Draft bill #9322 of May 25, 2023 

Status: included in the parliamentary agenda 

Who is affected: candidates for the position of judge of the Constitutional Court, the President, the Verkhovna Rada, the Council of Judges, the Congress of Judges, members of the Committee on Legal Policy, members of the Advisory Expert Group, and the Venice Commission. 

Summary of the bill: 

  • regulations on the work of the Advisory Expert Group will be amended: 
  • the Group will be allowed to turn down candidates who do not meet the criterion of proficiency in law 
  • the candidates who have proved their qualification level and integrity will be included by the Group in a list of acceptable candidates. After such a list is concluded, the Group votes on the candidates to rank them and issues a final list of candidates sorted by rank 
  • members of the Advisory Group will get deputies. The President, Parliament, and the Congress of Judges, while appointing members to the Advisory Expert Group, will also appoint a deputy for each of them. Deputies will have the right to be present as observers at meetings of the Group. If a member of the Group recused or has been subject to early termination, their deputy, with their consent, exercises their powers 
  • the procedure of selecting judges of the Constitutional Court by the President, Parliament, and the Congress of Judges will be amended: 
    • the deadline for submitting documents will be extended to 30 days (instead of 10 days) 
    • the Parliamentary Committee on Legal Policy will be allowed to contact candidates with proposals to provide explanations on the submitted documents, as well as to invite them to the Committee’s meetings 
    • if a candidate has not submitted all necessary documents or some errors were found in the documents, they will be given additional time to correct the defects. The candidate can be turned down if he or she fails to update the data 
    • the Congress of Judges and Parliament will first consider those candidates who have received at least 6 votes in favor from the Advisory Expert Group. If none of the candidates received that many votes, candidates are considered in the order of descending number of votes until the list of evaluated candidates is exhausted 
  • during the transitional selection period (six years from the moment the law on the reform of the selection procedure of the Constitutional Court came into effect — until December 23, 2028), the Advisory Expert Group makes decisions by at least four votes of its members, of which at least two are nominated by the Venice Commission. The votes of these members will be decisive in decision-making 
  • from the day the law is adopted, all competitions for the position of a judge of the Constitutional Court that has not been completed will be terminated. The President, Parliament, and the Congress of Judges will announce competitions for all vacant positions 
  • the Supreme Court will be the court of original jurisdiction for cases concerning appeals against decisions, actions, or inaction regarding the selection procedure for the Constitutional Court. 

Why this is important: in December of the previous year, Parliament passed amendments to the selection procedure for the Constitutional Court. The Venice Commission and the European Commission urged to correct the shortcomings of the law as soon as possible. 

What is right: the extension of the deadline for submitting documents to participate in the competition is a good idea. Many candidates do not have enough time to submit documents, considering the war and the difficulties of submitting documents directly to the apparatus of the Verkhovna Rada. 

What is wrong: 

  • the Advisory Group cannot have the authority to turn down candidates, and here is why: 
    • the decision to turn down a candidate is a legally binding decision. The Advisory Group is not an authority, so it cannot issue any legally binding acts 
    • the Advisory Group was created not to make decisions about whether to admit candidates to the competition or turn them down but to assist the President, the Verkhovna Rada, and the Congress of Judges in assessing the integrity and qualifications of candidates through advice, assessments, and recommendations. Therefore, it cannot make decisions instead of the proper authority 
  • the Advisory Group does not belong to any branch of power and therefore cannot have independent powers. The constitutional principle of separation of powers into legislative, executive, and judicial does not allow the existence of authorities outside of these branches. 

Alternative solution: the procedure of competitive selection of judges of the Constitutional Court should be fundamentally revised and brought back in line with the Constitution: 

  • the role of the Advisory Expert Group should be changed. In particular, the Group should be deprived of improper powers: its conclusions have to be just recommendations for bodies responsible for appointing the judges of the Constitutional Court 
  • selection committees responsible for the selection of judicial candidates should be created as full-fledged advisory bodies.