Between Ethics and Fragility: Ukraine’s Constitutional Court Codifies Ethical Standards

Oleksandr Vodiannikov

Oleksandr Vodiannikov is a Justice of the Constitutional Court of Ukraine.

On 22 July 2025, the Constitutional Court of Ukraine (CCU) adopted its first-ever ‘Rules of Professional Ethics’ – a landmark development that places Ukraine among a small but growing group of jurisdictions where constitutional justices are subject to a dedicated, self-contained ethical code.

While general judicial ethics frameworks are widespread, formal rules specifically tailored to constitutional courts remain the exception rather than the rule in Europe and beyond. What makes Ukraine’s case especially noteworthy is that the ethical mandate was not reactive – there was no scandal forcing institutional introspection – but was instead preemptively embedded in legislation as early as 2017. It has taken the Court nearly a decade to implement what lawmakers had already anticipated: the need for a bespoke ethical regime for a constitutional body detached from the general judiciary.

This blog explores why the Rules matter, how they compare with available similar instruments, and what their adoption reveals about constitutional ethics, institutional fragility, and the contested space between judicial discretion and democratic accountability in Ukraine’s legal order.

A Court Apart: From Judiciary to Constitutional Distinctiveness

When the 1996 Constitution established the CCU, the Court was expressis verbis situated within the judicial branch. Accordingly, its justices were bound by the ethical framework of the general judiciary. However, the 2016 constitutional amendments that introduced constitutional complaint and profound reform of the judiciary, removed the Court from the judiciary and placed it outside the traditional trias politica. This redefinition required not only procedural adaptation but also a reimagining of judicial ethics for a constitutional body with unique powers and functions.

The revised Law on the Constitutional Court (2017) reflected this shift: Article 11 mandated that justices comply with "standards of professional ethics," deliberately departing from the terminology of "judicial ethics" used in Ukraine’s Law on the Judiciary. Notably, Ukraine introduced this ethical mandate proactively. Unlike Germany or the United States, where codes of conduct were adopted in response to public criticism, Ukraine's legislative drafters anticipated the need for a bespoke ethical framework. The 2017 law was passed without any objection with respect to Article 11.

A further distinctive feature of the Ukrainian model lies in the institutional character of the Rules. Article 11 of the Law on the Constitutional Court of Ukraine treats the standards of professional ethics as a formal act of the Court as an institution. The Rules are adopted by the Court itself, through an official resolution, and their observance is integral to the Court’s public credibility and institutional integrity. This stands in sharp contrast to the approach in countries such as Germany and the United States, where codes of conduct are framed as collective undertakings by the justices rather than formal institutional acts. In Germany, the Code of Conduct of the Federal Constitutional Court is a soft-law text adopted as internal guidance by the justices. In the U.S., the 2023 Code of Conduct for Supreme Court Justices is an ethical framework that declares individual compliance, yet explicitly refrains from imposing institutional enforcement mechanisms.

Ukraine’s approach differs fundamentally: the Law on the Constitutional Court treats ethical regulation not as a matter of judicial honor alone, but as a visible, institutionalized standard of constitutional governance. In this respect, the Rules function both as a guide for judicial behaviour, and as an expression of the Court’s collective responsibility toward the public and the legal system as a whole.

This institutional framing also distinguishes the Rules from Ukraine’s Code of Judicial Ethics, which is adopted by the Conference of Judges of Ukraine – the self-governing body of the judiciary. While the judicial code reflects a corporate commitment of the judicial community, the Constitutional Court’s Rules function as a normative act of the Court as a constitutional institution, reinforcing its distinct status outside the judicial branch. The contrast reflects deeper structural differences: whereas the ordinary judiciary is governed by a hierarchical and corporatist model of self-regulation, the Constitutional Court – detached from that structure –must assert its ethical legitimacy through institutional regulation.

The rationale behind this legislative choice is multifaceted. Unlike ordinary judges, who enjoy life tenure and are integrated into a hierarchical, career-based judiciary, constitutional justices serve a non-renewable, nine-year term and are recruited from diverse professional backgrounds –including academia, legal practice, and public service – many without prior judicial experience. This diversity of origin, combined with the collegial and autonomous nature of constitutional adjudication, necessitates a common normative framework that transcends individual professional cultures. The adoption of ethical rules as an institutional act ensures both collective responsibility and public visibility, establishing a normative framework that transcends the tenure of individual justices and provides stability and continuity amid the Court’s regularly changing composition.

Why Did It Take Nearly a Decade?

Despite this clear legal requirement, the Court delayed formal adoption of the Rules for nearly eight years. This delay stemmed not from conceptual complexity, but from institutional dysfunction: internal fragmentation, absence of leadership, and recurring institutional crises. Justices appeared reluctant to bind themselves to a shared ethical framework amid deep mistrust and reputational challenges.

Even in 2025, the Constitutional Court experienced a six-month paralysis due to the lack of a quorum (see here, and here), which left it unable to issue decisions or hear cases. With the eventual appointment of the twelfth justice, the Court was able to accelerate its work, and among the first actions taken upon regaining minimal functionality was the adoption of the long-overdue ‘Rules of Professional Ethics’. The decision was thus not merely a matter of legal compliance, but also a deliberate act of institutional self-rescue and reputational recovery. At the same time, the episode underscores a deeper systemic problem – the Court remains a hostage to the protracted judicial appointment process, which is now stalled in the Parliament.

Substance of the Rules: Ethics for a Fragile Institution

The ‘Rules of Professional Ethics’ are detailed, context-sensitive, and forward-looking. While they align with international standards, including the Bangalore Principles, and share themes with the German Federal Constitutional Court's Code of Conduct and the 2023 US Supreme Court Code of Conduct, Ukraine's Rules are more sensitive to the current issues that plague the Court.

Perhaps the sharpest structural and philosophical contrast between the Ukrainian and German approaches emerges not from the contents of the Rules alone, but from their very title and grammatical form. The Ukrainian Rules consistently refer to “the justice” of the Constitutional Court in the singular, while the German Code of Conduct operates in the plural, addressing “the justices” as a collective. This divergence is not merely a linguistic or stylistic choice, nor is it a borrowing from the U.S. Supreme Court Code, which also uses the singular form. Rather, it flows from the wording of Article 11(2) of the Law on the Constitutional Court of Ukraine, which mandates the establishment of standards of professional ethics for “a justice of the Constitutional Court”.

The rationale behind this formulation is normatively significant. First, it emphasizes the individual responsibility of each justice as the bearer of judicial office, rather than framing ethics as a matter of institutional collegiality. Second, the singular form highlights the moral status of the justice as a constitutional actor, rather than merely serving as a member of a college. Third, each constitutional justice in Ukraine holds a personal mandate rooted directly in the Constitution, reinforcing the idea that ethical obligations arise not from group affiliation but from the constitutional nature of the individual office. Finally, by addressing the ‘justice’ rather than ‘justices’, the Rules assume the tone of a moral imperative, appealing to conscience and personal integrity, and avoiding the dilution of responsibility often associated with collegiate bodies.

Structurally, the ‘Rules of Professional Ethics’ are organized into four sections: General Principles, which articulate core ethical values; Extra-Judicial Activities, which set boundaries for public and professional engagement; Conduct Following Termination of Office, which extends ethical obligations beyond a justice’s official tenure; and Final Provisions, which address implementation, interpretation, and amendment procedures.

Rule 1 defines the three spheres in which ethical standards are to be observed: a justice’s official conduct, extra-judicial behaviour, and private life. Within each of these domains, a constitutional justice is required to adhere to what are described as the “generally recognised ethical principles of judicial conduct”, namely independence, impartiality, honesty, incorruptibility, competence, and conscientiousness. These principles reflect the constitutional bench’s own interpretation of the requirement set forth in the Constitution that a candidate for the position of justice must possess “high moral character” – an abstract standard now rendered more concrete through the articulation of these generally recognised ethical principles.

By referring to “generally recognised ethical principles”, the Rules position themselves not merely as forward-looking guidance, but as a benchmark for evaluating both present and past conduct. This inevitably raises the question of retroactivity. While the Rules are formally non-retroactive, their adoption inevitably reshapes institutional expectations and public judgment, contributing to what might be called a culture of ethical memory. Unlike legal norms, the field of ethics is not bound by rigid presumptions against retroactivity. It evolves with context, and its benchmarks may shift – sometimes rapidly – under the pressure of changing societal standards. It can more easily operate retrospectively, serving not as a basis for sanction, but as a moral lens through which prior conduct is interpreted.

This raises a broader question for further exploration: even if retroactive application of ethical standards takes a non-punitive and interpretive form, is it fair to assess past conduct through the lens of norms that were only later codified? In navigating the space between evolving ethical expectations and individual accountability, the line between moral guidance and retrospective judgment remains a delicate one.

Codes of conduct are shaped by the specific ethical challenges, institutional culture, and historical experience of the body that adopts them – and the Constitutional Court of Ukraine is no exception. The Rules bear the imprint of the Court’s fragile institutional trajectory, its struggles with quorum and legitimacy, and the broader constitutional context of a state undergoing democratic transition in wartime. Several features stand out:

Self-Recusal and Quorum Sensitivity: The Rules provide that where there is a risk of the Court lacking the quorum necessary to adopt its decisions, a justice must take into account that the public interest in ensuring the Court’s ability to adjudicate may, in exceptional circumstances, take precedence over grounds for recusal – provided that such grounds are not substantial and do not compromise the justice’s impartiality. This pragmatic clause responds directly to the Court's current quorum crisis and institutional fragility.

Separate Opinions and Public Commentary: The Rules reaffirm the right to dissent but caution against dissenting opinions that undermine the Court's authority or legitimacy. Justices are also advised to refrain from media commentary or social media activity that could create an appearance of political alignment or erode public trust.

Legislative Engagement: Participation in law reform is allowed only when it directly concerns the procedures of constitutional adjudication. This limits political entanglement while preserving the Court’s institutional expertise.

Post-Mandate Conduct and Wartime Ethics: Ethical obligations continue after a justice's term, requiring confidentiality and dignified public conduct. Uniquely, the Rules affirm support for Ukraine's defense as a civic and ethical duty of justices during wartime.

A Rare but Crucial Ethical Step

Ethics codes tailored for constitutional courts remain the exception rather than the rule. Most such courts either rely on general judicial ethics or operate within informal traditions of decorum. Ukraine’s Constitutional Court now joins a small but growing group of institutions that have taken the step of adopting a distinct ethical regime.

And it has done so not in triumph, but in transition – amid war, institutional fatigue, and democratic reconstruction. If the adoption of the Rules was long overdue, it is nonetheless crucial. It provides the Court with an internal compass, sends a message to Ukraine’s citizens and international partners, and offers a modest but meaningful signal of constitutional maturity.

Oleksandr Vodiannikov is a Justice of the Constitutional Court of Ukraine.

Suggested citation: Oleksandr Vodiannikov, ‘Between Ethics and Fragility: Ukraine’s Constitutional Court Codifies Ethical Standards’ IACL-AIDC Blog (09 September 2025) Between Ethics and Fragility: Ukraine’s Constitutional Court Codifies Ethical Standards — IACL-IADC Blog