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RPR EXPERTS CALL ON THE CCU TO PROTECT THEIR INDEPENDENCE

The Third Panel of the First Senate of the Constitutional Court Ukraine (hereinafter referred to as the CCU) refused to initiate constitutional proceedings in the case as per the constitutional petition of 47 MPs on the compliance of the Constitution of Ukraine (constitutionality) with the provisions of Article 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” (hereinafter referred to as the Rules of Procedure) The case concerns the fact of granting exclusive right to MP factions (MP groups), groups of non-attached MPs to submit nominees for the position of a judge of the Constitutional Court, which increases the political influence on the judges of the Constitutional Court as early as at the stage of their appointment. This contradicts part three of Article 148 of the Constitution of Ukraine, which, as a result of the constitutional reform  of 2016, established the selection of candidates for the position of a judge of the CCU on a competitive basis.

Background. After the constitutional reform of 2016, the status of the Constitutional Court of Ukraine was changed; the procedure for selecting CCU judges was also updated. In accordance with Article 148 of the Constitution of Ukraine, candidates for the position of a judge of the Constitutional Court of Ukraine are selected on a competitive basis in accordance with the procedure established by law. The Parliament, the President and the Congress of Judges of Ukraine appoint 6 CCU judges each.

However, on July 13, 2017, the Parliament, having adopted the new Law “On the Constitutional Court of Ukraine” (hereinafter referred to as the Law), reduced this procedure to nothing. This especially concerns the procedure for the appointment of CCU judges by the Parliament. The procedure itself is set out in Article 208-4 of the Rules of Procedure: “The right to submit a proposal concerning a candidate for a position of a judge of the Constitutional Court of Ukraine may be exercised by MP factions (MP groups), groups of non-attached MPs in an amount not less than the quantitative composition of the smallest MP group.” These proposals are submitted to the Verkhovna Rada Committee on Legal Policy and Justice.

Back in the autumn of 2017, the Committee decided that the candidates could not be nominated for the competition on their own. However, when appointing the CCU judges under the quota of the President and the Congress of Judges, the candidates can nominate themselves. These requirements of Art. 208 4 of the Rules of Procedure are contrary to Art. 148 of the Constitution of Ukraine which established the selection of candidates for the position of a CCU judge on a competitive basis and the principle of independence in the activities of the Constitutional Court of Ukraine. After all, it is impossible to hold a competition when factions offer candidates, the Verkhovna Rada Committee reviews these proposals, and then the Verkhovna Rada itself appoints the CCU judges.

On November 28, 2018, 47 MPs filed a request with the CCU to check these legislative provisions for compliance with the Constitution, however, the Third Panel of the CCU refused to initiate the proceedings.

Key Points. In the opinion of the Third Panel of the First Senate of the Constitutional Court of Ukraine, the initiation of constitutional proceedings must be denied. Further, in accordance with the Law, the final decision to initiate or not to initiate proceedings should be approved by the Grand Chamber of the Constitutional Court. On Thursday, January 24, the Grand Chamber will consider this issue at its session. Having initiated the constitutional proceeding in the case, the CCU can consider the issue in substance and decide whether the specified provisions are in conflict with the Constitution.

If the Grand Chamber still refuses to initiate the proceedings, the Constitutional Court will rescue itself from solving the problem of further influence of Parliament on its own activities. It looks like this CCU composition is comfortable under the influence of politicians, since in the future we can get 6 judges of the Constitutional Court appointed by the Parliament solely for political support, which is contrary to the Constitution.

Therefore, the experts of the constitutional reform and judicial reform team of the Reanimation Package of Reforms call on the Constitutional Court of Ukraine to take a real chance to protect its independence and initiate constitutional proceedings under the constitutional petition of 47 MPs on the compliance of the provisions of the second sentence in the first paragraph of the third part of the Constitution of Ukraine (constitutionality) with the second paragraph of part three, part four of Article 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” of February 10, 2010 No.1861-VI.

RPR Experts from the “Constitutional Reform” team

Centre of Policy and Legal Reform

DEJURE Foundation

Automaidan

Anti-Corruption Action Center

Ukrainian Center for Independent Political Research

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