Strasbourg, 22.03.2021 – In its opinion adopted at the plenary session on 20 March 2021, the Venice Commission analyses the new Draft Law on constitutional procedure and the alternative draft law on the procedure for consideration of cases and execution of judgments of the Constitutional Court, which were introduced by Ukrainian legislators as a reaction to the recommendations by the Venice Commission issued in December 2020.
The Venice Commission welcomes that President Zelenskyy withdrew draft law No. 4288 that would have terminated the powers of all judges of the Constitutional Court.
The Draft law on Constitutional Procedure takes up recommendations made by the Venice Commission in its Urgent Opinion on the Reform of the Constitutional Court and brings about many improvements. The main novelties have been introduced in the field of constitutional complaints, publicity and openness of constitutional proceedings, formation of senates and boards and distribution of cases, access to case materials, disciplinary responsibility of judges and the internal functioning of the Constitutional Court.
The draft law introduces the Automated Document Management System, which provides public access to case files and is used to compose senates, boards and appoint judge rapporteurs. Judges can overcome a possible blockage by a judge-rapporteur or the Chair in establishing the Court agenda.
The draft law would also improve the applicants’ access to the Court through various means (electronic complaints and communication, time period for elimination of shortcomings in the complaint, interim measures, reimbursement of expenses, compensation for undue delays). It is positive that the quorum is lowered when one or two judges have (self-)recused.
The draft law implements recommendations of the Venice Commission on the confirmation of the annulment of legal provisions by the Grand Chamber and a limitation of the scope of the appeal/complaint. The draft law on Constitutional Procedure also addresses the need to provide sufficient and coherent reasoning for the decisions of the Court.
However, the draft law also has some shortcomings. Most importantly, it does not contain provisions on a new system of competitive selection of judges involving an international component as recommended in the Urgent Opinion. While this appointment system does not need to be included in Draft Law, the amendment to Article 11 of the Law on the Constitutional Court should be removed and current vacancies at the Constitutional Court should be filled only after an improvement of the system of appointments.
The main recommendations by the Venice Commission for changes in the Draft Law are the following:
For procedural economy, constitutional complaint proceedings in which a senate finds a legal provision unconstitutional should be transferred to the Grand Chamber only if the President or the Parliament request such a transfer.
As concerns disciplinary proceedings, instead of the executive power (i.e. the President) the initiative to start disciplinary proceedings should be given to the National Agency on Corruption Prevention. “Giving anticorruption bodies some supervisory powers over judges is consistent with the general principles of constitutionalism and the rule of law,” the Venice Commission says.
A lack of any form of graduated sanctions in the Draft Law is problematic. In order to operationalise the disciplinary system, for disciplinary offences below the threshold of “serious disciplinary offence”, other sanctions should be introduced, such as warnings, reprimands, reduction of salary, etc. and these sanctions should be applied by a simple majority of the judges.
The Court should be able to review its own decision if one of its judges voting in favour of that decision has been condemned in final instance for taking a bribe in connection with the adoption of that decision.
As for voting requirements, the Venice Commission says that in the vast majority of European legal systems only a simple majority is required. In Ukraine, the specific situation following Decision 13-r/2020 (by which the Constitutional Court had invalidated large parts of the anti-corruption legislation in force) can justify raising temporarily the voting requirement in the Grand Chamber. Any increase in the number of votes required should however be a percentage of the number of judges actually appointed rather than a fixed number out of all 18 judges. Such an increase can be justified only until a certain percentage of judges have been appointed according to the new system of competitive selection.
Finally, the Constitutional Court should be given an occasion to express its view on the revised Draft Law.
