The crisis began when the constitutional court declared that the e-declaration system, an online registry of assets top-ranking officials were obligated to declare, was unconstitutional. This decision reversed anti-corruption reforms that had been spurred by the Euromaidan Revolution and were generally considered successful.
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This decision highlights a serious problem within the Constitutional Court: its power has become unstoppable. The court judges, originally called upon to preserve constitutional order, have been blamed for making politically motivated decisions, and there is no fair procedure to appoint new judges.
What is wrong with the competition to the Constitutional Court?
Prior to the first post-Maidan judiciary reform, the process to appoint judges to the Constitutional Court was poorly defined. The process was legally clarified in 2017; however, these procedures neglect the principle of fair competition.
The Constitutional Court is composed of 18 judges: the president, parliament, and the Congress of Judges of Ukraine each appoints six judges.
“In practice, the constitutional provision on competition was not applied: there is no single competition commission to select judges, and each of the appointing entities is more often guided by political motivation than by constitutional criteria in the selection of judges,” Oleksandr Marusiak, expert of the Center for Political and Legal Reforms writes.
Further, the controversial judges of the Constitutional Court from the pre-Maidan era, in particular those who helped now-exiled president Viktor Yanukovych to usurp power, remained in their positions. Consequently, Yanukovych’s successor, Petro Poroshenko, was blamed for attempting to maintain control over the court through these corrupt judges.
What is wrong with the dismissal of Constitutional Court judges?
At the beginning of the recent constitutional crisis, Zelenskyy’s first proposal was to terminate the powers of the Constitutional Court judges altogether. Though he presented this initiative to the parliament, it was criticized both by NGOs specializing in the judiciary and anti-corruption matters and by Ukraine’s international partners, it was not supported by the MPs, and it was eventually withdrawn.
At that time, experts at the DEJURE Foundation explained who has the constitutional power to dismiss judges:
“Neither the President nor the Parliament has the power to dismiss Constitutional Court judges. The only constitutional way to dismiss a Constitutional Court judge before the end of his or her term of office, which is permitted by the Constitution, is to dismiss the judge by the court itself, namely by two-thirds of its composition. Therefore, the model proposed by the President in Bill №4288 is unconstitutional.”
A recent decision to dismiss two judges faces similar criticism. Zelenskyy, however, does not acknowledge any problems with it.
“Any Presidential Decree, like the law, is constitutional. Constitutionality itself is presumed in accordance with constitutional law until its unconstitutionality is established by a decision of the Constitutional Court of Ukraine. In my subjective opinion, this Decree of Volodymyr Zelensky is completely constitutional. It was signed in accordance with the powers of the President as the guarantor of state sovereignty and territorial integrity,” Fedir Venislavskyy, presidential representative in the Constitutional Court, MP from the Servant of the People party said.
According to Fedir Venislavskyy, presidential representative of the Constitutional Court and MP from the Servant of the People party, “quote”
Who are the two judges Zelenskyy dismissed?
Recently, Zelenskyy signed a decree invalidating the appointments of the head of the Constitutional Court Oleksandr Tupytskyi and another judge Oleksandr Kasminin. Both were appointed in 2013 by Yanukovych. According to the president’s decree, this decision was made “to guarantee observance of the Constitution of Ukraine, human and civil rights and freedoms, ensuring state independence and national security, guided by the national interests of Ukraine.”
“The usurpation of power in 2010-2014 by Viktor Yanukovych has undermined the foundations of national security and defense of Ukraine, violation of human rights and freedoms, given that certain judges of the Constitutional Court of Ukraine appointed by Viktor Yanukovych to exercise their powers pose a threat to the state independence and national security of Ukraine, which violates the Constitution of Ukraine, human and civil rights and freedoms,” the decree states.
While Zelenskyy’s dismissal of the two judges may seem just, it is important to consider that this decision allows Zelenskyy to appoint new judges loyal to him, which may only deepen the crisis.
What has to be done instead?
As Tupytskyi and Kasminin were appointed by presidential quota, if they are dismissed then their successors will also be appointed by presidential quota.
Experts at the DEJURE Foundation expect that either the Constitutional Court will refuse to recognize the president’s decree, citing its illegitimacy, so that the two dismissed judges will continue in their positions, or the court will accept the decree to establish the president’s control over the court.
The civil society sector emphasizes that there is only one way to solve this crisis: transparent competition for the positions of the Constitutional Court judges should be established.
Presently no such legislative initiatives have been proposed.
While the proposed bill regarding the constitutional procedures is intended to address the crisis, there are some concerns about its efficacy. The Venice Commission recently released its conclusions regarding the bill: despite welcoming some of the bill’s provisions, including those on publicity and openness, it also noted that the crucial components are missing. In particular, the provisions on the new system of competitive selection of judges of the Constitutional Court with the participation of the international experts.
Ukrainian NGOs and the country’s partners emphasize the importance of the participation of international experts in the selection procedures regarding the judiciary.
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The involvement of international experts provides hope that transparent procedures and fair results may be possible. In Ukraine, this has been demonstrated during the selection process for judges on the High Anti-Corruption Court, the court that tries the highest corruption cases. During the appointments, international experts assessed candidates’ compliance with professional ethics and integrity, and these results played a crucial role in determining whether to advance a candidate through to the next application stage. Over their year and half of work, the Anti-Corruption Court demonstrated that it was significantly more fair than courts that had previously considered such high-ranking corruption cases.
However, as long as the procedure to appoint judges on the Constitutional Court remains political, the process will not be fair and the crisis cannot be resolved.