The Constitutional Court (CCU) reform is one of the most problematic in modern Ukrainian history. In 2020, the CCU de facto cancelled electronic declaration and other anti-corruption reforms. Then, at the request of President Zelensky, the Venice Commission (VC) adopted an urgent opinion in which it clearly stated: it is necessary to depoliticise the procedure for selecting judges. Since then, the VC has repeated this position twice, but the reform stood still. 

Everything was about to change when the introduction of the competitive selection of judges of the CCU was set up as number 1 on the list of seven points necessary for the further European integration of Ukraine. After all, the vast majority of successful Ukrainian reforms succeeded precisely because they became the conditions of important international cooperation programmes. The strong position of Ukraine's foreign partners concerning these reforms worked wonders.

But this time, it turned out that even the highest place on the international agenda does not guarantee success. For example, the opinion of the Venice Commission regarding the reform changed several times, and the Verkhovna Rada, contrary to the position of international partners, adopted a law, the implementation of which never began.

It doesn't even help that the opening of negotiations on Ukraine's accession to the EU is at stake (and in the coming weeks, the EU must adopt its interim evaluation of the fulfilment of the criteria, the first of which is the reform of the selection of judges of the CCU).

On the contrary, right now, everything has become more complicated.

Draft law No. 9225, which is supposed to solve the problem but only deepens it, was registered in the Verkhovna Rada.

However, not only Ukraine but also the European Union is acting atypically. The EU gives signals about its readiness to give in to principles and "so as not to annoy the Ukrainian authorities" and "move forward", it is ready to agree to the formula for the selection of the CCU judges, which with a high probability will allow the current political authorities to seize control of the CCU for years.

Why does the government need control over the Constitutional Court

Let’s make it clear. Both President Zelensky and a large part of his team are making enormous efforts to resist brutal Russian aggression and lead Ukrainian to victory. In this regard, society and the government are united as much as possible.

But in the President's team, there are still people in key positions who do not know any other style of state management than the manual one. And the tendencies towards the concentration of power are even more pronounced in times of war.

At this time, the role of the Constitutional Court is growing, the main task of which is to protect the Constitution and the system established by it from usurpation attempts and to protect people from arbitrary decisions of the state. For this purpose, the CCU can declare laws, decisions of the President and the government unconstitutional. 

Being aware of the power of the Constitutional Court, politicians have always tried to control it. It was the CCU that at one time allowed President Kuchma to run for office for the third time, approved the scandalous strengthening of President Yanukovych's powers, etc., and in 2020 it was the CCU that cancelled electronic declaration, which created a real crisis. Currently, cases regarding the constitutionality of key institutional reforms are under consideration of the CCU, such as the creation of the High Anti-Corruption Court, judicial reform in general, the introduction of the land market, health care reform, etc.

Furthermore, the Constitutional Court will also significantly influence the political landscape of Ukraine after its victory in the war with Russia because it will decide when exactly the presidential and parliamentary elections should take place after the lifting of martial law.

What’s wrong with the new draft law

Back in 2020, the Venice Commission adopted an urgent opinion on the reform of the Constitutional Court. The VC stated that past high-profile decisions are a consequence of the political dependence of judges, and the solution is in the introduction of an independent procedure for their selection. For this purpose, a politically independent commission should be created, which would consist of international experts and representatives of the public. After that, the VC repeated the same twice more in other opinions.

Ukrainian authorities were in no hurry to implement this recommendation until it became one of the EU's requirements for Ukraine to maintain its candidate status.

In November 2022, the Verkhovna Rada hastily adopted a law, which, however, did not meet the recommendations of the VC. The composition and decision-making procedure of the Advisory Group of Experts (AGE), which was supposed to carry out the selection of candidates for the CCU, maintained political control over the process.

According to this law, the AGE was to include three experts delegated by international partners and three members appointed by the Verkhovna Rada, the President, and the Congress of Judges.

Under this model, the support of political appointees is required for a candidate to win the majority of votes. In fact, they retain the right to block independent candidates that the authorities do not like. Responding to this danger, the VC clearly emphasised in the new opinion that the commission's independence can only be guaranteed by adding a seventh member delegated by international partners to its composition.

Ukraine tried to "ignore" this requirement, so the VC refused to delegate its representatives to the AGE until the law is amended. The EU also joined this position.

However, the Parliament again pretends that this problem does not exist.

Contrary to the position of Ukrainian experts and the previous opinions of the Venice Commission, draft law No. 9225 not only does not add a seventh member to the composition of the AGE but also increases the role of political appointees: a candidate can be recommended for appointment if his candidacy is supported by 5 out of 6 members of the AGE.

Thus, only those candidates who received the support of two politically engaged members of the AGE will have a chance to be appointed as a judge of the CCU.

International experts will also retain the right to eliminate those candidates whose backgrounds they find unacceptable. However, they will not be able to greenlight truly independent candidates, who will be "knocked down" by political appointees.

Why this model will not work

Those who defend this model and oppose the implementation of the recommendation of the VC on seven members of the AGE, including four independent members, refer to the success of the Ethics Council, which carried out the reform of the High Council of Justice, or the commissions that conducted competitions for NABU, SAPO and HQCJ.

Like, the contests have ended there, and therefore, the 3+3 format with the casting vote of international experts is quite effective.

But in fact, on the contrary, this experience has shown that the 3+3 model does not provide for the selection of the most effective candidates because it forces foreign members to make compromises. Furthermore, international experts did not want to enter into a confrontation and did not often use their right to a casting vote. And in addition, commission members appointed by the government have the right to veto the appointment of those candidates whose independence they consider a threat.

Under such an approach, only those whom the authorities consider "safe" and in whom international experts do not find problems, such as low integrity or political dependence, can win in the competition (we emphasise – "do not find" does not mean that these problems do not exist).

In addition, the authorities continue to make absurd arguments such as "the casting vote of international experts is a loss of sovereignty". However, anyone familiar with the course of judicial reform in Ukraine knows that the greater the proportion of independent international experts in commissions for the selection of judges and other officials, the higher the quality of the selection, which ultimately only strengthens sovereignty and independence.

Moreover, international partners can also nominate Ukrainian experts, thus involving independent specialists of the Ukrainian legal and expert communities who perfectly understand the local context.

Therefore, the only way to ensure the independence of the AGE is to ensure that the majority of its members are not politically dependent and can make decisions independently. For this, the seventh member delegated by international partners should be added to the composition of the AGE, and decisions should be made by four votes, as the Venice Commission and the EU have previously emphasised.

We highlighted the word "earlier" because we have no certainty that the Venice Commission, whose experts will evaluate draft law No. 9225 this week, will not decide to destroy its own position, as well as the position of Ukrainian experts.

What is wrong with the Venice Commission

For many years, the Venice Commission had a reputation in Ukraine as a body with high-quality and independent legal expertise on constitutionalism and reforms in the sphere of the rule of law.

However, something went horribly wrong in December 2022, and that is what triggered the current events.

Then the Commission actually made a U-turn from its own recommendations in the preliminary opinion regarding draft law No. 7662 on the selection of judges of the CCU, which was adopted under an urgent procedure. That decision contained factual errors and a number of very strange assessments, based on which the Commission came to an even more strange conclusion: although political appointees in the AGE will lead to greater politicisation of the process, nothing can be done about it because Ukraine is in a "special situation".

Later, however, the Venice Commission adjusted its position.

During the consideration of the same issue at the plenary session, it admitted: there should be seven members of the AGE, and the seventh member should be added under the quota of international experts.

But soon, more surprises occurred.

Departing from the Commission's plenary decision, its president, Claire Bazy-Malaurie, wrote a letter to the head of the Verkhovna Rada, Ruslan Stefanchuk, in which she single-handedly decided that seven members are, of course, desirable, but a six-member model is also possible. 

And although this thesis is not the position of the Commission, Ukraine actually took it as the basis of draft law No. 9225.

It should not be assumed that the president of the VC accidentally slandered and the opponents of the reform used it. No, the authors of this article know that draft law No. 9225 was developed and coordinated by Kyiv with representatives of the Venice Commission and the European Commission. This is also indicated by the fact that the text of draft law No. 9225 appeared in public only last Thursday, and the VC's opinion on it was submitted for consideration literally three days after that.

Such speed of analysis and administrative procedures in the VC is impossible.

Therefore, the members of the VC should have at least been familiarised with the text in advance and, at most, be its de facto co-authors – in this case, it turns out that the Commission will "evaluate" itself.

It remains to add that the development of draft law No. 9225 was as closed from the public as possible, which in itself contradicts the recommendations of the VC regarding the reform of the CCU. It’s interesting whether the Commission will pay attention to this circumstance in its opinion.

Emotions against reforms

We do not know how the Venice Commission plans to justify its actions in the event that its opinions again differ significantly from the previous ones.

But we know that the position of the VC is not the only issue. No less problematic is the attitude of the European Union towards this matter, which identified the reform of the selection of the CCU judges as criterion No. 1 for Ukraine, but now is ready to turn a blind eye to it.

It is even more interesting that the EU, motivating the change of its position, says that their Ukrainian counterparts ... react "very emotionally" to any discussion about the seventh member.

In other words, it is not the interests of the candidate state, not the EU itself, and not even rational arguments that matter, but emotions.

Representatives of a state at war really have the right to claim that their emotions are one of the key arguments when it comes to armed support, the liberation of occupied territories, punishment of the aggressor for international crimes, etc. 

Still, the issue of reforms necessary for the country to join the privileged club of stable democracies is an entirely different matter.

Unfortunately, the EU does not understand: blurring this line means "permission" to manipulate emotions for political purposes. Those representatives of the Ukrainian authorities who oppose the implementation of reforms have already felt it and continue to use emotions in a rational discussion precisely because they work.

Noteworthy, the authors of this article and their organisations were among those who, a year ago, strongly advocated granting Ukraine the EU candidate status because they saw this process as a chance for Ukraine to make enormous progress on the path of necessary reforms. 

Back then, we could not imagine that Ukraine’s candidacy could become an instrument not only to imitate these reforms but to carry out the opposite under their guise – to push Ukraine's movement away from democracy.

Ukrainian NGOs in the field of reforms and European integration are publicly appealing to the European Commission and the Venice Commission not to push Ukraine towards excessive concentration of power. 

Text by 

Mykhailo Zhernakov, Stepan Berko, DEJURE Foundation

Halyna Chyzhyk, Anti-Corruption Action Centre

Kateryna Butko, Automaidan