The European Council issued an opinion requested by President Zelenskyy on 25 November 2020 regarding the constitutional crisis in Ukraine following decision No. 13-r/2020 of the Constitutional Court of Ukraine adopted on October 27.
Following an urgent procedure, the Opinion prepared jointly with the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe was published on the official website of the Venice Commission on December 9. It will be submitted to the Plenary Session of the Venice Commission for endorsement on 11 December 2020.
The Venice Commission stressed that the fight against corruption is as essential as the respect for Constitution and Constitutional Justice. Therefore, the role of the Constitutional Court must be respected, and its decisions must be implemented.
According to the Venice Commission, the Parliament and the executive must respect the role of the Constitutional Court as the “gatekeeper of the Constitution”. The fight against corruption is an essential element in a state governed by the Rule of law, but so is respect for the Constitution and for constitutional justice. They go hand in hand. Parliament and the Executive must “take into account the arguments used by the Constitutional Court” and “fill legislative/regulatory gaps identified by the Constitutional Court […] within a reasonable time”.
The Venice Commission acknowledges that decision no. 13-r/2020 of the Constitutional Court of Ukraine lacks clear reasoning, has no firm basis in international law, and was possibly tainted with a major procedural flaw – an unresolved question of a conflict of interest of some judges. This is regrettable, not only because of the immediate negative effect of this decision on the fight against corruption in Ukraine, but also because such decisions undermine public trust in constitutional justice in general.
Nonetheless, the Commission noted that “constitutional role of the Constitutional Court must be respected, and the Verkhovna Rada should implement the decision by interpreting it in light of the constitutional foundations of the country and applicable international standards.
The Venice Commission invited the Verkhovna Rada to consider the following solution:
1. Parliament should consider making more explicit its presumed intention to limit the scope of Constitutional Court decisions to the specific questions raised by the parties before it.
2. The Court should be obliged to provide specific reasons for each legal provision which it finds unconstitutional.
3. The disciplinary procedure should be regulated in the Law on the Constitutional Court with further details set out in the Rules of Procedure.
4. The possibility for the re-opening of cases of the Constitutional Court should be established only when the criminal liability of a judges in relation to that decision has been established (e.g. bribe-taking).
5. A better, more detailed, definition of “conflict of interest” should be provided, for example singling out financial conflicts of interest, specifically when this results from protocols established by NAPC or the opening of investigations by NABU;
6. Decisions on (self-) recusals and their reasoning should be set out clearly in the main decision adopted by the Court or in a separate public procedural decision or ruling.
7. The quorum requirements should be reduced in those cases where a quorum is lost due to the recusal of judges, thereby avoiding the risk of non-liquet.
8. Parliament should consider adopting legislation detailing the consequences of judges of the Constitutional Court failing to abide by the legal provisions regarding withdrawal,
including making public disciplinary proceedings and decisions against judges of the Court.
9. A screening body for candidates for the office of judge of the Constitutional Court should be established, with an international component, which could include international human rights experts and participation from civil society, to ensure the moral and professional qualities of the candidates.
10. When a senate comes to the conclusion that a legal provision is unconstitutional and should be annulled, it should seek confirmation from the Grand Chamber upon request by the President of Ukraine or the Parliament. Grand Chamber proceedings should be held in public hearings as a rule.