May 12, 2023
On Thursday, May 11, the Grand Chamber, at the public part of the plenary session in the form of oral proceedings, has started consideration of the case upon the constitutional petition of the Supreme Court regarding the constitutionality of the paragraph 23-1.13 of Section III “Final and Transitional Provisions” of the Law of Ukraine “On the High Council of Justice” of December 21, 2016 No. 1798-VIII (hereinafter referred to as the Law No. 1798), sub-paragraphs one, six, eleven of paragraph 4 of Section II “Final and Transitional Provisions” of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on the Procedure for Election (Appointment) to the Positions of Members of the High Council of Justice and Activities of Disciplinary Inspectors of the High Council of Justice” of July 14, 2021 No. 1635-IX (hereinafter referred to as the Law No. 1635).
The Supreme Court filed a petition with the Constitutional Court of Ukraine to verify the compliance of the disputed provisions of the said laws, which regulate the procedure for the Ethics Council to make decisions based on the results of voting, its assessment of compliance of the members of the High Council of Justice with the criteria of professional ethics and integrity, etc. with Articles 8, 19, 126, 131 of the Constitution of Ukraine.
At the plenary session, the Judge-Rapporteur in the case, Viktor Kychun, outlined the content of the constitutional petition and the grounds for initiating constitutional proceedings in the case.
From the analysis of the content of the constitutional petition and the materials attached to it, the Judge stressed that the Law No. 1635 was adopted to improve the procedure for electing members of the High Council of Justice in accordance with the criteria of professional ethics and integrity, to increase the institutional capacity of the High Council of Justice, and to increase the level of public confidence in judicial self-government bodies, in particular in the judiciary as a whole.
The subject of the petition argues that the impugned provisions of the Law No. 1798 and the Law No. 1635 allow for the immediate termination of the High Council of Justice, which poses real significant threats to the principle of continuous functioning of the public authority; provide for re-evaluation of members of the High Council of Justice who are judges and have already been evaluated for compliance with the criteria of professional ethics and integrity; provide for a procedure for dismissal of members of the High Council of Justice that does not comply with the rule of law; level the established procedure for the formation of the relevant body, which violates the principles of judicial independence.
The Judge emphasised that in the course of preparing the case file for consideration, the Legal Department of the Secretariat of the Constitutional Court of Ukraine was asked to prepare a scientific and expert opinion and provide answers to a number of questions. In addition, in order to ensure a full and objective consideration of the case and the Court's adoption of a reasoned decision, letters of requests were sent to higher education institutions, members of the Research and Advisory Council of the Constitutional Court of Ukraine, scholars Yurii Babarash, Serhii Riznyk, and Stanislav Pohrebniak with a request to express their positions on the issues raised in the constitutional petition.
The Judge informed that the vast majority of experts had already expressed their positions, in particular, responses were received from the Yaroslav Mudryi National Law University, Taras Shevchenko National University of Kyiv, National University of Odesa Law Academy, Uzhhorod National University, and the case file contains the scientific position of the Chairman of the Verkhovna Rada of Ukraine.
At the same time, the Judge informed that in June 2022, the Constitutional Court of Ukraine addressed the European Commission for Democracy through Law (Venice Commission) with an amicus curiae request on certain issues of Law № 1635. In particular, among the issues outlined were the following: “Could the implementation of this procedure lead to the termination of the High Council of Justice, which would result in non-compliance with the principle of the rule of law and the principle of judicial independence and the narrowing of the principle of continuous functioning of the High Council of Justice established by Article 131 of the Constitution of Ukraine?”, “Could the application of the provisions of the Law No. 1798 lead to a violation of the principle of judicial independence enshrined in Article 126 of the Constitution of Ukraine?” and other issues.
According to the Judge, as of May 2023, the Constitutional Court of Ukraine had a joint amicus curiae brief from the Venice Commission and the Directorate-General for Human Rights and the Rule of Law (No. 1091/2022 of October 24, 2022), amicus curiae from the Delegation of the European Union to Ukraine, the Embassies of the United States, Great Britain, and Canada in Ukraine, the American Chamber of Commerce in Ukraine, non-governmental organisation “DEURE Foundation”, etc.
At the plenary session, the Court heard arguments of the participants of the constitutional proceedings, namely: Rasim Babanly, the representative of the subject of the right to constitutional petition, the Head of the Department of Analytical and Legal Work of the Supreme Court, Maksym Dyrdin, the Permanent Representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine, and Serhii Dembovskyi, the representative of the President of Ukraine in the Constitutional Court of Ukraine.
The involved participants in the constitutional proceedings, Mykhailo Shumylo, representative of the High Council of Justice, Head of the Legal Department of the High Council of Justice Secretariat, Yuliia Kyrychenko, representative of the Center for Political and Legal Reforms, Stepan Berko, representative of the non-governmental organization “DEURE Foundation”, Bohdan Monich, Chairman of the Council of Judges of Ukraine and Serhii Riznyk, Doctor of Law, Professor, Vice-Rector for Scientific and Pedagogical Work and International Cooperation of Ivan Franko National University of Lviv, also presented their positions.
The Court will proceed with the consideration of this case at one of the forthcoming plenary sessions.
The public part of the plenary session is available on the Court's official website under the heading “Archive of video broadcasts of the sessions”.
For reference.
According to the impugned provision of the Law No. 1798, “in case of equal number of votes for and against during the re-voting, the votes of the members of the Ethics Council, including at least two proposed by international and foreign organisations, shall be decisive”.
The Law No. 1635 stipulates the following:
- within six months from the date of approval of its personal composition, the Ethics Council shall once assess the compliance of the members of the High Council of Justice (except for the Chief Justice of the Supreme Court) elected (appointed) to the position of a member of the High Council of Justice before the entry into force of this Law with the criteria of professional ethics and integrity for holding the position of a member of the High Council of Justice (paragraph 4.1 of Section II “Final and Transitional Provisions”);
- from the date of the Ethics Council’s decision, the member of the High Council of Justice in respect of whom such a decision was made shall be dismissed from office, and his/her powers shall be suspended until the decision is made by the body that elected (appointed) this member of the High Council of Justice (paragraph 4.6 Section II “Final and Transitional Provisions”);
- in case the body that elected (appointed) a member of the High Council of Justice has not made a decision to dismiss a member of the High Council of Justice from office or to reject the recommendation of the Ethics Council to dismiss a member of the High Council of Justice within the period established by sub-paragraph seven of the present paragraph, at the expiration of the said period such a member of the High Council of Justice shall be deemed to be dismissed from office in accordance with the law (paragraph 4.11 of Section II “Final and Transitional Provisions”).
