Amendments to competitive selection procedure for candidates for judges of the Constitutional Court

Draft bill #9225 of April 19, 2023 

Cosponsors: a group of 8 MPs from the Servant of the People faction with Denys Maslov as the first signatory 

Status: submitted to the Verkhovna Rada 

Who is affected: the President, the Verkhovna Rada, the Congress of Judges, candidates for judges of the CCU, and the Advisory expert group (for selecting judges of the CCU) 

Summary of the bill: 

• disputes concerning the selection and appointment of judges of the CCU will be considered by the Supreme Court 
• candidates for CCU judges will be required to submit their documents in paper and personally or by mail 
  • documents submitted after the deadline will not be accepted 
  • it will be allowed to grant candidates additional time (up to 10 days) to correct errors in submitted documents or provide documents for participation in the competition if some of the documents were not submitted 
• the President, the Parliament, and the Congress of Judges will be allowed to initiate special background check of CCU candidates under martial law 
• the Advisory expert group will evaluate candidates using a different grading system: instead of “the most suitable”, “suitable”, and “unsuitable” grades, the bill proposes to leave only “suitable” and “unsuitable” options 
• candidates for CCU judges deemed “unsuitable” by the Advisory group will not be allowed to participate in the competition 
• it will be allowed to appoint a deputy for each member of the Advisory group. In case of early termination of powers, recusation, or self-recusation of the Advisory group member, their deputy will act in their stand. 

What is right:  there will be less red tape for candidates aspiring to become judges of the CCU. 

What is wrong: 

• the Advisory expert group, like any advisory body, cannot have independent powers. It is unconstitutional to grant the Advisory group the authority to prevent any candidate from participating in a competition for the position in the CCU 
  • the Advisory group will effectively exercise the powers of the President, the Verkhovna Rada, and the Congress of Judges concerning the selection of candidates for judges of the CCU. This is a direct violation of the Constitution 
  • to give a decisive vote to representatives of foreign and international organizations in the process of selecting judges of the CCU is to violate the state sovereignty of Ukraine 
• the President and the Verkhovna Rada are supposed to exercise their powers in appointing competent judges of the CCU and taking responsibility for the quality of their work. The bill relieves them of that responsibility 
• by appointing judges of the CCU under an unconstitutional procedure and in violation of the state sovereignty of Ukraine, the Verkhovna Rada risks critically undermining the legitimacy of the Constitutional Court 
• if disputes concerning the selection and appointment of judges of the CCU will be settled by the Supreme Court as a court of original jurisdiction, it will increase the workload of the Supreme Court. This may result in problems with access to justice and the inability of the Supreme Court to perform its primary duties. 

Alternative solution: 

• to bring the procedure for the competitive selection of candidates for positions of judges of the CCU in line with the Constitution: 
• to amend the procedure for the competitive selection of candidates for CCU judges making it compliant with the Constitution: 
  • deprive the Advisory group of any independent powers by limiting its mandate to providing recommendations and conclusions on the moral and professional qualities of candidates 
  • create selection committees — advisory bodies with exclusively advisory powers — for the selection of judicial candidates 

• to designate administrative courts as courts of original jurisdiction for settling disputes concerning the selection and appointment of judges of the CCU.