On November 26, the President signed Decrees № 596/2021 “On Appointment of O. Hryshchuk as a Judge of the Constitutional Court of Ukraine” and № 597/2021 “On Appointment of O. Petryshyn as a Judge of the Constitutional Court of Ukraine” in the absence of relevant vacancies in the CCU under the President’s quota.
The Center for Policy and Legal Reforms has already drawn attention to the fact that the Presidential Decree of March 27, 2021, № 124/2021 “On certain issues of national security of Ukraine,” according to which the President repealed the decrees of the President of Ukraine of May 14, 2013, № 256 On the appointment of O. Tupytsky as a judge of the Constitutional Court of Ukraine” and on September 17, 2013, № 513 “On the appointment of O. Kasminin as a judge of the Constitutional Court of Ukraine” is unconstitutional.
According to the Constitution of Ukraine, as amended by the Law of Ukraine “On Amendments to the Constitution of Ukraine (on Justice)” from June 2, 2016, the President of Ukraine, the Verkhovna Rada of Ukraine, and the Congress of Judges of Ukraine appoint six judges to the CCU, but the decision to dismiss from the position of a judge of the CCU can be approved exclusively by the CCU, and not the subject of appointment (Part II of Article 148, Article 149-1). Also, a CCU judge cannot be dismissed due to the revocation of the act of his appointment, as the acquisition of the CCU judge’s powers is connected with his taking the oath at a special plenary session of the Court. And not with the adoption of the act of his appointment (part seven of article 148 of the Constitution of Ukraine). Therefore, the repeal of such an act does not give rise to any legal consequences for judges of the CCU who have already acquired powers.
The appointment of new CCU judges in the absence of relevant vacancies in the CCU under the President’s quota contradicts the logic of competitive selection of CCU judges and also undermines the legitimacy of the constitutional composition and activities of the CCU as a whole. As you know, some members of the competition commission for the selection of CCU judges, in particular Bohdan Futey, warned that CCU judges could not be appointed in the absence of vacancies in the CCU. In addition, the appointment of CCU judges in an illegitimate manner provokes conflict within the CCU itself, as the Acting CCU Chairman may not convene a special plenary session of the CCU to swear an oath by judges in the absence of vacancies under the President’s quota ( Part II, Art. 17, of the Law “On the Constitutional Court of Ukraine “).
The CPLR emphasizes the need to implement the recommendations of the Venice Commission (conclusions CDL-AD (2020) 039 and CDL-AD (2021) 006-e ) on the introduction of competitive selection of CCU judges. The very appointment of CCU judges on the basis of transparent, competitive selection is a guarantee of restoring public confidence in the CCU as the only body of constitutional jurisdiction in Ukraine. However, the appointment of CCU judges is possible only if there are vacancies under the quota of the relevant appointing entity because otherwise, it calls into question the legitimacy of the CCU.
Given all this CPLR and RPR coalition call on the President not to provoke a further escalation of inter-institutional conflict between the Head of State and the Constitutional Court, which harms the stability of the constitutional order, the international image of Ukraine and national security, and to revoke decrees №596/2021 and № 597/2021 before the oath-taking ceremony of newly appointed judges of the CCU, as there are currently no vacancies under the President’s quota.
The CPPR and the RPR Coalition call on the CCU to refrain from swearing in newly appointed CCU judges under the quota of the President of Ukraine until vacancies for CCU judges arise in accordance with the Constitution of Ukraine.