Special edition digest: competitive selection of judges of the Constitutional Court

Сompetitive selection of judges of the Constitutional Court 

Draft bill # 7662 of August 12, 2022 

Status: adopted as a law 

Who is affected: the Constitutional Court, the President, the Verkhovna Rada, the Cabinet, the Congress of Judges, and candidates for judges of the Constitutional Court. 

Summary of the bill: 

• Competitive selection procedure for candidates for judges of the Constitutional Court of Ukraine (CCU) 
  • the law introduces the following competitive selection procedure for the candidates: 
    • creates a selection committee responsible for organizing a competition for candidates that will be appointed under the presidential quota 
    • designates the dedicated committee of the Verkhovna Rada (responsible for issues related to the work of the CCU) as a body preparing the consideration of candidates in the Parliament 
    • designates the Council of Judges of Ukraine as a body organizing a competition for candidates that will be appointed under the quota of the Congress of Judges

• An advisory group evaluating the candidates 
  • the law creates the Advisory Group of experts responsible for the evaluation of the moral and professional qualities of the candidates allowed to participate in the competition. The group: 
    • analyzes documents provided by the candidates, conducts interviews with them, and evaluates their moral stature and competencies 
      • to meet a moral qualities standard, a candidate has to have integrity: there should be no doubts as to the legality of his or her sources of income or property, there should be no discrepancies between his or her / his or her family’s lifestyle and the declared income 
  • after the evaluation of the moral stature, a candidate receives one of the following ratings: 
    • “most suitable” — if a candidate received at least 5 votes in favor 
    • “suitable” — if a candidate received 4 votes in favor 
    • “unsuitable” — if the candidate received 3 or fewer votes in favor. Such candidates are excluded from the competition 
  • the Advisory Group makes its decision by a majority vote 
  • the Advisory Group sends the evaluation results to the Selection Committee under the President, to the dedicated committee of the Verkhovna Rada, or to the Congress of Judges.

• Consideration of the results provided by the Advisory Group 
  • the selection committee under the President, the dedicated committee of the Verkhovna Rada, and the Congress of Judges examine the documents and evaluations provided by the Advisory Group, interview the candidates, and send the results to the President, the Verkhovna Rada, or the Congress of Judges respectively (depends on which body’s quota is being fulfilled) 
  • the Congress of Judges and the Verkhovna Rada start their considerations with candidates deemed the “most suitable” by the Advisory Group. If none of these candidates are appointed, then they consider candidates evaluated as “suitable.” Only after that the candidates whose professional qualities were evaluated as “unsuitable” are considered. 
  • appeals against decisions, actions, or inactions regarding the selection procedure can be sent to the Supreme Court as the court of original jurisdiction and the Grand Chamber of the Supreme Court as the appeal court. 
• Creation of the Advisory Group 
  • the Advisory Group works pro bono and consists of six members appointed for three years. Members of the Advisory Group are appointed by the following bodies: 
    • the President 
    • the Verkhovna Rada 
    • the Congress of Judges 
    • the National Academy of Legal Sciences 
    • the congress of the representatives of legal higher education establishments and scientific establishments 
    • the conference of the representatives of civic associations that for the last five years are working on constitutional reform, rule of law, human rights, and corruption prevention 
  • during the six years after the law is adopted, the transitional composition of the Advisory Group will consist of: 
    • two persons appointed by the Cabinet on the recommendations of international and foreign organizations that for the last five years provided Ukraine with international technical assistance for constitutional reform, rule of law, human rights, and corruption prevention 
    • members appointed by:  
      • the President 
      • the Verkhovna Rada 
      • the Congress of Judges (during the first three years — by the Council of Judges instead of the Congress of Judges) 
      • the Cabinet on the recommendation of the European Commission for Democracy through Law. 

What is right: 

• the law is compliant with the constitutional requirement of the competitive selection of candidates for judges of the CCU. Also, the introduction of this procedure is a requirement for the preparations of the EU member state candidates. 

What is wrong: 

• the Advisory Group cannot have the authority to ban from the competition those candidates deemed “unsuitable” as a result of the evaluation of the moral qualities for the following reasons: 
  • a decision to exclude a candidate from the competition is an individual legal act. Since the Advisory Council is not a government body with legal authority, it has no power to issue any legally binding acts 
  • according to the text of the law, the Advisory Group is created not to make decisions about the moral or professional qualities of the candidates but to help the President, the Verkhovna Rada, and the Congress of Judges to evaluate the moral stature and competencies of the candidates by providing suggestions, evaluations, and recommendations. Thus, it cannot make decisions for the bodies responsible for the appointments 
• doubts about the integrity of a candidate cannot be the ground to ban him or her from participating in the competition since it violates the presumption of innocence. Such doubts can only be a factor in the evaluation and, hence, the person’s chances to be appointed 
• the separation of powers into legislative, executive, and judicial branches is defined in the Constitution and it does not allow the existence of bodies with legal powers outside of these branches. The Advisory Group is not a part of any of the three branches and thus under no circumstances can make any decisions on its own 
• provisions about appeals against decisions concerning the selection process of the candidates for judges of the CCU are by mistake inserted into the Law on The Constitutional Court of Ukraine.