The paralysed guardian: towards an independent Constitutional Court of Ukraine (Briefing paper)

Prepared by Yulia Kyrychenko, expert at the Centre of Policy and Legal Reform and the Reanimation Package of Reforms.

Ukraine’s Constitutional Court has suffered from a lack of independence since it was established in 1996. The main method for ensuring a pliant court has been the dismissal of judges and the appointment of loyal judges.

The issue of judicial independence came to the fore in 2010, when President Yanukovych used the Constitutional Court to expand his powers by annulling 2004 constitutional amendments aimed at a more balanced system of government.

After Yanukovych was ousted in early 2014, parliament restored the 2004 Constitution and dismissed five judges appointed by parliament who voted to annul the amendments. At the same time, the judges appointed by President and the Congress of Judges retained their offices.

On 2 June 2016, the constitution was amended to strengthen the independence of the judiciary. The changes introduced a requirement for judicial selection by competition and new legal mechanisms, including individual constitutional complaints by citizens.

While these changes are welcome, they are still to be implemented. Parliament has yet to adopt a law on the Constitutional Court to translate the general constitutional provisions into operational law. As a result, the following serious problems persist:

  • there are only 13 Constitutional Court judges out of 18 foreseen by law. It is not possible to appoint new judges, as there are no legal provisions relating to the constitutional requirement on selection by competition
  • the Constitutional Court has failed to make a single judgment in 2017
  • the Court abstains from starting the review of the submitted individual constitutional complaints.

It is therefore urgent that a new law on the Constitutional Court be drafted, consulted on and adopted. It should:

  • be precise on the selection procedure to guarantee true competition among the candidates and minimise the influence of political actors
  • establish a single competition panel to recommend candidates to the authorities that appoint judges (parliament, President and Congress of Judges)
  • regulate competition procedures and all activities and practices of the single panel
  • prohibit authorities from ignoring the outcomes of the competition; appointments should only be made from among those recommended by the panel
  • include specific and precise provisions on dismissal, in particular providing detail on the legal meaning of an “essential disciplinary transgression, gross or systematic negligence of duties incompatible with the office of a justice” or of the “inaptitude for the office held” – criteria mentioned in the Constitution. A procedure for initiating dismissals on such grounds should also be laid out in law.

Read the full paper in Ukrainian


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