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Constitutional Court contest not ideal but praised as fair and transparent

by Oleg Sukhov June 7, 2024 7:34 PM 10 min read
Members of the Constitutional Court of Ukraine attend the swearing-in ceremony of newly appointed Judge Oleksandr Petryshyn held on Sept. 21, 2022. (Kaniuka Ruslan / Ukrinform/Future Publishing via Getty Images)
by Oleg Sukhov June 7, 2024 7:34 PM 10 min read
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Ukraine faces yet another test in its efforts to meet conditions for joining the European Union – the creation of a credible and trustworthy Constitutional Court.

The ongoing selection of new Constitutional Court judges under new rules is in its final stages – the judges have already been chosen and need to be formally appointed.

The process has been praised by anti-corruption activists and judicial experts as a more transparent and fair one compared to those held prior.

"Compared with previous contests, it's a big step forward," Mykhailo Zhernakov, head of judicial watchdog Dejure, told the Kyiv Independent.

Yet flaws remain.

Some controversies arose around some of the five nominees chosen by the Advisory Group of Experts, although they were not as serious as in previous contests.

It has yet to be seen whether they will act in an independent, honest and professional way.

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A discredited court

Ukraine's Constitutional Court has been among the most tainted institutions in the country, with a long history of corruption and controversial rulings.

Its judges have been investigated in criminal cases and have regularly issued rulings that undermined anti-corruption reforms.

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.

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.

Oleksandr Tupytsky, chaired the Constitutional Court from 2019 until 2022 and has been involved in several corruption scandals and charged in several criminal cases. (Constitutional Court of Ukraine)

In 2019 the Constitutional Court also helped corrupt officials by canceling the law criminalizing illicit enrichment.

Under pressure from civic activists and foreign institutions, the Ukrainian authorities finally adopted a law on Constitutional Court reform in August 2023.

According to the law, international experts took part in the selection of new Constitutional Court judges to make sure that they are independent and comply with integrity standards.

According to the legislation, the Advisory Group of Experts comprises three representatives of the Ukrainian government and three experts nominated by international organizations. Each of the experts also has a deputy.

The law envisages a casting vote for international experts. If the votes are split evenly (three to three), a second vote must take place, and the votes of the international experts prevail.

The Ukrainian members of the advisory group and their deputies were seen as controversial.

One of them, Yaroslav Romanyuk, was the head of the Supreme Court under Yanukovych and supported Yanukovych’s crackdown on EuroMaidan protesters in 2014. Romaniuk has also issued an arbitrary ruling that constitutes “denial of justice,” according to a 2015 decision by the European Court of Human Rights.

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Another judge delegated to the advisory group is Volodymyr Kuzmenko, who is implicated in the high-profile corruption case against judge Pavlo Vovk. In tapes published by investigators, Vovk called him “our guy.”

Two other Ukrainian experts, Natalia Kuznetsova and Vasyl Shakun, are members of an NGO created by controversial allies of Yanukovych – Serhiy Kivalov and Andriy Portnov.

The members of the advisory group did not respond to requests for comment.

In May, the Advisory Group of Experts selected five candidates who they think meet integrity and ethics standards.

One of them, Serhiy Riznik, has already been appointed by the Ukrainian parliament as a Constitutional Court judge. The remaining four candidates have yet to be appointed by parliament and the Council of Judges.

Under Ukrainian law, there must be 18 Constitutional Court judges but currently there are only 13.

Better than other contests

Despite that, judicial experts say that the contest for Constitutional Court jobs was more fair and transparent than previous attempts.

Kateryna Butko, head of anti-corruption watchdog AutoMaidan, said that the contest was transparent, and there are no serious issues with the ethics and integrity standards of the nominees chosen by the advisory group.

Previous contests for Constitutional Court jobs did not involve international experts and sparked controversies.

One of the most controversial contests led to the appointment of Olha Sovhyria, a lawmaker from President Volodymyr Zelensky's Servant of the People party, in 2022. The appointment was lambasted by civil society because it violated the political neutrality clause, while the selection process wasn’t transparent.

Constitutional Court judge Olha Sovhyria attends a plenary session on Sept. 21, 2022. (Kaniuka Ruslan / Ukrinform/Future Publishing via Getty Images)

In contrast, during the ongoing contest representatives of the ruling party were unsuccessful.

The advisory group rejected the candidacy of Pavlo Pavlish, a Servant of the People lawmaker, while another pro-government MP, Oleksandr Kopylenko, withdrew his candidacy himself. Two members of the Central Election Commission representing the ruling party – Oleksandr Karmaza and Pavlo Lyubchenko – also failed to secure nomination.

Zhernakov said that the ongoing Constitutional Court selection process is also better than the 2022 contest for the High Council of Justice, the judiciary's main governing body.

During that contest, a selection panel including foreign experts was lambasted for vetoing whistleblower judge Larysa Golnyk and approving 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.

Although the ongoing contest for the Constitutional Court is seen as more transparent, some of the nominees may still turn out to be "dark horses" and politically dependent candidates, Zhernakov and Butko said.

"Nobody can guarantee that they will be perfect," Zhernakov said. "It will be clearer when we see these people's decisions (as members of the Constitutional Court)."

Meanwhile, Vitaly Tytych, ex-head of the Public Integrity Council, believes that the best, most professional and independent candidates were not selected in this contest.

He believes that this selection process, like in most other contests for government jobs, was aimed at randomly choosing people not involved in major controversies, rather than selecting the best candidates possible.

One of the reasons is that the best candidates did not apply for Constitutional Court jobs because trust in the selection process had been undermined by previous failed attempts, Tytych said.

Constitutional Court of Ukraine in Kyiv, Ukraine, on 28 May 2024. (Constitutional Court of Ukraine)

Zhernakov and Butko also admitted that there were few candidates of high quality to choose from.

Zhernakov said that the advisory group "took into account the disastrous situation with human resources."

"There is no trust in selection processes (for state jobs)," Butko said. "It's a big problem that (a number of) people with integrity don't apply."

Judges’ integrity

One of the candidates chosen by the advisory group is Alla Oliynyk, a judge at the Supreme Court.

"Out of all candidates, there are the most questions about Oliynyk's (integrity)," Butko said.

Specifically, Oliynyk worked simultaneously with her nephew at one university and two courts, triggering accusations of nepotism. She denied the accusations of wrongdoing.

Hanna Suchocka, a foreign member of the advisory group, said at a meeting of the group that Oliynyk had failed to convince her that this was just a coincidence.

The European Court of Human Rights has also ruled that Oliynyk violated international legal standards in three cases.

Oliynyk was also a member of the High Council of Justice from 2014 until 2017.

Screengrab from Alla Oliynyk's interview for the position of a Constitutional Court judge on March 4, 2024. (YouTube)

She was not involved in any major controversies, according to Roman Maselko, a member of the High Council of Justice, who represented the civil society, whistleblower judge Larysa Golnyk, and judicial expert Halia Chyzhyk.

However, Oliynyk did not act as an independent reformer either, Golnyk said. "She was a typical member of the High Council of Justice,” Golnyk added.

The advisory group said in a response to the Kyiv Independent that "reasonable doubts" about Oliynyk had not been confirmed. However, the group did not provide any details.

Other candidates

The advisory panel also approved the candidacy of Oleksandr Vodyannikov, a coordinator of the Organization for Security and Cooperation in Europe’s projects in Ukraine.

During the selection of a new Supreme Court in 2017 and 2018, Vodyannikov sided with the High Qualification Commission, a judicial governing body, and lashed out at the Public Integrity Council, the judiciary’s civil society watchdog. He denied the accusations of wrongdoing.

The Public Integrity Council vetoed many candidates for Supreme Court jobs who did not comply with ethics and integrity standards, according to the council. However, the High Qualification Commission overruled the vetoes, and many tainted judges got into the Supreme Court.

Vodyannikov said in an article that “a lot of candidates did not deserve (the Public Integrity Council’s) conclusions.” He also claimed that such candidates would be the “most honest” judges.

He also said the Public Integrity Council had “no right to assess candidates’ specific court rulings but only a candidate’s judicial work as a whole.” He added that the council has conflicts of interest and must consider “making its ranks more ethical.”

Eventually the judicial reform carried out by the High Qualification Commission was recognized by civil society, Western partners and the Ukrainian authorities as a failure.

Zelensky had to re-launch the reform in 2019 and dissolved the High Qualification Commission due to its failure to carry out the reform.

Another nominee approved by the advisory group, Oleksandra Yanovska, is a judge at the Supreme Court, as well as a law professor at Kyiv National University. In 2015, she was also an ad hoc judge of the European Court of Human Rights.

Screengrab from Oleksandra Yanovska's interview for the position of a Constitutional Court judge on March 4, 2024. (YouTube)

During her interview at the advisory panel, some controversies arose. She denied the accusations of wrongdoing.

Specifically, she claimed she did not remember whether she declared her cooperation with USAID in the early 2000s and whether she received income for it.

Yanovska also failed to give some information on her taxes and the value of her car and to include some of her traffic and parking violations in her integrity declaration. She denied wrongdoing.

Two other candidates approved by the advisory group have a good reputation as legal scholars.

These are Yury Barabash, a legal scholar at the National Academy of Legal Sciences, and Serhiy Riznyk, vice president of the Lviv National University and a constitutional law professor.

Zhernakov and Yulia Kyrychenko, a constitutional law expert at the Center of Policy and Legal Reform, praised them, saying that they are well-known professionals.

Kyrychenko herself was the only prominent candidate representing civil society during the Constitutional Court contest.

The advisory group's decision to veto her candidacy sparked a controversy.

In previous contests for top judicial jobs, selection panels were often accused of bias against civic and anti-corruption activists and often vetoed them.

Kyrychenko was vetoed because she used to be simultaneously an aide to the head of the Supreme Court and an expert at the Center of Policy and Legal Reform. The advisory group claimed that combining such jobs violated anti-corruption law.

Screengrab from Yulia Kyrychenko's interview for the position of a Constitutional Court judge on March 5, 2024. (YouTube)

Kyrychenko told the Kyiv Independent that her work as an expert at the Center of Policy and Legal Reform was scientific research, which can be combined with a state job under Ukrainian law.

The advisory group also argued that the income of Kyrychenko's husband, a private lawyer, did not match his expenses, according to data from the tax authorities.

She denied the claim, saying that she had provided information on her husband's income and that it had been sufficient to cover the expenses. The advisory group incorrectly interpreted the tax data because of a change in tax law in 2012 and the figure for her husband's income was much higher, according to Kyrychenko.

The advisory group told the Kyiv Independent that it would not provide any reasons for its decision on Kyrychenko because Ukrainian law does not require publishing such data.

“There was nothing substantial (in the issues raised by the advisory group for Kyrychenko),” Butko said. “Most of the issues could be explained.”

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