The Venice Commission has published an opinion on the draft law on the Constitutional Procedure and the alternative draft law on the Constitutional Court of Ukraine – in general, there are many improvements, but there are also shortcomings that need to be corrected.

The opinion was adopted at the plenary session of the Venice Commission, which took place from March 19 to March 20.

"The Venice Commission welcomes that President Zelensky withdrew draft law No. 4288 that would have terminated the powers of all judges of the Constitutional Court. The Venice Commission also welcomes that Parliament is now examining draft law No. 4533 on Constitutional Procedure, which takes up many recommendations made by the Venice Commission in its Urgent Opinion on the Reform of the Constitutional Court," the Venice Commission said in its opinion.

"Draft law No. 4533 brings about many improvements. It substantially changes the current regulations of the constitutional proceedings [law on the Constitutional Court and rule of procedure]. The main novelties have been introduced in the field of constitutional complaints, publicity and openness of constitutional proceedings, formation of senates and boards and distribution of cases, access to case materials, disciplinary responsibility of judges and the internal functioning of the Constitutional Court. These changes are welcome," the Venice Commission said.

"The draft law introduces the Automated Document Management System, which provides public access to case files and is used to compose senates, boards and appoint judge rapporteurs. Judges can overcome a possible blockage by a judge-rapporteur or the Chair in establishing the Court agenda," according to the opinion.

"The draft law would also improve the applicants' access to the Court through various means [electronic complaints and communication, time period for elimination of shortcomings in the complaint, interim measures, reimbursement of expenses, compensation for undue delays]. It is positive that the quorum is lowered when one or two judges have [self-]recused," the Venice Commission said.

According to the opinion, in line with its recommendations in the Urgent Opinion on the Reform of the Constitutional Court, the Venice Commission welcomes that decisions of a senate annulling a legal provision have to be confirmed by the Grand Chamber and that the Court is limited to the scope of the appeal/complaint. In line with the Commission's recommendations, draft law No. 4533 also addresses the need to provide sufficient and coherent reasoning for the decisions of the Court. "However, draft law No. 4533 also has some shortcomings. Most importantly, the draft law does not contain provisions on a new system of competitive selection of judges involving an international component as recommended in the Urgent Opinion. While this appointment system does not need to be included in draft law No. 4533, the amendment to Article 11 of the law on the Constitutional Court should be removed and current vacancies at the Constitutional Court should be filled only after an improvement of the system of appointments," the Venice Commission said.

Summarizing the above, the Venice Commission recommends the following amendments to the draft law. "For procedural economy, constitutional complaint proceedings in which a senate finds a legal provision unconstitutional should be transferred to the Grand Chamber only if the President or the Parliament request such a transfer. As concerns disciplinary proceedings, instead of the executive power the initiative to start disciplinary proceedings should be given to the National Agency on Corruption Prevention within the limits of its competence," according to the opinion.

"In order to operationalize the disciplinary system, for disciplinary offences below the threshold of 'serious disciplinary offence', other sanctions should be introduced, such as warnings, reprimands, reduction of salary, etc. and these sanctions should be applied by a simple majority of the judges. Failure to adopt disciplinary sanctions within six months should not automatically lead to the end of disciplinary proceedings," the Venice Commission said.

The Court should be able to review its own decision in the event that one of its judges voting in favor of that decision has been condemned in final instance for taking a bribe in connection with the adoption of that decision.

The Venice Commission said that in Ukraine, the specific situation following decision 13-r/2020 can justify raising temporarily the voting requirement in the Grand Chamber. Any increase in the number of votes required should however be a percentage of the number of judges actually appointed rather than a fixed number out of all 18 judges. Such an increase can be justified only until a certain percentage of judges have been appointed according to the new system of competitive selection. "Finally, the Constitutional Court should be given an occasion to express its view on the revised draft law. The Venice Commission remains at the disposal of the Ukrainian authorities for further assistance in this matter," the document said.