The First Board of Judges of the First Senate of the Constitutional Court of Ukraine initiated constitutional proceedings in the case on the constitutional petition of the Supreme Court on verification of compliance with the Constitution of Ukraine of certain provisions of the Law of Ukraine “On making amendments to certain legal acts of Ukraine regarding the procedure of election (appointment) to the position of member of the High Council of Justice and the activity of disciplinary inspectors of the High Council of Justice” (No. 1635-IX) and amended by it norms of the Law of Ukraine “On the High Council of Justice”.
The case is currently being prepared for consideration at the plenary session of the Grand Chamber of the Court.
In this regard, the High Council of Justice by decision No. 53/0/15-22 approved the clarifications on this case.
The High Council emphasized that the judicial reform in Ukraine should result with sustainable functioning and development of the justice system, taking into account the best international standards and practices. At the same time, the changes necessary for this should provide for strict observance of the requirements of the Constitution of Ukraine, primarily regarding guarantees for the independence of judges and judicial administration.
An analysis of the provisions of Law No. 1635-IX and the legislative acts to which it has amended allows to assert the existence of certain norms, the essence, content and practical implementation of which, according to the High Council of Justice, do not comply with the Constitution of Ukraine, as well as decisions of the Constitutional Court of Ukraine, namely:
• on the establishment of the Ethics Council and its empowering;
• on the procedure for formation of the first composition of the Ethics Council, which provides for the mandatory participation of three persons determined by international and foreign organizations, as well as decisions-making procedure of the Ethics Council;
• on a one-time evaluation by the first composition of the Ethics Council of the current composition of the High Council of Justice, which may result in the removal of current members of the High Council of Justice from office.
According to the position of the High Council of Justice, introduced by the provisions of Law No. 1635-IX, the possibility of automatic removal of current members of the High Council of Justice from office by decision of the Ethics Council contradicts the principle of institutional continuity of the constitutional body and may lead to its complete suspension.
The High Council of Justice emphasized that the subjects of election (appointment) of members of the HCJ are a highly professional environment capable of qualifiedly assessing the compliance of each candidate with the requirements of the law, the criteria of integrity and professional ethics. In addition, the election (appointment) to the position of a member of the HCJ is preceded by a thorough special verification of their compliance with the requirements of the law.
Given the Council of Europe standards, the new parliamentary majority and government should not question the appointment or term of office of judges and members of judicial councils who are already duly appointed. Judges and members of judicial councils who have just passed the public appointment (election) procedure should not be subjected to re-selection and evaluation (verification procedure).
The Consultative Council of European Judges, in paragraph 36 of its Opinion of 05 November 2021 No. 24 (20201) “The evolution of judicial councils and their role in the independence and impartiality of the judiciary”, emphasizes that members of the judicial council should be elected to positions for a certain period of time and be protected from internal and external pressure. The term of office of a member of judicial council should only expire after the legal election of a successor, to ensure that council performs its duties legally.
In its decision, the HCJ noted that the provisions of Law No. 1635-IX on the participation of persons designated by international and foreign organizations in the election (appointment) of members of the High Council of Justice violate fundamental constitutional principles of statehood, since foreign citizens delegated by international organizations to the Ethics Council are not representatives of the people of Ukraine, do not belong to the people of Ukraine, and therefore are not bearers of state power in Ukraine. Not a single international organization is endowed, in accordance with its charter, with the authority to form constitutional bodies.
In addition, the HCJ stressed that Law No. 1635-IX defines such a decision-making procedure for the first composition of the Ethics Council, according to which the will of representatives of international and foreign organizations prevails over the will of members of the Ethics Council from among the judges appointed by the Council of Judges of Ukraine, which is unconstitutional and contradictory the provision of Article 8 of the Constitution of Ukraine narrows the rights of a person provided for in Articles 22 and 64 of the Constitution of Ukraine.
The HCJ also drew attention of the Constitutional Court of Ukraine to the expediency of involving in consideration of the case representatives of the relevant subjects of election of members of the High Council of Justice, in particular the National Bar Association of Ukraine, the Council of Prosecutors of Ukraine, since the decision of the Constitutional Court of Ukraine in this case may affect their rights and obligations.
On the side it is noteworthy that the High Council of Justice has constantly and consistently adhered to the legal position regarding the inadmissibility of legislative initiatives that, by their content, threaten the constitutional guarantees of the independence of judges.
The consistent position of the HCJ regarding the formation of the Ethics Council and its powers is expressed in numerous advisory opinions of the Council to a number of draft laws – No. 1008, No. 2536, No. 2712, No. 3534, No. 3711-1, No. 3711-2, No. 4135, No. 5068, No. 5836, to the draft laws sent by the Ministry of Justice, in decision of the HCJ On approval of the position on the constitutional petition of the Supreme Court on the constitutionality of the provisions of Law No. 193-IX, etc.