Appointment of judges of anti-corruption court should not contradict constitution - Venice Commission

In its conclusion, the Venice Commission welcomed recent statements by the Ukrainian president regarding the urgency of resolving the issue of creating an efficient "special anti-corruption judicial body," which should be formed on a competitive basis from judges with impeccable reputation and must meet the standards of the Council of Europe and the Venice Commission.

The commission noted the expediency of establishing a High Specialized Anti-Corruption Court, as provided for in the law of Ukraine "On the Judicial System and the Status of Judges." The commission also noted a number of shortcomings in bill No. 6011, which is currently under consideration by the Verkhovna Rada. In particular, experts are worried about the return to political mechanisms for the appointment of judges.

In their conclusion, Venice Commission experts paid special attention to the need "to introduce additional safeguards to ensure that the procedure for the appointment of judges is independent of the executive and legislative powers."

"The fact that the Commission members are designated by political figures/institutions (i.e. the President of the Republic, the Verkhovna Rada - and the Minister of Justice, though with limited discretion) gives rise to concerns. Namely, it may undermine the process of depolarization of the judiciary; the recent amendments to the Constitution and the LJSJ [the law on the judicial system and the status of judges] excluded the legislative and executive powers (Minister of Justice) from the appointment procedure which is now led by the judicial self-governance bodies (HCJ [High Council of Justice] and HQC [High Qualifications Commission of Judges])," reads the opinion.

At the same time, the Venice Commission emphasizes in its conclusion that the procedure for the appointment of anti-corruption judges does not deviate more than necessary from the general appointment procedure in order to dispel any possible doubts about the constitutionality of the law.

The Venice Commission recognizes that certain deviations from the general rules for judges and courts may be admissible, taking into account "the specific challenges of Ukraine in the fight against high-level corruption." At the same time, "deviations from the general rules should be limited." Care must be taken to avoid the possible impression that anti-corruption judges are a different or privileged class of judges or that they are appointed in a procedure that is not justified by the specificities of those courts.

At the same time, the Venice Commission noted that the participation of international experts in the selection of judges is possible, but "with due regard to the principle of Ukraine's sovereignty."

The commission's experts said that special rules for anti-corruption courts and judges (including their appointment and status), which differ from the general provisions of the law of Ukraine "On the Judicial System and the Status of Judges," should be limited to the required level for ensuring effective work.

At the same time, experts emphasized that the Constitutional Court of Ukraine would put an end to the constitutionality of the law, and when adopting the relevant law it is necessary "to reduce the risk that the law could be considered unconstitutional" in comparison with the bills currently under consideration by the Verkhovna Rada.

On October 10, the Venice Commission issued its opinion on bills on anti-corruption courts, which were sent to the commission by the Verkhovna Rada chairman for conducting an expertise regarding the compliance of the bills submitted to parliament with the standards of the Council of Europe.

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