It has been more than a year since the first competitive selection for the position of a judge of the Constitutional Court of Ukraine under the new procedure, which provides for the evaluation of candidates by the Advisory Group of Experts. According to their results, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine could fill only two vacancies and did appoint 2 new CCU judges, but did not fill all the vacant positions.  

If at least 1 position of a CCU judge is not filled by the end of January 2025, the Court may become incompetent. The Center of Policy and Legal Reform explained why.

When preparing the Monitoring Report on the results of the new competitive selection for the position of a CCU judge, the CPLR experts found that for the Verkhovna Rada Committee on Legal Policy and the Council of Judges of Ukraine, the entire period from the announcement of the start of the competitive selection to the receipt of the rating lists of candidates by the appointing authorities is 269 days, i.e. more than 7 months. 

The duration of the competition announced by the Competition Commission, which conducts the competitive selection of candidates for appointment to the position of a CCU judge by the President of Ukraine, was only 153 days, i.e. 5 months, because only 1 candidate received the “meets” criterion of high moral qualities, which made it impossible to continue the competition.

When repeated competitive selections are announced, there is a tendency to reduce the number of people who express their intention to participate in the competitive selection for the position of a CCU judge. In accordance with such time intervals and taking into account the incomplete filling of vacant positions, it can be assumed that the competitive selection for the position of a CCU judge may become a continuous process.

As of October 2024, there are 4 unfilled vacant positions at the appointing authorities (1 – President of Ukraine, 2 – Parliament, 1 – Congress), and 3 more positions will become vacant in the near future – on January 27, 2025. 

Currently, the CCU consists of 14 judges out of the required number of 18. According to Article 10 of Law No. 2368-VIII, the Court is authorized to conduct constitutional proceedings if it consists of at least 12 judges. At least 10 votes are required to pass a decision of the CCU Grand Chamber.

Therefore, there is a threat that if at least 1 position of a CCU judge is not filled by the end of January 2025, the Court may become incompetent, as the number of judges will be less than 12.  

The CPLR experts emphasize that the actual blocking of the activities of the only body of constitutional jurisdiction, which primarily ensures the protection of constitutional rights and freedoms of humans and citizens, is unacceptable in a democratic country such as Ukraine. The non-functioning of the CCU also poses a threat to Ukraine’s European integration process, as reforming the CCU was one of the seven requirements of the European Commission to confirm the status of an EU candidate country. 

Therefore, the experts of the Centre of Policy and Legal Reform recommend that all institutions involved in the competitive selection process do everything possible to ensure the continuity of the CCU’s activities. 

To this end, the Advisory Group of Experts should evaluate the candidates admitted to the competitive selection under the quotas of the Parliament and the Council of Judges of Ukraine no later than one month before January 27, 2025. In accordance with the Law of Ukraine “On the Constitutional Court of Ukraine,” the Advisory Group of Experts may evaluate candidates on the basis of high moral qualities and a recognized level of competence in the field of law simultaneously, as well as complete the competitive selection earlier than the 4-month deadline provided for by law. 

The CPLR draws attention to the fact that the number of CCU judges necessary for the authority of the Court itself is determined at the level of the Law of Ukraine “On the Constitutional Court of Ukraine”. 

The Verkhovna Rada of Ukraine can prevent the blocking of the CCU’s activities if it reduces the number of CCU judges required for the CCU’s competence to 10 or 11 (Article 10 of the Law of Ukraine “On the Constitutional Court of Ukraine” should be amended). In case of reduction of the number of CCU judges required for the CCU’s competence, it is advisable to change the procedure for making decisions and issuing opinions and move to the formula of two-thirds of the CCU judges considering the case and establish a quorum of the Grand Chamber of the CCU.