Ukraine and the Rule of Law
Viktoriia Lapa
October 24, 2023

"The rule of law and fundamental rights will always be the foundation of our union — in current and in future member states." – Ursula Von der Leyen

Ukraine's progress towards integration with the EU is unmistakably steady, if gradual. On the 17th of June 2022, the European Commission issued an Opinion on Ukraine's application for membership in the European Union, outlining seven steps that Ukraine needed to take. Subsequently, on the 23rd of June 2022, the European Council granted candidate status to Ukraine, while attaching the conditions specified in the Commission's Opinion. This blog post will examine one of the conditions related to the rule of law, in particular, it will focus on specific aspects of the Constitutional Court's reform and emphasize the need for a firm stance from European institutions regarding their actions.

To begin with, among the seven steps that Ukraine is required to implement, the rule of law requirements take center stage. For instance, the first step pertains to the selection of judges for the Constitutional Court, which includes a pre-selection process based on the evaluation of their integrity and professional skills, in accordance with Venice Commission recommendations. The crisis within the Constitutional Court had been brewing for a couple of years prior to Ukraine's application to join the European Union. It is not surprising that this step received the lowest grade (6 out of 10) in the assessment report conducted by the Group of Experts in September 2023.

First and foremost, it is necessary to briefly revisit the Constitutional Court crisis in Ukraine. As a reminder, on October 27, 2020, the Ukrainian Constitutional Court declared that the key elements of Ukraine's anti-corruption legislation, notably the electronic asset declaration system for officials, were unconstitutional. This decision created chaos within the system and elicited a strong response from the President, who introduced legislation calling for the early termination of all Constitutional Court judges and later suspended some judges from their positions through his decree. The Constitutional Court crisis persisted until the Russian invasion of Ukraine on February 24, 2022, making this issue a significant factor in Ukraine's accession requirements.

In particular, one of the elements of crisis pertains to the political loyalty of judges of the Constitutional Court. Ukrainian Constitutional Court is composed of 18 judges (The President of Ukraine, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine appoint six judges of the Constitutional Court of Ukraine each). Currently, as of 18th of October 2023, 5 seats in the CCU remain vacant, namely: 3 under the quota of the Verkhovna Rada and 2 from the Congress of Judges.

From the side of Europe, the Venice Commission has been actively engaged in evaluating Ukrainian legislation related to the Constitutional Court crisis. Specifically, on December 11, 2020, the Venice Commission issued an urgent opinion regarding the reform of the Constitutional Court. The Commission stressed that previous high-profile rulings had been influenced by the judges' political affiliations and proposed a solution involving the implementation of an impartial selection process. To achieve this objective, they recommended the establishment of a politically independent commission composed of international experts and representatives from the public, Advisory Group of Experts (AGE).

The group will consist of 6 experts: one member proposed by each of the three appointing bodies (the President, the Parliament, and the Congress of Judges), one member - by the Venice Commission and two members by the international organisation following the list provided by the Ministry of Foreign Affairs. The AGE will furnish the appointing body with a list of vetted candidates, along with its evaluation of their moral attributes, encompassing integrity, as well as their professional competency, which ranges from unsuitable to suitable to highly suitable. The composition of the commission has become one point of contention discussed in the opinions of the Venice Commission.

The Commission's Opinion of November 2022 mentioned that the proposed composition (six members) of the AGE could be approved "given the current circumstances" in which it is difficult to propose another body to delegate members of the AGE (paragraph 38). This passage has been criticized by the Ukrainian NGO DeJure. In its later Opinion, the Venice Commission specified that, "as long as the AGE will be operating with international members, the number of AGE members should be increased to seven in order to prevent a stalemate in the decisions. The seventh member should be on the international quota." However, on January 25, 2023, departing from the Commission's plenary decision, its President, Claire Bazy-Malaurie, wrote a letter to the head of the Verkhovna Rada, Ruslan Stefanchuk, in which she mentioned that having seven members is desirable, but a six-member model is also possible.

This step and certain other aspects of the Venice Commission's Opinions were criticized by the representatives of the Ukrainian NGOs claiming that "…the EU, motivating the change of its position, says that their Ukrainian counterparts ... react "very emotionally" to any discussion about the seventh member." In one of the articles co-authored by the Ukrainian NGOs published by Politico they stressed on the fact that "If Europe truly wants to assist Ukraine in these difficult times, it's crucially important that the bloc doesn't back down from the principles it is built on — and that it strengthens them". In other words, the EU institutions should play a crucial role in pushing Ukraine to reform even though it might seem a tough job in time of war.

Recently, it appears that there is a glimmer of hope amid the gloom and doom. On the 27th of July 2023, the Ukrainian Parliament adopted Draft Law No. 9322 of 25 May 2023, concerning the selection procedure of Constitutional Court judges. This law might signal possible progress in the appointment of judges, even though through a 6-member AGE commission. In June 2023 and October 2023, the Venice Commission adopted its follow-up opinions, concluding with satisfaction that the key recommendations it had formulated in its previous opinions on Draft Law No. 9322 of 25 May 2023, regarding the selection procedure of Constitutional Court judges, have been followed in the law adopted by the Ukrainian Parliament on 27 July 2023. As of now, the selection process has been initiated by the Parliament, which published an announcement of the start of competitive selection of candidates for three vacant positions of judges on the Constitutional Court of Ukraine.

As for the composition of the AGE, only one candidate is absent within the President of Ukraine's quota, while representatives from international organizations, the Congress of Judges, and Parliament have already been appointed.

In late September, Bloomberg reported that the EU Commission is preparing to recommend Ukraine for membership talks in October. If there is a positive progress report, the EU will initiate negotiation talks in December. Meanwhile, the European Union and other European institutions should insist on progress concerning the rule of law requirements and maintain its stance. There is always a risk that Ukrainian authorities might exploit the 'current circumstances' to retain political control over vital rule of law institutions, such as the Constitutional Court. Therefore, European institutions should consider Ukrainian rule of law standards as a two-way street and aid Ukraine in adopting robust rule of law standards. There is always hope that even in the midst of the war waged by Russia, Ukraine can demonstrate its resilience, not just on the frontline, but also in the battle for the rule of law.