Venice Commission recommends reforming Ukraine’s Constitutional Court

This is said in the document of the Venice Commission after President of Ukraine Volodymyr Zelensky requested an urgent opinion of the Commission on the constitutional situation created by the decision of the Constitutional Court of Ukraine dated October 27, 2020.

“The Constitutional Court cannot be “punished” for its decisions, but its working can be improved,” the document reads.

Therefore, the Venice Commission makes the following recommendations as concerns amendments to the Law on the Constitutional Court:

1. Parliament should consider making more explicit its presumed intention to limit the scope of Constitutional Court decisions to the specific questions raised by the parties before it.

2. The Court should be obliged to provide specific reasons for each legal provision which it finds unconstitutional.

3. The disciplinary procedure should be regulated in the Law on the Constitutional Court, with further details set out in the Rules of Procedure.

4. The possibility for the re-opening of cases of the Constitutional Court should be established only when the criminal liability of a judges in relation to that decision has been established (e.g. bribe taking).

5. A better, more detailed, definition of “conflict of interest” should be provided, for example singling out financial conflicts of interest, specifically when this results from protocols established by NAPC or the opening of investigations by NABU.

6. Decisions on (self-) recusals and their reasoning should be set out clearly in the main decision adopted by the Court or in a separate public procedural decision or ruling.

7. The quorum requirements should be reduced in those cases where a quorum is lost due to the recusal of judges, thereby avoiding the risk of non liquet.

8. Parliament should consider adopting legislation detailing the consequences of judges of the Constitutional Court failing to abide by the legal provisions regarding withdrawal, including making public disciplinary proceedings and decisions against judges of the Court.

9. A screening body for candidates for the office of judge of the Constitutional Court should be established, with an international component, which could include international human rights experts and participation from civil society, to ensure the moral and professional qualities of the candidates.

10. When a senate comes to the conclusion that a legal provision is unconstitutional and should be annulled, it should seek confirmation from the Grand Chamber upon request by the President of Ukraine or the Parliament. Grand Chamber proceedings should be held in public hearings as a rule.

In addition, the Venice Commission recommends filling the current vacancies at the Constitutional Court by the Parliament and the Congress of Judges only after an improvement of the system of their appointments.

“In order to depoliticise the composition of the Constitutional Court, the judges on the parliamentary quota should be elected with a qualified majority,” the document notes.

As reported, on October 27, the Constitutional Court recognized unconstitutional Article 366-1 of the Criminal Code on penalties for lies in asset declarations. In particular, the Constitutional Court declared unconstitutional the powers of the National Agency on Corruption Prevention (NACP) to verify officials' asset declarations, monitor the lifestyle of those who submit asset declarations, establish the timeliness of submission of asset declarations, as well as provisions on open access to declarations in the unified state register.

On November 25, 2020, President of Ukraine Volodymyr Zelensky requested an urgent opinion of the Venice Commission on the constitutional situation created by the decision of the Constitutional Court of Ukraine dated October 27, 2020.

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