Why the Selection Process for Judges of Ukraine’s Constitutional Court May Become a Stumbling Block for EU Membership

Sergiy Panasyuk

Ukrainian-American Concordia University

Four days after the full-scale Russian invasion of Ukraine, President Zelenskyy signed an application for membership in the European Union (EU) under a special fast-track procedure. It was argued that this step would aid the country in defending itself against invasion by Russian forces while also making Ukraine part of a supranational organization as it deserves. 

The Ukrainian path to EU membership was legally enshrined at the highest legislative level in 2019, when the Ukrainian parliament added to the constitutional provisions that proclaimed the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine.

However, prior to attaining full EU membership, Ukraine needs to comply with many criteria and follow the EU official bodies’ recommendations on a range of matters. One such recommendation is a reform of the procedure for appointing judges to the Constitutional Court, and in particular a recommendation by the Venice Commission to include international experts in the selection body. Unfortunately, it seems that Ukrainian authorities are not heeding these recommendations, putting at risk Ukraine's further integration into the EU.

International Involvement in the Selection of Judges 

The European Council’s decision to grant the status of EU candidate country to Ukraine was characterized as a historical moment by the Council’s President Charles Michel, and as a defining moment for Europe by the European Commission President Ursula von der Leyen. The President of Ukraine added that such a decision was a recognition that Ukraine was neither a pillow between the West and Russia, nor a buffer between Europe and Asia, but a future equal partner for at least 27 EU countries. The decision was not only a political step but also operationalized the amendments to the Ukrainian constitution made in 2019 that prescribe the way for Ukrainian membership in the EU. 

However, to become a full member of the EU, Ukraine is required to implement the European Commission’s recommendations, a central part of which relate to judicial appointments. The recommendations require the country to “enact and implement legislation on a selection procedure for judges of the Constitutional Court of Ukraine, including a pre-selection process based on evaluation of their integrity and professional skills, in line with Venice Commission recommendations”. 

In 2017, the President of Ukraine established a commission for the selection of judges of the Constitutional Court, the members of which included international observers/participants.  In 2020, the Venice Commission encouraged Ukraine to establish a selection body with international and domestic participation for all candidates to the Constitutional Court, citing the screening mechanisms of the Court of Justice of the European Union and the European Court of Human Rights as examples. The Venice Commission also commended as a positive example the Ukrainian authority’s proposed ‘Ethics Commission’ and ‘Competition Committee’, both with mixed national and international composition, that would ensure the integrity of members of the ordinary judiciary and the High Council of Justice.

In 2021, the Ukrainian Parliament added  the new Article 9-1 to the Law on High Council of Justice to create the Ethics Council as an independent advisor to the High Council of Justice’s selection procedure. This law provides that members must be people of integrity with relevant legal experience, and include judges or retired judges, as well as persons nominated by the Council of Judges, Council of Prosecutors, Bar Council and National Academy of Legal Sciences of Ukraine. As a transitional measure, the first Ethics Council should include additional international or foreign experts. As a result, three of the six members of the current Council were nominated by international organizations that have provided technical assistance to Ukraine.

Concerns about Sovereignty

One of the possible reasons for hesitancy in adopting the Venice Commission recommendations, is the concern, noted by the High Council of Justice and some of the Constitutional Court Judges, that the delegation of these governmental functions to international experts could violate sovereignty.

In 2020, Judge Kasminin of the Constitutional Court of Ukraine, in a Separate Opinion in a decision on the constitutionality of certain provisions of the law relating to the judiciary and status of judges, noted the need for more detailed consideration of the proposed participation of international experts participation in public authorities. Recalling Article 38 of the Constitution of Ukraine, Judge Kasminin recalled that citizens have the right to freely elect and be elected to public authorities and local governments. In his opinion, the power to select candidates for public office and to exercise public functions cannot be delegated to international organizations which are not democratically responsible to people of Ukraine.  Moreover, when amending or adopting a new law, the Parliament must be guided by the guarantees and principles enshrined in the Constitution of Ukraine. The delegation of power that ‘belongs exclusively to the Ukrainian people’ to international or foreign organizations, contradicted the Constitution of Ukraine. 

In 2021, the High Council of Justice, which is involved in the selection of candidates for judicial office, deployed a similar logic when it asked the Supreme Court (by constitutional petition) to require the Constitutional Court of Ukraine to check the constitutionality of some legislative provisions, including provisions about the participation of international organizations and experts in the previously mentioned Ethics Council.  In 2021 the Supreme Court sent a constitutional petition in respect of this matter to the Constitutional Court. 

The New Law 

Despite these objections, the impulse to grant international experts an advisory or consultative role (and not determinative or decisional power) also animated the draft Law "On Amending Some Legislative Acts of Ukraine Regarding Improving Procedure for Selecting Candidate Judges of the Constitutional Court of Ukraine on a Competitive Basis" that was registered in the Ukrainian Parliament on 12 August 2022. The draft law provided that three of the six members of the Advisory Group of Experts for selecting candidates for judgeships at the Constitutional Court would be drawn from an international pool of experts. This move was welcomed by the Venice Commission in its urgent opinion of November 2022. It encouraged Ukrainian authorities to fully implement its previous recommendations and also advised that the Advisory Group of Experts should comprise seven members, with the seventh being drawn from an international pool.

However, the Ukrainian Parliament seems to be trying to avoid international advice and, in fact, partly mislead its international partners. Following the positive feedback from the Venice Commission, the Parliament voted on amendments to the draft law and the law that was finally voted for on 13 December 2022 and signed by the Speaker on 14 December 2022 did not include a real international component in the Advisory Group of Experts at all. The law as passed provided that the international experts in the Advisory Group could participate only as advisors in the selection of candidates, and only for a transitional period of six years. Decisions about selection and appointment would lie with the Ukrainian Cabinet of Ministers.  Moreover, the law provided that even if a candidate for the Constitutional Court does not meet the requisite criteria for appointment in the opinion of Advisory Group of Experts, the Parliament may nevertheless vote to appoint that candidate to judicial office. 

On 19 December 2022, the Venice Commission published an updated Opinion, noting that the law adopted by the Ukrainian Parliament could not be examined because the Ukrainian Government had relayed only the Ukrainian language version. Even without the benefit of a translation, the Venice Commission recommended a range of changes.

Even so, on 20 December 2022, the President of Ukraine signed into law the final draft as voted for by the Parliament, choosing to ignore the further recommendations of the Venice Commission.  There thus appears to be a gap between Ukraine’s rhetoric on EU membership and its legislative actions – a gap which, if left unaddressed, could jeopardize its path to becoming a member of the European family.

Sergiy Panasyuk is a Professor in the Department of General Studies of the Ukrainian-American Concordia University (Kyiv, Ukraine); a Professor in the Department of Law of the European University (Kyiv, Ukraine); an academic consultant to the Judge of the Constitutional Court of Ukraine (2017-2022).

Suggested Citation: Sergiy Panasyuk, ‘Why the selection process for judges of Ukraine’s Constitutional Court may become a stumbling block for EU membership’, IACL-AIDC Blog (23 February 2023) https://blog-iacl-aidc.org/2023-posts/2023/2/23/why-the-selection-process-for-judges-of-ukraines-constitutional-court-may-become-a-stumbling-block-for-eu-membership.