Venice Commission issues urgent opinion on draft law on selecting candidate judges of Constitutional Court of Ukraine

"The body of constitutional and legal experts of the Council of Europe issued an urgent opinion on the draft Law ‘On amending some legislative acts of Ukraine regarding improving the procedure for selecting candidate judges of the Constitutional Court of Ukraine on a competitive basis’," Ukrinform learnt from the press service of the Council of Europe.

As noted, the Venice Commission welcomes the intention and efforts of the Ukrainian authorities to improve the competitive selection of candidate justices to the CCU. Overall, the Venice Commission finds that the draft amendments go a long way toward implementing the recommendations of the Venice Commission’s previous opinions. At the same time, there is still room for improvement.

The Venice Commission invites the Ukrainian authorities to make full use of its previous and present opinions while the draft amendments are under consideration by the Parliament in order to provide all the necessary guarantees for independence, impartiality and efficiency of the Advisory Group of Experts (AGE) in line with international standards.

In particular, the Venice Commission makes the following key recommendations:

- to introduce a sunset clause in the draft amendments, providing for a time limit to

international participation in the process of selection of CCU judges;

- to provide for a definite term of office for the international members of the AGE and for their appointment through an official act of a Ukrainian authority, ratifying the appointment decisions;

- to simplify the procedure of selection of the AGE member by Parliament to avoid

paralysing the institution;

- to provide for the election or appointment of substitute members (at least for international members);

- to provide that the criteria for electing or appointing Constitutional Court judges should take into account gender equality standards, possibly by referring to the relevant applicable legislation;

- to provide that the AGE provides the relevant appointing body with the names of the screened candidates accompanied by its assessment of the moral qualities and

professional competence of each candidate. These assessments should be made available to the public;

- the AGE methodology to assess the moral qualities and legal competence should be

based on best international practice;

- to provide in the law for a solution in cases where the AGE cannot reach a decision;

- to set out a timeframe for carrying out the selection procedure and for submitting the judicial candidates to the appointing bodies;

- to ensure that the decisions by the appointing bodies to appoint or elect or to refuse to appoint or elect are subject to public scrutiny and, therefore, presented to the public;

- to include civil society in the process of selection of the CCU candidate judges with the task of providing information and feedback on the judicial candidates and monitoring the process.

Further detailed recommendations are to be found in the text of the urgent opinion.

It is noted that the request for the urgent opinion was received from the Chairman of the Verkhovna Rada Ruslan Stefanchuk on October 10, 2022. In light of the very limited timeframe, the present urgent opinion only focuses on certain matters; the silence of the urgent opinion on other aspects of the draft amendments should not be interpreted as an implicit approval thereof.

As reported, the Verkhovna Rada is elaborating a draft law on the Constitutional Court reform in terms of the selection of judges on a competitive basis.

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