the mass protests of Ukrainian citizens (the Revolution of Dignity) in early 2014, there emerged pressing necessity to restore the constitutional legitimacy and reform the Constitution. The fate of the CCU was part of the challenge. The parliament restored the version of the Constitution as of 8 December 2004 and fired the judges within its purview, which judges voted for constitutional alterations in 2010. At the same time, the judges appointed by President and the Convention of Judges retained their offices.

On 2 June 2016, the Constitution was luckily amended in what concerned the independence of the judiciary and the reform of the constitutional justice. The amendments entered into force on 30 September 2016. However, in April 2017 the parliament failed to adopt the new Statute on the CCU to implement the constitutional reform whence the current situation, namely:

·         there are thirteen judges of the CCU, there being no opportunity to appointment new ones because the new constitutional requirement of selection by competition is not legislatively explicated;

·         in 2017 the Court made no judgment;

·         the review under the already submitted constitutional complaints has been paralysed just like—more broadly—the performance of the CCU’s novel functions (reviewing constitutional complaints and checking the constitutionality of questions suggested for popularly initiated nation-wide referendums).

The actual situation of the constitutional jurisprudence has not changed till mid 2017: the CCU remains to be weak, docile and inefficient; now it is also paralysed in its new responsibilities. The state of affairs cries for urgent emendation; and there are all prerequisites to improve the situation, provided that the constitutional amendments of 2 June 2016 be implemented appropriately, fairly and transparently (which has not always been the case by now). These constitutional amendments were directed at decreasing the Court’s political dependence and now give chance to move towards building independent constitutional jurisdiction. The principal drawback of the amendments is essentially the same as before procedure for appointing judges. At the same time, the undeniable advantage is the introduction of the constitutional requirement for the obligatory competition to select candidates for the CCU. Unfortunately, the wording of this requirement is exceedingly general thus allowing for all kinds of distortions at the legislative level. For the same reason, it would have been much more progressive to insert directly into the Constitution explicit and detailed provisions on the procedure and grounds for dismissing judges of the CCU and on the guarantees of the Court’s financial sustainability.

There are some other reasonable suggestions which should be implemented in order to achieve and secure the independence of the CCU. The new edition of the Statute on the Constitutional Court should:

·         be very precise on the selection procedure to guarantee true competition among the candidates and minimise the influence of political actors;

·         establish single contest panel for all the authorities appointing judges, which panel should recommend candidates to all such authorities;

·         totally regulate all activities and routines of such panel and the procedure of the contest;

·         exclude the possibility of the abovementioned appointing authorities to ignore the outcomes of the contest: the appointments should only be effected from among those recommended by the panel;

·         be very precise and detailed on the legal meaning of an “essential disciplinary transgression, gross or systematic negligence of duties incompatible with the office of a justice” or of the “inaptitude for the office held” and also establish the procedure for initiating dismissals on such grounds.

If duly implemented in statutes, the constitutional amendments give a chance for an independent and widely respected Constitutional Court of Ukraine.

Briefing paper 'The Constitutional Court of Ukraine: The Problem of Guaranteeing Independence' (ukr, pdf)