The Attempt of the Constitutional Court of Ukraine to Determine Fundamentals of the Judicial Reform Process – DRI Legal News by Kostyantyn Krasovsky
These views do not necessarily represent the views of DRI
In early 2020, the Constitutional Court of Ukraine (CCU, or “the Court”) decoded a number of cases which in effect represented a systemic analysis of “checks and balances” in the Constitution of Ukraine and developed its strategic vision of the judicial reform process. On 18 February 2020, Decision No.2-r/2020 was rendered upon the constitutional motion of the “old” Supreme Court of Ukraine (SCU) regarding the fate of the key law of judicial reform carried out by former president Petro Poroshenko. On 11 March 2020, Decision No.4-r/2020 finalised the case upon the constitutional motion of the “new” Supreme Court (SC) regarding the attempt at judicial reform initiated by President Volodymyr Zelensky. These two decisions, as well as numerous separate dissenting opinions by CCU judges, demonstrate the extent to which the Court seized its opportunity. It is noteworthy that six separate opinions were added to Decision No.2-r/2020, and four to Decision No.4-r/2020.
1. The decision regarding the fate of the “old” Supreme Court of Ukraine
On 2 June 2016, the Ukrainian Parliament adopted amendments to the Constitution of Ukraine concerning the judiciary (Law 1401-VIII); it marked the end of the constitutional phase of the judicial reform initiated in 2014 by former president Petro Poroshenko, and the beginning of a new, legislative stage. Along with other relevant pieces of legislation, the new Law of Ukraine “On the Judiciary and Status of Judges” (Law 1402-VIII) was adopted. While the SCU publicly supported the need for a radical overhaul of the judicial branch, it used its right to appeal to the Constitutional Court, stating that Section XII “Final and Transitional Provisions” of Law 1402-VIII contained “some provisions, the essence, content and practical implementation of which, in the opinion of the SCU Plenum, do not conform to the Constitution of Ukraine”. It is noteworthy that the SCU did not question the constitutionality of the general substantive rules of Law 1402-VIII, which, being guided by new constitutional approaches, concerned the organisation of the judicial branch and the status of judges. The SCU disagreed only with procedural rules contained in transitional provisions of this law that regulated technical issues of the transition to the new system. The SCU questioned the constitutionality of provisions concerning the termination of activities and liquidation of the SCU, as well as of higher specialised courts; the establishment, commencement of activities and selection and appointment of judges of the new Supreme Court; the termination of powers of judges whose five-year tenure was over; provisions for the release of judges from office based on the results of their evaluation; and the determination of judicial remuneration and permanent financial allowance.
1.2. Decision No.2-r/2020
In this decision, responding to the case brought by the SCU, the CCU indicated that the Ukrainian Parliament should comply with constitutionally defined boundaries regarding the status, organisation, functioning and activities of constitutional bodies and their officials. It determined the necessity of applying the principle of institutional continuity when making changes to the Constitution of Ukraine. According to the CCU, this principle had been followed when the “highest institute of judicial power” was reformed, and “the removal of the word ‘Ukraine’ – the name of the state – from the word combination ‘the Supreme Court of Ukraine’ did not affect the constitutional status of this public authority”. The constitutionality of provisions of Law 1402-VIII regarding the establishment and commencement of activities of the SC, the beginning of the contest, and the appointment of SC judges was confirmed. The CCU also stated that the legislator “acted within the limits of its constitutional powers” when determining the necessity for judges whose five-year tenure had expired to participate in the contest. It emphasised that such requirements result from the transitional provisions of the Constitution of Ukraine.
Considering the issue of termination of the activities of the SCU and higher specialist courts and their liquidation, as well as the participation of these courts’ judges in the contest for SC judges, the CCU set aside a small aspect of these issues relating to the SCU and its judges, and found these provisions to be unconstitutional in part. In particular, the CCU referred to the unconstitutionality of SCU “liquidation” and the right of SCU judges to participate in the SC contest – as, in its opinion, “the body specified in the Constitution was renamed” and SCU judges should have been transferred to the SC, as “there is no difference between the legal status of judges of the Supreme Court of Ukraine and judges of the Supreme Court”. It is interesting to note that, in parallel, the CCU confirmed the need for SCU judges to pass a qualification evaluation, albeit one based on a special procedure and criteria. The CCU did not develop this position further, so it is not clear what is meant by “special” or the “criteria” of such a procedure, beyond subparagraph 4 of paragraph 16 of the Transitional Provisions of the Constitution of Ukraine.1 In addition, as expected, given its previous practice, the CCU approached the issue of a differentiated approach to the calculation of a monthly allowance for judges depending on how well they performed in the qualification evaluation. The CCU noted that the establishment of “different approaches to the procedure for calculating lifetime monthly allowances for judges violates the status of judges and guarantees of their independence”, and it recognised this provision as unconstitutional.
The simplification of approaches and the absence in the final text of the in-depth analysis of the full range of issues faced by the CCU in this case caused six judges to write separate opinions expressing additional arguments or partial disagreement. For example, Judge Oleh Pervomaiskyi spoke explicitly about the fallacy of the CCU’s methodology of constantly reducing the text of its analysis, which results in “a kind of ‘gap’ in the legal reasoning of the Constitutional Court”. To minimise the risk of an erroneous interpretation of the content of this decision, Judge Pervomaiskyi proposed, in particular, a clearer approach to solving legal problems concerning the liquidation of the SCU and the establishment of the SC. He stressed that the decision ignored the problem of termination and liquidation of the SCU as a constitutional body and legal entity of public law, and emphasised that it was not possible to go beyond the qualification-evaluation criteria established by the Constitution of Ukraine. Judge Ihor Slidenko, the rapporteur in the case, denied the entire basis of the CCU decision, seeing a continuation of the 2014 lustration discourse in the 2016 judicial reform, thus aimed at resetting the judicial system. In his opinion, the constitutional conflict lies in the way the SCU was transformed. Judge Serhiy Holovatyi argued that there were no legal grounds to find the provisions of Law 1402-VIII unconstitutional. He stated that the SCU was not liquidated as a constitutional body, and that issues relating to the termination (liquidation) of the SCU as a legal entity “are not subject to constitutional regulation, and the fact that the legislator solved them by adopting an ordinary law cannot contradict the Constitution of Ukraine”. In addition, he referred to Clause 12 of the Transitional Provisions of the Constitution, which provides for the establishment of a new judicial system, emphasising that it is possible to clearly define a time reference for termination of the “old” SCU and commencement of activities of the “new” SC, and thus that there are no “legal grounds” for questioning the constitutionality of the provisions concerning termination of the SCU. Judge Holovatyi also disagreed with the position regarding the inalterability of the legal status of the SCU and found this status to be fundamentally new.
2. The decision regarding the attempt to carry out new judicial reform
On 29 August 2019, President Volodymyr Zelensky submitted numerous draft laws to the new Ukrainian Parliament. Among them was draft law No.1008 “On Amendments to the Law of Ukraine on the Judiciary and Status of Judges and Some Laws of Ukraine on Activities of Judicial Authorities”. Within a very short time the relevant law (Law No. 193-IX) was adopted and entered into force, establishing new rules regarding the structure and role of the High Council of Justice, and the new status and procedure for establishing the High Qualification Commission of Judges of Ukraine (HQCJU). It reduced the number of judges in the new SC and put in place a new procedure and new rules for judges’ disciplinary responsibility.
Already at the stage of the parliamentary procedure of adoption of the draft law, the High Council of Justice approved the “Advisory Opinion regarding Draft Law No. 1008” on 5 September 2019, providing thorough comments on it. On 16 September 2019, the Plenary Meeting of the Supreme Court (SC), in its opinion regarding the draft law, insisted that the proposed changes in the law would pose a significant risk to the independence of the judicial branch. Once the law was adopted, the SC went to the CCU to challenge the constitutionality of the provisions regarding the reduction in the number of SC judges; the reduction in judicial remuneration; the change in the number of members of the HQCJU; the creation of the Integrity and Ethics Commission and the scope of its competency; the simplification of procedures for holding judges disciplinarily responsible; and the change in the grounds and procedure for dismissing a member of the High Council of Justice.
2.2. Decision No.2-r/2020
In this decision, the CCU addressed the risks related to the independence of the judicial branch, which not only raised concerns among representatives of the judicial community and professional legal associations, but also became the subject of critical statements issued by representatives of Ukraine’s civil society, business community and international partners. The Venice Commission had issued a critical opinion, CDL-AD(2019)027, in which it underlined the strategic drawbacks and risks of Law 193-IX. Based, inter alia, on the principle of institutional continuity set out in Decision No.2-r/2020, the CCU defined a legislative reduction in the number of judges in the SC and technical issues related to the new “selection” of SC judges as an organisational tool, one that should be preceded by consultations between the President of Ukraine and the High Council of Justice. The CCU also confirmed its repeatedly stated position on the unconstitutionality of legislative attempts to “arbitrarily set or change the amount of remuneration for judges, using its powers as a tool to influence the judicial branch”.
On the questions of the HQCJU the Court found that “no other body or institution is authorised to perform constitutional functions of selecting and evaluating judges, including the High Court of Justice” and it noted that changing the order of establishment and the number of members of the HQCJU “without introduction of an appropriate transition period has resulted in the suspension in implementation of constitutional functions”. This change was therefore declared unconstitutional. Turning to the Integrity Commission, the CCU found that its powers to control the activities of members of the High Council of Justice and SC judges “have no constitutional basis”.
The CCU carefully considered the grounds and procedure for holding judges disciplinarily responsible and agreed with the position of the SC that such changes are unconstitutional. The CCU stressed that they “do not provide for a reasonable, commensurate (proportionate) and predictable procedure of disciplinary proceedings against a judge, [or a] fair and transparent way of holding a judge disciplinarily responsible”.
The judges’ separate opinions included a number of critical remarks. Judge Oleksandr Kasminin drew attention to the participation of representatives of the international community in the establishment of the Integrity Commission in the context of “constitutional sovereignty”. Judge Ihor Slidenko emphasised the lack of analysis of the legitimate purpose of the amendments in the CCU’s decision, treating this as “legislative fraud” aimed at “hiding [the] true motives of the so-called ‘2019 judicial reform’”. Judge Oleh Pervomaiskyi focused on the incomprehensibility of the motives and reasons for the hasty introduction of the disputed changes and the absence of proper public and professional hearings, or of proper communication between the branches of government. He drew attention to what he considers to be an artificial concept of “choice of judges” which was meant to replace the constitutionally defined concept of “selection of judges” and be used to reduce the number of SC judges. Judge Vasyl Lemak outlined the difference in approaches to changes in the judicial sector, making a comparison between the 2016 reform, which was carried out both at the constitutional and the legislative level, and the 2019 reform, which proposed changes only at the legislative level and “was not implemented in practice”. He also pointed out that there was no justified reason for the 2019 reform, and discussed a violation of the constitutional procedure of the legislative initiative as attempting to reorganise the SC. Finally, he offered other arguments regarding the violation of the principle of institutional continuity and integrity by the Parliament when terminating the powers of HQCJU members.
In the first case to deal with the 2016 judicial reform, the CCU did not fully seize the opportunity to provide proper answers to the deep-rooted constitutional problem of interaction between various branches of government during the implementation of strategic reforms. The judges’ need to compromise, for the sake of a positive vote did not allow for deeper answers on some questions. The vote is therefore somewhat formalistic and overly positivistic. By contrast, in the second case, concerning the judicial reform attempted in 2019, one can agree with Judge Oleh Pervomaiskyi, who described the Court’s approach as a “not ideal but quite conscious and necessary attempt” to stand up for judicial independence, eliminate risks to the autonomy of the judicial branch, and provide constitutional guarantees for the functioning of the judiciary.
The general impression from the two decisions analysed is that the Constitutional Court of Ukraine, despite some shortcomings, is gradually moving towards its true role as a constitutional arbiter, as set out in the 1996 Constitution of Ukraine and emphasised by the 2016 judicial reform.
 As rightly noted by Judge Oleh Pervomaiskyi in his separate opinion to Decision No.4-r/2020, “as a subject of legislative initiative, the President of Ukraine did not qualify these changes to the legislation as a ‘judicial reform’”, and Judge Ihor Slidenko in his Votum Separatum to the same decision referred to “manipulations aimed at legislative changes” within “the so-called 2019 judicial reform”.
 It is noteworthy that the text of the dissenting opinion of Judge Serhiy Holovatyi, in which he analysed arguments presented in the constitutional motion and determined that they were groundless, extends to 54 pages, while Decision 2-r/2020 itself contains only 18 pages.
 A separate opinion of Judge Oleh Pervomaiskyi in Decision No.4-r/2020.
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