The adoption by the Constitutional Court of Ukraine (hereinafter – CCU) of the dubious Decision on October 27, 2020 to declare the key institutions of the anti-corruption law and criminal liability for submitting knowingly false declarations as unconstitutional demonstrated the inability of the Constitutional Court in its current composition to protect the constitutional order in parallel with carrying out the essential reforms in Ukraine.

Although in December 2020, the Parliament resumed criminal liability for submitting knowingly false declarations and failure to file a declaration by person authorized to perform state or local government functions, as well as returned to the National Agency on Corruption Prevention its powers in respect to e-declarations, the key issue – the appointment procedure of the CCU judges, which would be able to ensure that the CCU judges met the new assessment requirements (integrity and professionalism) – remained unresolved. Parliament continues to delay the implementation of the relevant constitutional provisions for ensuring fair and open competition for the position of CCU judges. The current legislative provisions of the Law of Ukraine “On the Constitutional Court of Ukraine” and the Parliament’s Rules of Procedure distort the logic of competitive selection of the CCU judges, which is enshrined in the Constitution of Ukraine. Political bodies appointing the CCU judges (Parliament and the President) do not want to lose the opportunity to appoint the CCU judges for the sake of political dominance.

The RPR Coalition emphasizes that delaying handling of the issue of competitive selection of the CCU judges is unacceptable. Given that there are currently two open vacancies in the CCU, the appointment of honest professional lawyers to these positions through a transparent competition will undoubtedly increase public confidence in the CCU and will have a positive qualitative impact on the activities of this institution.

Along with the introduction of a competitive procedure for the selection of future judges to the CCU, the Parliament should support the Bill No.4533, aimed at solving other problems of the CCU’s functioning, in particular:

• adoption of decisions in the CCU Senate on declaring a law or its provisions as unconstitutional by only 4 votes of the CCU judges;
• ineffectiveness of the institution of constitutional complaint;
• non-transparent mechanism for forming the agenda of the CCU;
• lack of free and prompt access of citizens to the adopted acts of the CCU (in particular, to procedural rulings of the Court, which are often not published at all);
• ineffective mechanism for bringing the CCU judges to disciplinary responsibility.

The RPR Coalition calls the MPs of Ukraine to:

1. Immediately regulate the procedure of open and transparent competitive selection of candidates for the position of the CCU judges in order to fulfil the constitutional requirements to verify the level of moral qualities and legal competence of the future CCU judges by amending the Law of Ukraine “On the Constitutional Court of Ukraine” and the Parliament’s Rules of Procedure. This selection can be entrusted to a special tender commission, as proposed in a bill prepared by the Centre for Policy and Legal Reforms on the basis of a concept jointly developed by the Automaidan All-Ukrainian Association, Transparency International Ukraine, DEJURE Foundation, Anti-Corruption Action Centre and the Centre for Policy and Legal Reforms.
2. To support the revised draft law “On Constitutional Procedure” in order to optimize the procedural aspects of the CCU’s execution of its functions during consideration of the cases, decision-making and issuing of the conclusions, as well as ensuring that CCU activities are more open and understandable for the society.