At the end of the sixth session of the eighth convocation, after many unsuccessful attempts, the Verkhovna Rada of Ukraine managed to adopt the new wording of the Law of Ukraine “On the Constitutional Court of Ukraine”. The indicated edition, it should be noted, is far from the worst possible option, although it is not without faults, including the systemic nature.
The purpose of this analytical review is to attempt to provide objective coverage of both positive and negative aspects of the adopted law, which will further improve its editorial content, and in no case, is any political or custom nature.
During the preparation of this review, attention was first paid to the assessment of the legal institutions provided by the law, the quality of their legal regulation, and their potential application in order to further establish the rule of law in the national legal system.
1. The first thing that attracts attention is the new competitiveness position relative to the election of judges of the Constitutional Court. In this aspect, I would like to point out at the outset that these provisions could be significantly more advanced and provide for truly transparent and objective competitive procedures, rather than containing only general principles for this. However, taking into account the national practice of lawmaking and enforcement, especially with regard to the construction and settlement of the activities of higher authorities, hoping for greater openness and transparency of this procedure, at least, was, unfortunately, a naive thing. At the twenty-sixth year of independence, the state legal policy continues to be in the coordinate system of post-Soviet thinking, leaving the issue that is most significant for the construction of transparent legal mechanisms without a clear normative regulation.
On the other hand, the above mentioned provisions are similar to those envisaged, in particular, for the election of members of the High Council of Justice. In this case, the NGO “Law Development Centre” does not in any case advocate for commentary, but not to highlight the more qualitative legislative regulation of the issue raised, as compared with the old law, will also not be objective in their assessment. After all, in the presence of good political will, it is possible to form a high-professional independent Constitutional Court. On the other hand, in the absence of such will, even more complex and several stage competitive procedures will not deliver the desired results. Therefore, the assessment of these provisions is more likely to be more positive than negative.
2. Another innovation, of course, is the institute of the constitutional complaint, which provides the possibility to appeal to the Constitutional Court on the question of the constitutionality of the law or its provisions applied in the final judicial decision to an individual in whose case such law (the provisions of the law) has been applied. The mentioned institute is certainly a new page in the history of the development of constitutional jurisdiction, and will promote better protection of human rights, freedoms and legitimate interests, as well as achieve greater harmonization of the current legislation. This institution acquires practical value in connection with the existence of such a procedural instrument in the Court as an interim order which may be issued by the Court when considering a constitutional complaint, the purpose of which is to prevent the occurrence of irreversible consequences that may arise in connection with the execution final court decision. The feature of the safeguard order is that it has the status of an executive document, which in this regard acquires an absolutely applied nature. In the absence of such status, the institution of the constitutional complaint would have an ephemeral value for a specific person who appealed to the Court with a constitutional complaint, since after passing all the court instances provided for by law and turning to the Constitutional Court at the end of this process, a person would eventually receive only the legitimate possibility of further litigation in his case after the decision of the Constitutional Court. With the advent of the institution of a security order, protection of rights becomes more realistic, ensuring that the onset of irreversible consequences in connection with the application of unconstitutional provisions of the legislation is made impossible.
Therefore, the institution of a constitutional complaint deserves comprehensive support in its formation and further development.
3. The positive aspect of the Law is an increase from 10 to 15 years of the necessary professional experience in the field of law for candidates to a judge of the Constitutional Court. Given the nature of the issues under consideration by the Court, such a legislator’s step certainly will improve the quality of this body.
Also, within the limits of the issue of the requirements for candidates in the judge of the Constitutional Court, it should be noted as positive – the requirement for the recognized level of competence. Of course, the assessment of the presence or absence of such a level will be subjective, but this will allow at least a public discussion on this issue and, in the event of a critical mass of collective non-recognition by the legal community, the fact that for a judge of the Constitutional Court have choosed a person of little known in a professional public sphere, provides a hypothetical opportunity to influence the final decision-making by an authorized entity on this candidate. It is worth mentioning only the case of the electioning by the Verkhovna Rada of Ukraine a person with a dubious professional reputation as a judge of the Constitutional Court in 2006, which was subsequently resigned for the violation of the oath, as the value of such a legislative requirement becomes evident and needs to be fully applied and developed.
4. One can not be unmarked the positive position of the bodies of the Constitutional Court: the Grand Chamber, the Senate and the Colleges. Compared to the old version of the Law, which provided for the existence of permanent and temporary commissions as auxiliary working bodies of the Court with an abstract definition of their functions (organization of internal activities of the Court and additional study of issues related to the constitutional proceedings in the case), the new Law is sufficiently structured and it is clear not only the functions of the new bodies of the Court, but also the order of their formation and the system of interaction between them. In particular, it is a decentralized approach about the application regarding the issue of opening or refusal to open constitutional proceedings in a case under a constitutional petition, a constitutional suit and a constitutional complaint with the foreseen procedure for further action.
This approach will certainly helps to streamline the work of the Court and make it more operational, structured and understandable for a third-party observer.
5. The latest positive innovation in the Law, which I would like to draw attention to in this analytical review, is the institution of the Court’s annual information report, in which the Court will inform about the results of its activities and financial support for the previous year. The report will be sent to the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine, the Supreme Court, the Commissioner of the Verkhovna Rada of Ukraine for Human Rights, and, equally important, will be made public.
The proper practical implementation of these provisions of the Law will promote both the harmonization of the state legal policy and will serve to establish the accountability of the Court to the public, which will surely be reflected at the level of trust in it.
6. The second part of the review would begin with an analysis of the provisions that should be clearly attributed to the positive aspects of the Law in its content, however, which, as a result of the obscene and unsystematic policy of the legislator, are in a legal imbalance with similar provisions of the Law of Ukraine “On the Judiciary and the Status of Judges.
What does it mean?
Part Four of Article 24 of the Law provides that a judge of the Constitutional Court without the consent of this court can not be detained or taken into custody or arrested until the conviction is made by a court, except for the detention of a judge of this court during or immediately after the commission of a grave or especially grave crime.
The said provisions fully reproduces part three of Article 149 of the Constitution of Ukraine, which regulates the independence and immunity of a judge of the Constitutional Court, which can not be marked as positive, in contrast to the situation related to legislative regulation of the issue of detention, taken into custody or arrest of a judge of judicial system before the conviction of a court against him.
Thus, Article 126 of the Constitution of Ukraine provides the same procedure for the detention, custodial or arrest of a judge of a generl court system or a judge of the Constitutional Court of Ukraine. However, Article 49 of the Law of Ukraine “On the Judiciary and Status of Judges”, the task of which, among other things, is the implementation of the provisions of Article 126 of the Constitution, substantially expanded the established legal framework for regulation of this issue. In particular, part two of the said article of the law provides that a judge detained on suspicion of committing an act for which criminal or administrative liability has been established must be immediately released after the determination of his person, with the exception of:
1) if the High Council of Justice has given consent to the detention of a judge in connection with such an act;
2) the detention of a judge during or immediately after the commission of a grave or especially grave crime, if such detention is necessary to prevent the commission of a crime, to diverse or prevent the consequences of a crime or to ensure the preservation of evidence of this crime.
It is clear that such a condition, first, is not provided for by the Constitution of Ukraine, and secondly, contrary to the procedure established by it for the custodial or detention or arrest of a judge of the judicial system, and therefore causes serious doubts in its constitutionality.
However, this is not exhaustive, as Article 482 of the Criminal Procedure Code of Ukraine introduces an even greater imbalance between the constitutional and legislative level of regulation of the issue raised, adding the above provisions of the Law of Ukraine “On the Judiciary and Status of Judges” by another additional condition, namely, the judge has be immediately released if the purpose of such detention (preventing the commission of a crime, diverse or preventing the consequences of a crime or ensuring the preservation of evidence of this crime) has been achieved (paragraph 2 para. to the third part of the first section of the said article of the Code).
As a result, if we compare the legal structure of Article 126 of the Constitution of Ukraine and the provisions of Articles 49 of the Law of Ukraine “On the Judiciary and Status of Judges” and 482 of the Criminal Procedural Code of Ukraine (with their additional conditions and systemic application), it becomes apparent that these are completely different by their legal nature legal mechanisms for regulating the issue of detention or custody or arrest of a judge of the court system of the general court system, and the specified provisions of the law and the code do not comply with the Constitution of the state – the Constitution of Ukraine.
The Law of Ukraine “On the Judiciary and Status of Judges” was adopted on the same day with amendments to the Constitution of Ukraine on June 2, 2016, and its main task was the implementation at the legislative level of the updated constitutional provisions on justice. Changes to the Article 482 of the Criminal Procedural Code of Ukraine were introduced by the Law of Ukraine “On the High Council of Justice” on December 21, 2016.
Thus, after the adoption of the first “unconstitutional” legislative provisions, the subject of their regulation was purposely even more modified from the constitutional in almost half a year by the following legislative provisions. To explain this as a simple accident is quite difficult.
In considering the issue raised, it should also be noted that, unlike the laws of Ukraine “On the Judiciary and Status of Judges” and “On the High Council of Justice,” the Draft Law on Amendments to the Constitution of Ukraine (on Justice) was the subject of consideration by the Venice Commission, which, as we know, gave a very positive conclusion about its provisions. How would appreciate such an arbitrary “implementation” of the provisions of the Constitution of Ukraine of the Venice Commission – a rhetorical question, but it is unlikely if approved.
And finally, in the spirit of the above-mentioned policy of the legislator, the High Council of Justice on January 17, 2017, placed on its official website a Public Appeal to investigators to comply with the provisions of Article 126 of the Constitution of Ukraine, but did so in the interpretation of the aforementioned provisions of the Law of Ukraine “On the Judiciary and the status of judges “and the Criminal Procedural Code of Ukraine. Thus, with its legal position, the High Council of Justice finally overturned these constitutional provisions, and substantially complicated the procedure for bringing illegal judges to criminal responsibility (even taking into account the changes made to its Rules of Procedure regarding the promptness of consideration of the appeals by the Prosecutor General on the issue raised).
Further application of this approach negatively affect public confidence in the judiciary as a whole because it does not satisfy the full sentence requested dishonest judges and all judiciary will ask in a more threatening situation relating to cases of “national lynching.”
In turn, in spite of the full constitutional compliance of the provisions of the Law of Ukraine “On the Constitutional Court of Ukraine” with regard to the issue of detention or detention in custody or arrest of a judge of the Constitutional Court prior to the conviction by a court, in the end we have less legal “security” of the judge of the Constitutional Court in relation to to judges of local, appellate courts and the Supreme Court. Of course, due to the fact that the legal status of judges of all the aforementioned courts is regulated by different laws, it should not be the same, but the legislator’s intention was hardly intended to establish weaker legal safeguards for 18 judges of the Constitutional Court, which deal with the special issues of state formation in the appeals of higher authorities, in contrast to almost 4500 judges, the subject of consideration of which is mostly disputes between legal entities and individuals.
Taking into account that the Criminal Procedural Code of Ukraine does not contain “additional guarantees” on the issue of inviolability of judges of the Constitutional Court, to justify the use of a constitutional, other than a constitutional, procedure of detention or detention in the Constitutional Court (as the subject of the formation of practice on the issue raised), or the arrest of a judge of the Constitutional Court without making appropriate amendments to the law is not possible.
7. Outright surprise is Article 30 of the Law on the requirements for a scientific adviser to a judge of the Constitutional Court. In accordance with the Law, the specified person carries out a task of a judge of the Constitutional Court on constitutional proceedings, is subordinate to him directly, and whose position belongs to the patronage service. To become a scientific adviser to a judge of the Constitutional Court, for some reason, it is not necessary to have a degree, it is enough to have higher legal education and professional experience in the field of law not less than three years. In addition to the obvious terminological mismatch between the title and the content of the specified norm, it remains unclear what value the judge of the Constitutional Court, for example, when considering the question of the constitutionality of the law or the interpretation of the provisions of the Constitution of Ukraine, may constitute a person’s professional experience, in no way connected with studying or developing a system of law or a system of law?
I would like to believe that this is a technical mistake, and not a true conviction by the authors of the Law that in order to solve the most important and complicated issues in the field of law, one should rely on the above professional experience of individuals. The specified norm should be changed by the earlier, the better.
8. By analyzing the issue of financing the Constitutional Court, can not be unnoted the absolute illogicality and ungroundedness of the provisions of part one of Article 48 of the Law, which stipulates that the expenses and financial support of the Constitutional Court next year may not be lower than the expenditures in the previous fiscal year.
Realizing the desire of the authors of the Law to ensure the financial independence of the single body of constitutional jurisdiction, it should be noted that in this case we have an excessive manifestation. It is clear that the programs and activities that are eligible for funding in a specific budget for a given year can be significantly different from programs and activities that can be implemented in any other budget year, which logically will differ in size and size financing However, in accordance with the requirements of Article 48 of the Law, it is sufficient once the Constitutional Court has received funding for, say, the renovation of technical equipment, fleet or major repairs of the buildings of the Court, in all subsequent years the law will require that the costs of the Court’s financing be of the same magnitude , even when it clearly does not meet objective needs.
To argue in this case why this is not the correct approach to the financing of the Court, and why it does not meet the principles of budgeting does not feet. The specified norm should be changed, and in matters of legal regulation of legal relations, to deviate from the attempt to achieve a comprehensive normative regulation, which is so inherent in the national state legal policy. In the aspect of the issue raised, the regulation of the question of the size of the financing may well be attributed to the institutional level of the relationship between the Court and the Ministry of Finance.
9. Part Four of Article 11 stipulates that a person who owns shares or owns other corporate rights or has other property rights or other property interest in the activities of any legal entity with a view to obtaining income during the term of office of a judge of the Constitutional Court transfers such shares (corporate rights) or other relevant rights to the management of an independent third party (without the right to instruct such person regarding the disposal of such shares, corporate, other rights or instructions for the implementation of andin which ones occur).
It should be noted that a similar provision is contained in the laws “On the Judiciary and the Status of Judges” as regards judges and members of the High Qualifications Commission of Judges and “On the High Council of Justice” regarding the members of the said body.
At first glance, such a constraint is quite logical and necessary, and from a practical point of view this is the case. However, from the point of view of state regulation in this case, it should be a matter of impossibility by a person appointed / elected to a public office, to manage the shares and rights belonging to him on the right of ownership. This is achieved by establishing a prohibition of such a right, which, in turn, is provided either by the complete alienation of such property / rights (sale, donation, etc.) or, as provided for in the rule of law, by transferring such property / rights to a third party in management. Of course, the law can not directly oblige a person to sell or give away property / rights, but the law can not imperatively establish one way to achieve the impossibility of managing a person owned by her property or rights.
In order to achieve legal clarity in legislative regulation, the specified norm, as well as similar norms of the laws of Ukraine “On the Judiciary and Status of Judges” and “On the High Council of Justice”, should be improved.
10. Part one of Article 59 of the Law provides that the judge-rapporteur in the case shall be determined by the distribution of appeals to the Court between the judges alternately, in alphabetical order, taking into account the surname, name and patronymic.
From a legal point of view, the proposed approach does not raise any comments. At the same time, given the practice of using state institutions of legislation, in particular during various kinds of manipulation of the distribution of cases between judges of the judiciary system in order to ensure the distribution of specific cases to the necessary judges (occasional cases occur), and taking into account the general level of trust in the state-regulated norm would have to provide for a much more qualitative and more objective order of distribution of cases in the Court. After all, the judge-rapporteur, in accordance with the same article of the Law, has a fairly wide scope of powers related to the preparation of the case for consideration by the College, the Senate or the Grand Chamber (requiring documents, materials from a wide range of subjects, including higher authorities, involves the processing of specialists’ documents, proposes the appointment of an expert examination, etc.). It is clear that from the issue of organizing the preparation of the case for consideration, the results of consideration of such a case depend to a certain extent. Again, given the nature of the issue being the subject of consideration by the Constitutional Court, the general ideology of the law, the construction of its institutions, the established procedure for regulating the issue in particular, should maximally facilitate the creation of prerequisites for a high level of trust in such an authority and its decisions, and not vice versa – to lay down mechanisms that will contribute to manifestations of all kinds of manipulation.
At the end of this analytical review, I would like to note, in general, the rather high quality of the Law of Ukraine “On the Constitutional Court of Ukraine”, both in terms of content and the statement of its provisions. Given their fair use, this opens up great opportunities for the development of a constitutional jurisdiction institute in Ukraine as an indispensable and system-creating mechanism for the harmonization of state legal policy. On the contrary, by implementing a short-sighted, selfish political approach to establishing external control over this body in order to obtain the necessary solutions for personal needs, all progressive provisions provided for by the said Law will lose their value for virtuous representatives of the professional environment, and the potential possibility of the Constitutional Court to become one of the pillars public trust, will remain potential.
Viacheslav Panasiuk, Chairman of NGO «Law Development Centre»