Appointment of new judges of the CCU: legitimacy risks and ethical issues

  • 29.11.2021

On November 26 the President of Ukraine appointed two judges of the Constitutional Court of Ukraine (CCU) by his Decrees. In his interview the head of the state presented this as a victory (he literally said: “we have won”), while his representative in the CCU Olha Sovhyria on her personal FB-page wrote about appointment of two new judges “instead of О. Tupytskyi and           O. Kasminin”. These two judges had been “dismissed” by the Decrees of the President canceling the decrees on their appointment.

So the society needs to understand what exactly has happened, whose “victory” this, in fact, is: that of the state, the nation, personally the President, or any specific political power? And is this “victory” a victory at all, if seen through the prism of the state and social interest.

Thus, let us focus on most important issues.

1. Were there any judicial vacancies in the CCU?

Under the Constitution, 6 judges of the CCU are appointed by the President, the Verkhovna Rada, and the Congress of Judges each. The precondition for appointment of a new judge is termination of the predecessor’s authorities, which is availability of the respective vacancy. The Constitution clearly sets the grounds for termination of the authorities of the CCU judges, while the Law On the Constitutional Court of Ukraine determines the procedure for such termination. Neither the Constitution, not the Law envisage any presidential authorities to dismiss judges of the CCU or to terminate their authorities in any other way. This right belongs to the Constitutional Court itself, following the procedure established by the Law.

It is of interest that the authorities of the above two CCU judges were terminated through cancellation of the decrees on their appointment to the positions, which, by itself, is void from the legal point of view, since acts of individual nature become exhausted the moment they come into effect. It is clear that О. Tupytskyi and O. Kasminin appealed the President’s Decrees on their dismissal with the Supreme and Constitutional Court. While the proceedings in the CCU are pending, the decision of the Administrative Court of Cassation within the Supreme Court in the claim filed by O. Tupytskyi on July 14, this year, has acknowledged the Presidential Decree to be illegal and has cancelled it. Now the case is being considered by the Grand Chamber of the Supreme Court.

Thus, the vacantpositions to which two persons were “appointed” in the Constitutional Court were just not available.

2. The risks of acquisition of the authorities by the “appointed” judges

The CCU is a supra-important body in the conditions of constitutional democracy, designed to guarantee division of power, prevent excessive concentration of power in one of the higher state authorities, or their arbitrary activity. That is why constitutional courts often become an object of attacks attempted by political entities. Taking the constitutional court out of the game constitutes a mandatory precondition of power usurpation, while its delegitimization – a threat to the democratic system existence. Since not only does this body acknowledge acts of the Parliament, the head of state or the government unconstitutional, but also exercises control over the constitutionality of amendments to the Constitution, the issues that are put to vote at all-Ukrainian referendums, and, finally, – compliance with the constitutional procedure of impeachment of the President. Inclusion of illegally appointed judges to the CCU will lead to the loss of legitimacy of this body, hence, of all its decisions that will be passed thereafter. This is confirmed by the decision of the ECtHR concerning Poland, where it stated violation of Article 6 of the Convention on the ground that the Constitutional Tribunal included judges appointed not on a legitimate basis.

3. High moral qualities and a recognized level of judicial competence.

Due to specific authorities of the CCU, special requirements are set for its judges. These are the most rigid requirements, as compared to other positions, and they are verified following a specially established procedure. Besides age restrictions, requirements to the professional work record, etc., the Constitution also envisages that candidates for the position should have “high moral qualities and a recognized level of judicial competence”. The combination of these two requirements makes it impossible for the CCU judges to acquire their authorities in the current situation. Since “the recognized level of competence” presupposes understanding of the whole seriousness of the consequences arising in case judicial authorities are acquired by the candidate, while “high moral qualities” presuppose such behaviour of theirs that is compatible with the constitutional requirements and values, as well as ethical standards. Besides that, if the CCU itself takes this step, this will contribute to its delegitimization in the eyes of the society and international partners.

4. What should be done?

First of all, crisis should not be deepened. Vacancies within the presidential quota in the CCU will appear already next year (in spring and in autumn), and then there will be constitutional grounds for appointing judges to these positions. The answer to the question whether these will be the people in relation to whom the President issued his Decrees on November 26, or whether another competition will be held, should be seen through the lens of interpretation of the previous issue. However, it is important to understand that now the ball is on the field of the Constitutional Court and its acting President. If the Court holds a special plenary session and brings the “appointed” persons to oath – it will finally destroy itself as the institution and will thus be deprived of the already minor support from the professional environment.

Thus, what is to be done:

  • the Constitutional Court should not press the “self-destruction” button;
  • MPs should voice clear condemnation of the illegal Presidential Decrees;
  • civil society should express readiness to provide support to the Constitutional Court in its opposition with the head of state.