In October 2020, the Constitutional Court of Ukraine (hereinafter the CCU) adopted a decision that declared the electronic declaration system of officials unconstitutional and effectively demolished a crucial part of Ukraine's anti-corruption infrastructure. Then it caused mass protests, an international scandal and a protracted constitutional crisis. The President called the decision organisers "the devils who came out of political hell on Halloween", and the Secretary of the National Security Council, Oleksiy Danilov, claimed that the Russian Federation directly influenced the judges.
At the same time, at the request of President Zelensky, the Venice Commission (hereinafter the VC) adopted an urgent opinion which explicitly stated: such decisions are a consequence of the political dependence of judges, and the way out is in an independent procedure for their selection. For this, experts emphasised, a commission independent of politicians should be established, consisting of international experts (by analogy with the reform of other judicial bodies) and public representatives (for example, delegated by the Public Integrity Council). After that, the Venice Commission reiterated the statement two more times in its other two opinions.
Despite all this, the CCU reform made no headway for about two years.
Everything changed when Ukraine received the EU candidate status. The European Commission and the European Council have identified the reform of the CCU as number one among the conditions for obtaining candidate status, without which Ukraine cannot open accession negotiations. It was also stated that the reform should follow the recommendations of the Venice Commission.
The priority of the movement towards the EU for President Zelensky played a decisive role: the reform of the selection of the CCU judges began to move. In September, draft law No. 7662 was approved in the first reading, and it seemed that the proper reform of the Constitutional Court, and the effective protection of the Ukrainian Constitution and reforms, were not far off.
But the bad news came unexpectedly - in its recent opinion, the Venice Commission almost made a U-turn on its position on the reform, thereby endangering systemic changes in the CCU and paving the way for a concentration of power unacceptable for democracy.
This text explains what is wrong with the opinion and how Ukraine can prevent a negative scenario.
Factual errors and false conclusions
Before criticising the decision of the Venice Commission on draft law No. 7662, it stands to mention that the Venice Commission is traditionally very meticulous in assessing the situation and collects the opinions of all participants in the process, including the public, which makes its opinions factually accurate and balanced.
Against this background, the recent opinion of the Venice Commission is particularly surprising because it contains a number of errors and misinterpretations. As a result, it gives recommendations that undermine the very essence of the reform.
First of all, the Venice Commission proposes to establish that the decisions of the Advisory Group of Experts (hereinafter the AGE, which actually serves as a selection commission for constitutional judges) are not binding but have a recommendatory nature. The Commission reached this conclusion based on a false statement that the integrity of candidates is allegedly guaranteed when they pass a special background check.
But it is not so! The special background check, which verifies candidates’ compliance with several formal criteria, has nothing to do with the integrity check at all.
Second, the Venice Commission itself recognises that the inclusion of one representative of the President, the Parliament and the Congress of Judges (i.e. 3 out of 6 members) in the AGE proposed in the draft law exacerbates the issue of politicisation of the selection of judges of the CCU.
But, having recognised this, the Commission concludes that "in the current conditions", the proposed composition can be approved, and it can be hoped that the international experts will be a sufficient deterrent for the political part of the AGE, although the experience of Ukraine, in particular during the recent selection of the Head of the SAPO, refutes the assumption that such "deterrence" works without the mechanisms provided for it.
Here’s a notable detail: although the text of the opinion contains the idea of appointing a seventh member from the international community, which would change the balance, this thesis was not included in the conclusions (that is, recommendations for the Ukrainian authorities).
This is surprisingly illogical because the Commission itself refers to the Ethics Council's positive experience on the reform of the High Council of Justice.
But at the same time, in its recommendations, it deprives the AGE of everything that is the key to the success of the current judicial reform.
The components of success are the right to screen out candidates of low integrity and the lack of the "political part" of the commission of possibility to block potential agents of change (which is available here, in the case of a three to three votes distribution).
In fact, the Venice Commission at best condemned the reform of the CCU to a repetition of the fate of the selection of the Head of the SAPO, when political appointees spent months making up various reasons why they could not approve the winner of the competition, who did not suit the government. In the worst case, to the entry into the Constitutional Court of "grey horses", whose biography does not have obvious spots for which they could be "banned" by international experts but whose level of loyalty would suit the political authorities.
Third, the Venice Commission made a U-turn on its previous recommendations regarding the composition of the selection commission. In its previous opinion, it recommended that not only international experts but also representatives of civil society (for example, members of the Public Integrity Council) be included in the commission for the selection of candidates for the position of a judge.
In the latest opinion, the statement that civil society's "diversity and polarisation" will not allow electing such representatives from the public that would satisfy the entire civil society suddenly appeared. Such a statement also contradicts the previous points of view of the Commission, which recognised the important role of civil society in institutional reforms in Ukraine and the positive experience of the Public Integrity Council.
What went wrong?
What caused such a difference in approaches and, in fact, a 180-degree shift from not one but three previous conclusions?
Probably, the fact that the VC experts (contrary to previous practice!) did not send the draft opinion for comments to the European Commission, although they referred to it in the text, played a role. But, as usual, the document was provided to the representatives of the Ukrainian authorities, as a result of which the first draft of the opinion underwent significant changes. Perhaps it was then that the above false statements appeared in it.
We certainly do not blame the Venice Commission for anything. Presumably, with this decision, the Commission decided to support Ukraine in war conditions, refusing to criticise the draft law from the authorities sharply. This is hinted at by the text of the document itself, mentioning several times "the present circumstances" in which Ukraine is.
But the unity of the government and society in matters of resistance to Russian aggression does not mean unity in matters of independence of key constitutional institutions. Authorities, especially in the legal and political tradition of Central and Eastern Europe, always want to have control over constitutional jurisdictions. On the contrary, society would always prefer an independent safeguard against abuse.
However, the fact remains: the opinion is 100% complimentary and convenient specifically for the Ukrainian political authorities. It practically does not contain recommendations that should protect Ukrainian society from potential abuses of power.
And it can not only harm judicial reform and European integration but also has every chance to give a "green light" to the seizure of the Constitutional Court with consequences for democracy, the threat of which is traditionally extremely high during the war and immediately after its end.
Consequences of "help"
The version of draft law No. 7662, adopted in the first reading before the opinion of the Venice Commission, was not bad. It already provided for the binding nature of the decisions of the AGE, and half of it consisted of independent international experts.
It was enough for the Venice Commission to reiterate its previous recommendations (which the participants of the process expected), to give advice on improving the composition of the AGE and selection procedures - and a strong and independent Constitutional Court in Ukraine would finally become a reality.
Instead, after receiving the Venice Commission's opinion, the Ukrainian authorities' representatives significantly worsened the draft law, removing from among other provisions regarding the binding nature of the decisions of the AGE, to which the MPs happily "agreed". But this means that the exercise of creating it simply loses its meaning! And the draft law under the guise of reform cements the system and will make the Constitutional Court even more dependent instead of depoliticising it.
It may seem that it may only have long-term consequences. But that's not true either.
The current political authorities already control five judges of the Constitutional Court of Ukraine, including four that they appointed without competition, contrary to the previous recommendations of the Venice Commission. The Congress of Judges plans to fill two vacancies in the next few months. And three more under the Parliament's quota appeared literally yesterday. Even taking into account the time required for the adoption of the law and the formation of the DGE, the Ukrainian authorities will have ten controlled judges - that is, a majority of 18 - until the end of April at most.
And this is a direct threat to democracy - now, during the war, and after it.
In addition to "traditional" issues of human rights, the Constitutional Court is already considering a number of fundamental issues for compliance with the Constitution - judicial and medical reforms, the High Anti-Corruption Court, the law on the Deposit Guarantee Fund of Individuals, on which the financial system of the state is actually built, and many others. And in the future, it will consider even more - from the possibility of holding early elections immediately after the abolition of martial law (which will almost certainly extend the tenure of the current government for another five years) to the issues of reintegration of the occupied territories and changes to the Constitution, necessary for joining the EU and NATO.
These issues will be heard by judges selected in the coming months under the new law, whose term of office will last nine years.
Thus, right now, without any pathos or exaggeration, is a historical moment that will determine what the Constitutional Court will look like and, therefore, the entire country in the coming decades.
If Ukraine was not currently fighting for its independence and did not have an urgent need to join the Western democratic world by becoming part of the EU and NATO, it would be possible to continue the trial-and-error path we have been following for almost nine years.
But in the conditions of armed aggression of the Russian Federation, we do not have the luxury of endless time.
And if the anti-reform is carried out, it will be extremely difficult, if at all possible, to reverse it in the future. We can all see the evidence of this by way of examples of other countries of Central and Eastern Europe.
How to save the situation
Theoretically, the Venice Commission can change its opinion at the plenary session on December 16-17, although the Venice Commission resorts to such a step exceptionally rarely. And it is unlikely to change anything because the MPs are going to vote on draft law No. 7662 earlier, at the beginning of the next week.
In addition, under martial law, other tools of democracy that are usually available to society and could make a difference (rallies, discussions, open committee meetings, and public hearings) are limited or impossible, and society's attention is wholly focused on one topic - war.
The only one who can influence the situation and on whom there is hope is the EU, which we want to become a part of.
The fact that the reform of the selection of the CCU judges is a "candidate criterion" determined for Ukraine gives the EU leverage.
Traditionally, because of the precise and steadfast position of international partners, we succeed in making positive changes in the judicial system.
At one time, the position of the EU and the IMF made it possible to adopt the law on the High Anti-Corruption Court in a version that guaranteed its effectiveness due to the key role of independent international experts. The role of the G7 countries was invaluable during the adoption of the laws on the reform of the HCJ and HQCJ, which developed this success and are already bearing unprecedented fruits.
There is more than a ball in the EU’s court now. Because it's not about games, even figuratively, it’s about the fate of Ukraine and whether it should be a democracy or not.
The alternative to the EU's clear position on the CCU is not just bad but catastrophic.
Because much worse than simply the absence of changes is the anti-reform, which was dubbed a reform and given the "green light" at the highest level in Europe. This will not only make a key constitutional jurisdiction dependent for years but will also contribute to the rapid movement away from the democracy of the country, which today is a model of dignity, freedom and hope for the entire free world.
Please, let's not let it happen.
Mykhailo Zhernakov, Stepan Berko, DEJURE Foundation
Halyna Chyzhyk, Anti-Corruption Action Center
Kateryna Butko, Automaidan