Events

On December 19, the European Commission “For Democracy through Law” (Venice Commission) published the conclusion CDL-AD(2022)054 on the draft law on amendments to some legislative acts of Ukraine on improving the procedure for selecting candidates for the position of judge of the Constitutional Court of Ukraine on a competitive basis (No. 7662 dated August 12, 2022). The Verkhovna Rada adopted Law No. 2846-IX on December 13. The conclusion CDL-AD(2022)054 was approved at the 133rd Plenary Session (Venice, 16-17 December 2022) of the Venice Commission and contained several critical recommendations regarding the text of Law No. 2846-IX.

On December 20, the President signed Law No. 2846-IX. This Law shall enter into force on the day following its publication.

Juristic assessment

The conclusion CDL-AD(2022)054 is a revised version of the text of the urgent conclusion of the Venice Commission CDL-PI(2022)046, adopted on November 23 by Article 14a of the Regulations of the Venice Commission. In general, finalizing previously published legal positions before their final adoption at plenary sessions is typical for the Venice Commission. As a rule, the texts of such conclusions may differ in some details, mainly if it is necessary to consider essential circumstances that did not exist on the date of adoption of the first version of the conclusion.

The conclusion CDL-AD(2022)054 updated the information regarding the process of consideration and adoption of draft law No. 7662. In particular, the Venice Commission noted that the Verkhovna Rada adopted Law No. 2846-IX on December 13. However, its text, signed by the Speaker of the Verkhovna Rada, was provided to the Secretariat of the Commission only on December 16. Therefore the Venice Commission did not have the opportunity to read the text of this Law. Given this, the absence of a position of the Venice Commission regarding the provisions of the final text of Law No. 2846-IX should not be interpreted as its automatic support (paragraph 7).

CPLR experts have already analyzed the conclusion of the Venice Commission CDL-PI(2022)046. The final text of the conclusion CDL-AD(2022)054 differs from the analyzed conclusion CDL-PI(2022)046 only in the following important nuances:

1. The Venice Commission recommends that as long as the Advisory Group of Experts (AGE) will work in a configuration with members appointed from international/foreign organizations, the number of members of the AGE should be increased to seven. The seventh member should be selected according to the global quota (paragraph 60, eighth subparagraph of paragraph 72). CPLR experts remind that Law No. 2846-IX provides six members of the AGE.
2. The Venice Commission emphasized that candidates for the position of judge of the ССU, whom the AGE evaluated as “does not meet” [constitutional requirements for high moral qualities and a level of competence in the field of Law], should be excluded from the further selection process and should not be appointed by the relevant entities (paragraph 63, sixth subparagraph of point 72). The experts of the CPLR remind us that Law No. 2846-IX enables the Verkhovna Rada of Ukraine and the Congress of Judges to appoint such candidates to the position of judge of the CCU (see also the statement of the CPLR dated November 29).

Last week, civil society representatives called on the President to veto the Law No. 2846-IX and return it to the Verkhovna Rada for reconsideration and adoption, as the adopted version of Law No. 2846-IX does not solve the problems mentioned above. And Ukraine’s fulfillment of its obligations regarding EU membership depends on adopting and implementing this Law.

However, since the President signed Law No. 2846-IX with all its shortcomings, the recommendations of the Venice Commission mentioned above can be implemented only through amendments to the Law “On the Constitutional Court of Ukraine.”

CPLR experts remind us that there are currently five vacancies in the CCU (3 according to the quota of the Verkhovna Rada and two according to the quota of the Congress of Judges), and they must be filled exclusively through competitive selection.

In addition, it is essential to remember that the critical value of adoption of Law No. 2846-IX is the appointment of judges of the CCU of only those candidates who, as far as possible, meet the constitutional requirements for high moral qualities and level of their legal competence. Applying any formal or simulated approaches to the selection of judges of the CCU, as well as the appointment of dishonest and/or unprofessional candidates, cannot be considered as the fulfillment of the relevant recommendation of the European Commission.

CPLR