Venice Commission does not support cancellation of Constitutional Court decision, its dissolution
The European Commission for Democracy through Law (Venice Commission) did not support the idea of cancelation of the decision of the Constitutional Court of Ukraine and its dissolution, according to an opinion at the request of President of Ukraine Volodymyr Zelensky regarding the constitutional crisis created by the decision of the Constitutional Court of Ukraine on October 27.
"Notwithstanding the circumstances set out in Section III above, the rule of law therefore requires that Decision 13-r/2020 be implemented. As pointed out in the joint letter by the Presidents of the Venice Commission and GRECO the annulment of a decision of the Constitutional Court and the dismissal of all its judges would be unconstitutional and would contradict the rule of law," according to the urgent opinion on the reform of the Constitutional Court, published on the website of the Venice Commission on Thursday.
"The Constitutional Court cannot be 'punished' for its decisions, but its working can be improved," the document said.
"Decision 13-r/2020 is therefore only an indication that a reform of the Constitutional Court is warranted and a starting point for a reform. In this context, the Commission will also refer to its 2016 Opinion on the then draft law on the Constitutional Court for reference," according to the urgent opinion.
The Commission said׃ "The difficulties presented by the problematic Decision 13-r/2020, on the one hand, and the corresponding proposal of the President in draft law No. 4288, on the other, concern an underlying issue that in different ways arises in all constitutional democracies: 'who has the final say? The Constitutional Court or Parliament?'"
"The answer depends in part on the temporal scope of the conflict: in relation to a specific case being litigated, the final say is for the Constitutional Court. The Constitutional Court's decisions are final and binding. Its decisions are not infallible, but they are final nonetheless, even when they might be considered wrong. This principle is clearly stated in many constitutions, including the Constitution of Ukraine," the Venice Commission said.
"Political bodies must not be allowed to terminate the powers of individual judges of the Constitutional Court [except through processes of impeachment where this is established by the constitution], or of the whole body of the Court collectively. Nor should Parliament block the activity of the Constitutional Court through financial pressure or procedural obstacles or similar efforts. This would amount to a major, severe, breach of the rule of law, and the constitutional principles of the separation of powers and the independence of the judiciary," the Commission said.