Photo from UNIAN, Volodymyr Hontar

The European Commission for Democracy through Law, better known as the Venice Commission, has issued a list of 10 recommendations to Ukrainian legislators for amending the law on the Constitutional Court of Ukraine in the light of the ongoing crisis.

The recommendations have been prepared as part of an urgent opinion on CCU reform, released in line with the inquiry of Ukrainian President Volodymyr Zelensky of November 25.

The said urgent opinion is set to be considered at the VC's plenary session on December 11-12 to be endorsed.

The Venice Commission takes the Constitutional Court's decision in question as an indication that "a reform of the Constitutional Court is warranted and as a starting point for reform."

Read alsoUkraine's law on asset declarations has several deficiencies, EU saysTherefore, the Venice Commission has drafted the following recommendations as concerns amendments to the Law on the Constitutional Court:

  1. 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. 2. The Court should be obliged to provide specific reasons for each legal provision which it finds unconstitutional.
  3. 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. 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. 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. 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. 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. 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. 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. 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.

While the procedure before the Constitutional Court and notably aspects relating to the rights and obligations of parties should be regulated in the Law on the Constitutional Court, the Court should be able to define further details of its procedure in its own Rules of Procedure, the VC concludes.

The Commission has also recommended filling the current vacancies at the Constitutional Court by the Parliament and the Congress of Judges only after an improvement of the system of appointments (screening body). The establishment of such a system is therefore urgent to fill these vacancies, the conclusion reads.

"In order to depoliticise the composition of the Constitutional Court, the judges on the parliamentary quota should be elected with a qualified majority. For this, a constitutional amendment would be required at a later stage," the report says.

A "useful practical measure" would be that newly appointed CCU judges should benefit from special, including international, training on constitutional interpretation.

In the process of reform of the CCU the latter should be properly consulted on all aspects of the reform.

"In the light of the specific situation in Ukraine, the Constitutional Court should show some restraint if amended provisions were challenged before the Court. The Venice Commission is available to assist in this matter," the VC wrote.

Background

On December 9, The Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on December 9 issued an urgent joint opinion on the legislative situation regarding anti-corruption mechanisms following the decision of the Constitutional Court of Ukraine to repeal criminal liability for the inaccurate declaration of assets by the country's officials.

The Venice Commission has acknowledged that the Constitutional Court's decision in question "lacks clear reasoning, has no firm basis in international law, and was possibly tainted with a major procedural flaw – an unresolved question of a conflict of interest of some judges."

Also, the VC advised the Verkhovna Rada to look into a number of solutions to the crisis.

"Constitutional crisis" in Ukraine

On October 27, the Constitutional Court, on the motion of 47 MPs, adopted a decision repealing Article 366-1 of the Criminal Code, which had provided for liability for inaccurate declaration of assets by government officials.

The Constitutional Court also recognized unconstitutional the provisions of laws on the verification of e-declarations, and abolished the powers of the National Agency for Corruption Prevention to verify such declarations and identify conflict of interest.

Read alsoLaw reinstating liability for lies in asset declarations needs to be improved – EUOn December 4, the Verkhovna Rada adopted amendments to legislation partially restoring liability for inaccurate declaration of assets.

The law supplements the Criminal Code with Articles 366-2 (declaring inaccurate information by an official) and 366-3 (failure to file a declaration by an official)

The newly-adopted law envisages liability for the said offenses ranging from fines to a ban on holding certain positions or engage in certain activities, while stopping short of introducing prison sentence.

The president is yet to sign the bill into law.