At its 134th plenary session on March 10-11, the Venice Commission adopted a conclusion on certain questions related to the procedure for appointing and dismissing the director of the National Anti-Corruption Bureau of Ukraine (NABU) and the director of the State Bureau of Investigation (SBI).

As the press service of the Council of Europe reports, the Constitutional Court of Ukraine (CCU) at the request of the Verkhovna Rada is currently preparing an opinion on draft law on introducing amendments the Constitution of Ukraine regarding the procedure for appointing and dismissing the director of the National Anti-Corruption Bureau of Ukraine and the director of the State Bureau of Investigation.

On December 12, 2022, the acting President of the Constitutional Court of Ukraine requested an amicus curiae brief from the Venice Commission on this matter.

The five questions posed by the CCU to the Venice Commission can be divided into two groups. Three questions are related to the compatibility of the project of constitutional amends with certain principles enshrined in the Constitution, namely the principle of separation of powers, checks and balances, democracy and respect for the rule of law. THE CCU also asks whether these amendments could negatively affect the protection of human rights and freedoms.

The second group of questions concerns the procedure for introducing amendments to the Constitution, namely the (im)possibility for the Parliament and the Constitutional Court to continue considering and approving these amendments during the martial law regime declared in Ukraine in connection with Russian aggression.

Regarding the first block of questions, the Venice Commission believes that the proposed amendments meet the minimum requirements of parliamentary influence and control over the executive power and do not go beyond the spheres reserved for legislative, executive or presidential powers.

"From the rule of law perspective, the draft constitutional amendments appear to be formulated in an intelligible manner, and it is understood that the constitutional amendments, if adopted, will be developed further in the implementing legislation on the two institutions concerned. In such an implementing legislation the Verkhovna Rada may consider further ways of improving the process of appointment of both Directors on a competitive basis, in order to ensure merit-based and fair process of appointment and guarantee that it is compatible with the constitutional human rights provisions related to the right to participate in the administration of public affairs, non-discrimination, equality, and due process," the conclusion reads.

As noted, the final decision whether the proposed amendments create a conflict with the human rights provisions of the Constitution remains with the Constitutional Court.

As for the second group of questions, the Venice Commission has a slight preference for the second line of reasoning but reiterates that it belongs to the CCU to give a final answer to this question, in the light of the constitutional tradition of the country. The Commission further observes that the CCU opinion issued in accordance with the Constitution is binding but imposes no further obligation to proceed with amending the Constitution.

Previously, the Deputy Prime Minister for European integration Olha Stefanishyna stated that the first evaluation of the European Commission regarding the progress of Ukraine in fulfilling the "candidate criteria" would be available in May. Kyiv will complete the implementation of most of them by that time.