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Constitutional Court reform: Will Ukraine implement key condition for EU membership?

by Oleg Sukhov August 28, 2023 11:31 PM 10 min read
CCU judges attend the swearing-in ceremony of Judge Oleksandr Petryshyn at a special plenary session of the CCU in, Kyiv, Ukraine, in September 2022. (Kaniuka Ruslan/Ukrinform/Future Publishing via Getty Images)
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After being mired in corruption and political scandals for decades, Ukraine’s critically important Constitutional Court is now facing an attempt at reform, although its success is far from guaranteed.

The issue took center stage when the reform of the Constitutional Court became one of the European Union’s key conditions for Ukraine’s membership after the country became a candidate for the bloc in June 2022.

Under pressure from civic activists and the West, the Ukrainian authorities finally adopted a law on Constitutional Court reform on Aug. 17. According to the law, international experts will take part in the selection of new Constitutional Court judges to make sure that they are independent and comply with integrity standards.

However, doubts persist as Ukraine has a poor record of reforming the judiciary. In the past, even the participation of foreign experts did not prevent similar committees from selecting tainted candidates and rejecting the ones with clean reputation.

“There are risks that the process will be politicized,” Mykhailo Zhernakov, head of judicial watchdog Dejure, told the Kyiv Independent. “(This law) doesn’t guarantee results.”

President Volodymyr Zelensky’s spokesman Serhiy Nikiforov and Denys Maslov, head of the Ukrainian parliament’s legal policy committee, did not respond to requests for comment for this story.

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Discredited court

Ukraine’s Constitutional Court has a long history of controversy.

Former judges of the court have been under criminal investigation over several decisions that enabled Viktor Yanukovych, a pro-Kremlin former president, to usurp political power in 2010.

According to records in Yanukovych’s Party of Regions’ alleged off-the-book ledger, discovered in 2016, judges from the Constitutional Court received $6 million from the party for making rulings that helped Yanukovych usurp power.

Oleksandr Tupytsky, a Yanukovych appointee who chaired the Constitutional Court in 2019-2022, has been involved in several corruption scandals and has been charged in several criminal cases. He fled Ukraine after Russia launched its full-scale invasion in February 2022 and is currently wanted by Ukrainian law enforcement. As of September 2022, he resided in Vienna.

The Constitutional Court has also issued numerous controversial rulings that undermined key reforms.

Specifically, the court helped corrupt officials by canceling the law criminalizing illicit enrichment in 2019. It had a retroactive effect, killing years worth of anti-corruption prosecutions.

In 2020, the court partially canceled judicial reform legislation, entrenched judicial impunity by canceling the law criminalizing unlawful court rulings and ruled that parts of the law on the National Anti-Corruption Bureau of Ukraine were unconstitutional.

The Constitutional Court has also faced mounting criticism since it destroyed Ukraine’s entire asset declaration system for state officials in 2020, eliminating a crucial pillar of the country’s anti-corruption infrastructure. The asset declaration system was later reinstated by the legislative and executive branches.

Currently, there are 13 incumbent judges of the Constitutional Court. Six of them were appointed under Zelensky without any transparent contest procedures, and judicial experts say they are controlled by the incumbent government. They make this conclusion based on the judges’ rulings and the fact that they were effectively appointed by the Zelensky administration through loyal selection panels. One of them is a former member of parliament from Zelensky’s Servant of the People party.

Currently, there are five vacancies at the Constitutional Court that must be filled by judges selected with the participation of foreign experts.

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Foreign experts’ role

Now the fate of the court is in limbo.

There are different opinions on whether the participation of international experts can guarantee a successful reform of the Constitutional Court.

Zhernakov, head of Dejure, admits that there have been cases when international experts made mistakes and appeared to have succumbed to pressure from Ukraine’s judicial establishment.

He believes, however, there is a hope that foreign experts may ensure a genuine reform of the Constitutional Court.

But Vitaly Tytych, a lawyer and former head of judicial watchdog Public Integrity Council, argued that, based on the past record, the participation of foreign experts would not lead to any meaningful reform.

During several judicial reform attempts in the past, international experts failed to ensure genuine reform and were manipulated by representatives of the Ukrainian government, according to Tytych.

“(Foreign experts) don’t care about people who talk about the problems of the judiciary,” he told the Kyiv Independent.

Tytych also argued that the authorities were likely to make sure that weak foreign experts are selected, and they will be more likely to succumb to pressure and make concessions to corrupt actors.

He said that some foreign experts had always tended to find compromises with the Ukrainian authorities, even during Yanukovych’s corrupt rule.

In 2022, there was a controversy when a selection panel that included international experts vetoed whistleblower judge Larysa Golnyk as a candidate for the High Council of Justice, the judiciary’s highest governing body, and approved several controversial and tainted candidates for council jobs. The panel also banned broadcasts of its interviews with candidates, citing alleged security risks due to the ongoing Russian invasion.

Ukraine’s leading anti-corruption watchdogs issued a statement, saying that the panel had undermined trust in the process by taking these steps, and that the decisions may lead to “catastrophic results” for judicial reform.

There was a similar controversy in March, when a separate selection panel including foreign experts chose candidates for the High Qualification Commission, another judicial governing body.

Many independent and reformist candidates for the commission were rejected, while at least several tainted candidates managed to get top judicial jobs. Moreover, no representatives of civil society – the most radical agents of reform – were included in the final list.

The Ukrainian members used the fact that the international experts didn’t know the Ukrainian context and manipulated facts in order to reject good candidates and promote bad ones, judicial expert Halia Chyzhyk told the Kyiv Independent.

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Sabotage of Constitutional Court reform

The adoption of the current law on the Constitutional Court was preceded by what critics say was long-running sabotage of the court’s restructuring.

Ukrainian judicial experts and activists and Western partners have called for a reform of the court ever since it eliminated the asset declaration system in 2020.

However, initially the Ukrainian authorities dragged their feet on the reform.

Eventually in December 2022 Zelensky signed into law a bill on the selection of Constitutional Court judges.

The legislation was lambasted by civil society and Ukraine’s Western partners because it did not envisage a crucial role for international experts.

The law stipulated setting up the Advisory Group of Experts, which would assess the integrity of candidates for Constitutional Court jobs.

According to the legislation, the advisory group would comprise three representatives of the Ukrainian government and three experts nominated by international organizations. The Advisory Group of Experts would be able to make a decision only if at least four members voted for it.

After being vetted by the Advisory Group of Experts, Constitutional Court candidates would be appointed or rejected by the president, parliament and the Congress of Judges.

Dejure argued that the law would have allowed pro-government members of the advisory group to block any independent candidates and promote shady ones.

Since the European Union did not accept the law, the Ukrainian authorities had to pass a different one.

On Aug. 17, Zelensky signed into law a bill that envisages a casting vote for international experts.

According to the law, if the votes are split evenly (three to three), a second vote must take place, and the votes of the international experts prevail.

Although the new law appears to be better than the December one, there are problems with this structure as well.

Zhernakov said that in the past, foreign experts usually didn’t want to go into conflict with Ukrainian experts and were reluctant to use their casting vote.

“Their decisions would be something in the middle between the Western notions of integrity and Ukrainian practices,” he said.

Ukraine’s Western partners and civil society have pushed for a different scheme – one that would envisage three representatives of the Ukrainian government and four experts nominated by international organizations. Zhernakov believes that this scheme would make it easier for international experts to veto tainted candidates and promote good ones.

However, the Ukrainian authorities eventually rejected this scheme.

Meanwhile, Tytych believes that, regardless of whether the six-member scheme or seven-member scheme is used, there will be no genuine reform since international experts have turned out to be a failure.

“Why does it matter?” he told the Kyiv Independent. “If the foreign experts are under the pressure of psychological factors in the six-member scheme, why would they behave differently if the seven-member scheme is used?”

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Venice Commission’s role

The Venice Commission, an advisory body of the Council of Europe, has played a crucial role in the Constitutional Court reform.

However, the commission has been criticized by Dejure since it issued contradictory opinions and sometimes appeared to soften its stance on the reform.

In November the Venice Commission concluded that the advisory group’s decisions should not be binding, arguing that the group “should not choose the candidates it prefers” and that “the responsibility for the choice of the future judge rests with the appointing body.” The commission also said that a seventh member should be added to the advisory group but did not emphasize the recommendation and did not include it in the conclusion.

Following criticism by Ukrainian NGOs, the Venice Commission issued another opinion in December. In that opinion, the commission emphasized that a seventh member should be added to the panel. The commission also argued explicitly that the advisory group’s decisions should be mandatory, saying that “candidates who are judged by the (Advisory Group of Experts) to be “not suitable” are to be excluded from further consideration and must not be chosen by the appointing bodies.

In June the Venice Commission said that it “regrets that its recommendation to add a seventh member to the (Advisory Group of Experts) has not been followed.”

However, the commission said it welcomed improvements in the bill, including the casting vote for international members. The commission argued that “despite the war of aggression of the Russian Federation against Ukraine, the Ukrainian authorities, as well as civil society, have shown an exemplary willingness to move forward with the reforms.”

The commission had also been accused in the past of failing to understand the Ukrainian context and playing into the hands of corrupt actors in Ukraine.

The way its members were selected has also been a subject of controversy. Serhiy Kivalov, a discredited pro-Russian ally of ex-President Yanukovych, was a member of the Venice Commission in 2013-2014.

Zhernakov argues that the European Union and the Venice Commission have made concessions to the Ukrainian authorities, which may jeopardize the reform.

He said that the Venice Commission and the European Union first called for a seven-member advisory panel but then gave it up and agreed to the six-member scheme preferred by the Ukrainian government.

The European Commission did not respond to a request for comment.

“The Venice Commission already explained in the opinion that a seven-member composition is preferred, but the six-member composition could be acceptable provided that certain conditions were met,” Panos Kakaviatos, a spokesman for the Venice Commission, told the Kyiv Independent. “They don't have anything to add beyond that explanation, as indicated in the opinion.”

But Zhernakov, who has been advocating for judicial reform in Ukraine, says he doesn’t believe it.

“It’s a political decision by the European Union,” he said. “We don’t believe it’s right.”

Hello! My name is Oleg Sukhov, the guy who wrote this piece for you.

I was born in Russia and moved to Ukraine in 2014 because I couldn't stand the suffocating atmosphere of that semi-totalitarian country. I used to think it might be possible to transform Russia into a liberal Western-oriented country. Now it's clear that it's a lost cause. But at least I can atone for the crimes of my homeland by exposing its barbaric aggression against Ukraine and providing objective and independent coverage of what is going on there. I'm also trying to contribute to Ukraine's transformation into a full-fledged Western liberal democracy strong enough to defeat Russia.

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Oleg Sukhov: Ukrainian kleptocrats use war to entrench corruption, with Western experts as facade
Editor’s Note: The opinions expressed in the op-ed section are those of the authors. Oleg Sukhov is a staff writer at the Kyiv Independent. He has been covering the judicial corruption and judicial reforms in Ukraine since 2014. Russia’s full-scale invasion of Ukraine was a wake-up call for

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