10:55 11.12.2020

Venice Commission makes public opinion on Constitutional Court reform with recommendations

4 min read
Venice Commission makes public opinion on Constitutional Court reform with recommendations

European Commission "For democracy through law" (Venice Commission) published its decision on the reform of the Constitutional Court of Ukraine (CC), providing specific recommendations.

In the text of the decision, published on Thursday on the website of the Commission, The Venice Commission takes Decision 13-r/2020 of 27 October 2020 of the Constitutional Court as an "indication that a reform of the Constitutional Court is warranted and as starting point for reform."

"In this context, the Commission will notably refer to its 2016 Opinion on the then draft law on the Constitutional Court. Therefore, the Venice Commission makes the following recommendations as concerns amendments to the Law on the Constitutional Court: 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," the decision reads.

The Venice Commission also recommends that the Court should be obliged to provide specific reasons for each legal provision which it finds unconstitutional. The disciplinary procedure should be regulated in the Law on the Constitutional Court, with further details set out in the Rules of Procedure.

The possibility for the re-opening of cases of the Constitutional Court should be established only when the criminal liability of a judge in relation to that decision has been established (e.g. bribe taking). 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.

"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. The quorum requirements should be reduced in those cases where a quorum is lost due to the recusal of judges," the Commission notes.

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.

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. 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.

While the procedure before the Constitutional Court and notably aspects relating to the rights and obligations of parties should be regulated in the Law on the Constitutional Court, the Court should be able to define further details of its procedure in its own Rules of Procedure, the Venice Commission says.

The Venice Commission recommends filling the current vacancies at the Constitutional Court by the Parliament and the Congress of Judges only after an improvement of the system of appointments as set out above (screening body). The establishment of such a system is therefore urgent to fill these vacancies.

In order to depoliticise the composition of the Constitutional Court, the judges on the parliamentary quota should be elected with a qualified majority. For this, a constitutional amendment would be required at a later stage. A useful practical measure would be that newly appointed judges of the Constitutional Court should benefit from special, including international, training on constitutional interpretation.

In the process of reform of the Constitutional Court the latter should be properly consulted on all aspects of the reform. In the light of the specific situation in Ukraine, the Constitutional Court should show some restraint if amended provisions were challenged before the Court. The Venice Commission is available to assist in this matter.

The Venice Commission remains at the disposal of the Ukrainian authorities for further assistance in this matter, including a more profound examination of the Law on the Constitutional Court.

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