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Why civil society and independent MPs are concerned with validity of the selection of Constitutional Court judges

Kyiv, November 24, 2017.

Civil society experts and independent MPs report on non-adherence to the transparent and just procedure when selecting the Constitutional Court judges at the parliamentary quota.

The situation with the appointment of the candidates to the posts of judges of Ukraine’s Constitutional Court at the parliamentary quota raises serious concerns with the civil society. Thus, the selection of candidates is doubted as being transparent and just, there are also doubts as to whether it provides a due check of professional and moral traits of the candidates as well as makes it impossible to appoint politically partial candidates as judges at the Constitutional Court. It was emphasized by the experts of the Reanimation Package of Reforms, of the Center for Political and Legal Reforms as well as by MPs at a press-briefing at Ukraine Crisis Media Center.

“Unfortunately, we now don’t see honest, transparent and competitive selection we discussed with the Constitutional Commission, when we were introducing respective amendments to the legislation as well as when we were making a respective draft law on the Constitutional Court […]. The Law on the Constitutional Court of Ukraine that was introduced for consideration by members of the Parliamentary committee for legal policy and justice, allows for politically-motivated appointments instead of professionally-based,” said independent MP Viktoria Ptashnyk.

Out of the five posts currently open at the Constitutional Court of Ukraine, two have to be covered through the voting at the Verkhovna Rada (Ukraine’s Parliament). Seven candidates applied for the competition. The Parliamentary committee for legal policy and justice disqualified three candidates – those who had applied as independent candidates and are not affiliated with the parliamentary factions. It comes as a result of a legal collision between the actual procedure for competitive selection to the post of a judge at the Constitutional Court, the law on the Constitutional Court itself, and the law’s transitional provisions, explained Vadym Miskyi, head of the advocacy department at the Reanimation Package of Reforms. The law itself stipulates that a candidate to the post of a Constitutional Court judge has to be politically neutral. At the same time, the transitional provisions say that the Verkhovna Rada selects the judges based on its quota and according to the parliamentary procedures.

“Parliamentary procedures have nothing to do with the law on the Constitutional Court. They stipulate that it’s only a faction that can suggest a candidate to the post of a Constitutional Court judge. It is a blatant discrepancy that is part of the transitional provisions of the new law on the Constitutional Court. It may ruin the trust in the appointment process to the Constitutional Court,” Vadym Miskyi emphasized. He reminded that it had already happened twice in Ukraine’s history that the decisions of the Constitutional Court opened the way for presidents to hijack the power.

Bohdan Bondarenko, an expert on the constitutional law at the Center for Political and Legal Reforms, said that among the three candidates the committee disqualified from the competition, there was only one constitutional law expert. However, not a single fact was found against either of them that would testify for their political partiality or compromised morale. “All the four candidates cleared by the committee as eligible for taking part in the competition are researchers, however, their Ph.D. theses do not concern constitutional law. Two of them had earlier applied to the posts of Supreme Court judges and they both failed at the stage of the practical task. […] And now they may well get appointed Constitutional Court judges by the parliament,” the expert noted.

Viktoria Ptashnyk added that at the disposal of the Verkhovna Rada there are no dossiers of the candidates to the judges’ posts at the Constitutional Court. “The selection was made based on the ranked voting, in course of which the MPs had to define whether the candidates comply with the two requirements – high morale and professional qualification as a lawyer. We have no clue how they could do it without respective information,” emphasized Yulia Kyrychenko, constitutional law expert at the Center for Political and Legal Reforms. It is also unclear what the Parliamentary committee on legal policy and justice based its decision upon.

“The selection is to define the fate of the Constitutional Court for the next nine years at least. If we don’t get truly independent and professional judges at the Constitutional Court, I am 90 percent sure that the Constitutional Court decisions will be politically motivated,” Yuliya Kyrychenko emphasized.

“We have made a statement today calling upon the Parliamentary committee for legal policy and justice to ensure transparent and quality selection, to consider all the candidates who have applied so that the criteria of political neutrality are met. […] I very much hope that the Parliamentary committee for legal policy and justice will ensure that the competition is held in a transparent and professional way foreseen by the respective procedure of the Verkhovna Rada,” Viktoria Ptashnyk elaborated.

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