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Strasbourg,
22 June 2006
Opinion no.
377/2006
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CDL-AD(2006)016 Or.
Engl.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
on
possible Constitutional and Legislative
improvements
to
ensure the uninterrupted functioning
of
the consTitutional
court
of
ukraine
on the basis of comments by
Mr A. ENDZINS (Member, Latvia)
Mr J. MAZAK (Member, Slovakia)
Mr P. PACZOLAY (Member, Hungary)
Adopted by the Venice
Commission
at
its 67th Plenary Session
(Venice,
9-10 June 2006)
1. By letter
dated 20 March 2006, the Minister of Justice of Ukraine and member of the Venice Commission, Mr Holovaty, requested the Venice Commission to give an opinion on how the relevant
Ukrainian legislation should be improved to ensure the uninterrupted
functioning of the Constitutional Court of Ukraine.
2. The
Commission appointed Messrs Endzins, Mazak (CDL(2006)044) and Paczolay as rapporteurs on this issue.
This opinion has been adopted by the Venice Commission at its 67th Plenary Session (Venice, 9-10 June 2006).
A. Background
3.
Chapter XII of the Constitution of Ukraine defines the framework for
establishment, structure and activity of the Constitutional
Court. According
to Article 148 of the Constitution, the Constitutional Court is composed
of eighteen judges. The President, the Verkhovna Rada and the Congress
of Judges each appoint (or elect) six judges to the Constitutional
Court. The judges are appointed for a nine year
non-renewable term.
4.
The general principles contained in Chapter XII of the Constitution are
further developed in the law “On the Constitutional Court of Ukraine”, adopted
on 16 October 1996. The
law deals in particular with “the procedure for the organisation and operation
of the Constitutional Court of Ukraine, and the procedure for its review of
cases” (Article 153 of the Constitution). Under the above law a judge of the
Constitutional Court enters office from the date of swearing the judge’s oath,
which he or she takes at a session of the Verkhovna Rada with the
participation of the President, the Prime Minister and the Chairman of the
Supreme Court no later than one month from the date of appointment (Article 17
of the Law).
5. On 18 October 2005, the term of office of ten justices of the
Constitutional Court of Ukraine, including its Chairman, came to an end (the
first nine year appointment of judges of the Constitutional
Court was made in 1996). Another three judges’ posts had
been vacant for some time already.
Given the number of judges remaining in
office (five judges), the Constitutional Court became inoperative, since a quorum of twelve judges
is required for plenary sessions by Article 51 of the Law.
6. In its Resolution 1466 (2005), adopted
already on 5 October 2005, the Parliamentary Assembly of the Council of Europe
(PACE) called upon the Ukrainian
authorities to “ensure that the composition of the Constitutional Court of
Ukraine is renewed without undue delay after the expiry of the term of office
of its justices.”
7.
On 3 November 2005
the Congress of Judges of Ukraine
appointed six judges and on 14 November 2005 the President of
Ukraine appointed three judges respectively to the Constitutional
Court. However,
the Verkhovna Rada seemed to be reluctant both to appoint the
four judges under its own quota and to allow
for the procedure of swearing in to take place. On 15 December 2005 the PACE Monitoring Committee
urged the Verkhovna Rada “to carry out its constitutional duty and renew
the composition of the Constitutional Court of Ukraine without any further
delay.”
8.
In its declaration of 16 December 2005, the Venice
Commission expressed its concern (shared by the Constitutional Court of
Lithuania, holding the Presidency of the Conference of European Constitutional
Courts) over the stalled process of appointment of new judges to the
Constitutional Court of Ukraine and called on “the Ukrainian authorities and
especially the Ukrainian Parliament to quickly take the necessary steps for
renewing the membership of the Constitutional Court of Ukraine.”
9.
The declaration pointed out that “in countries where it has been
established, the constitutional court is an institution of crucial importance
in ensuring the functioning of the various state bodies within constitutional
limits. They have the key function of guaranteeing the respect for fundamental
principles of democracy, the protection of human rights and the rule of law,
which are also the basic standards of the Council of Europe, of which Ukraine
is a member.”
10.
Given its jurisdiction, the
effective and continuous functioning of the 'Guardian of the Constitution' has
paramount importance for the country. According to the Ukrainian
Constitution, the Constitutional Court
decides on issues of the conformity of laws and other legal acts with the
Constitution. The Court’s mandate entails providing an official interpretation
of the Constitution and laws, giving opinions on the constitutionality of
international treaties both already in force and submitted to the Verkhovna
Rada for ratification. The Court’s mandate also includes an opinion on
impeachment of the President.
11.
The constitutional duty to ensure continuity and stability of the
Court’s work lies upon the state authorities involved in the Court’s procedure
of composition. Consequently, respective measures should be taken by them to
restore functioning of “the sole
body of constitutional jurisdiction in Ukraine”
(Article 147 of the Constitution).
B. Possible solutions aimed at improving the
legislation
1. Appointment mechanism
12.
In order to avoid the paralysis in the Constitutional
Court’s activity in case of the constitutionally
empowered authority’s failure to appoint a judge, it seems advisable to
introduce default mechanisms. Several options could be considered in this
respect. When taking into consideration the different options we have to be
aware of the fact that the appointment of the judges of a Constitutional
Court is a matter of great political and
constitutional significance. While the work of constitutional courts must be
independent and free from political influence, one cannot deny that political
factors have a clear say in determining the appointment of constitutional
judges. Even though the deadlock should be resolved as far as possible on the
basis of constitutional tools generally used in other countries, at the same
time some specific, probably temporary, circumstances of the deadlock concerned
have to be taken into account.
13.
A safeguard may be established through a provision allowing a judge to
continue to sit at the Court after his/her term of office has expired until the
judge's successor takes office. Such a mechanism is currently in place for
example in Bulgaria,
Germany, Latvia,
Lithuania, Portugal,
and Spain. Such
a system prevents that a stalemate during the appointment process blocks the
activity of the Court. As this is the case in the countries mentioned, it seems
that in Ukraine
such a solution could be introduced by amendments to the law on the Court. This
will however not be sufficient in case of retirement for health reasons or
death of a judge.
14.
It might also be advisable to provide for a safety measure, ensuring
that the activities for filling the vacancy start well in advance so that the
selection of a candidate is finalised by the time the vacancy occurs. In Romania,
for example, a new judge must be appointed at least a month before the end of
the mandate of the preceding judge. Again, such a provision alone cannot
overcome the refusal of an appointing authority to fulfil its constitutional
duty. In Hungary, where vacancies in the Constitutional Court have created
serious problems several times, according to the Act on the Constitutional
Court a new judge must be elected at least three months before the end of the
mandate of the preceding judge (Article 8.4). Nevertheless, this has happened
very rarely.
15.
Therefore, a more powerful default mechanism would be a
devolution of the powers of appointment to other state authorities (at
least so as to ensure that a sufficient number of judges are appointed to form
a quorum) in case of a continued inaction or failure to appoint judges by an
appointing authority. In the case of Ukraine,
if one of the three appointing authorities (President or the Verkhovna Rada
or the Congress of Judges) did not appoint judges after a certain
deadline, the powers to appoint these judges would devolve to the remaining two
authorities in equal parts. For example, if the Verkhovna Rada does not appoint judges under its
quota within a month after the expiry of the term of the predecessors, the two
other authorities entitled to make appointments (the President and the Congress
of Judges) intervene and each fill half of the vacant positions, if the number
of judges to be appointed is even. In the case of an uneven number of vacant
positions, the authority to appoint one more judge would devolve to the body
for which the last appointment dates back longer. For instance, if three
vacancies need to be filled and the last appointment was made by the President,
then the President and the Congress of Judges of Ukraine would appoint one
judge each, and the third judge would be appointed by the Congress of Judges.
16.
In addition, to ensure that the body or the bodies obtaining the right
to appoint additional judges will comply with their newly obtained competence,
the transfer of appointment powers from one constitutional body to another
might even be accompanied by certain means of pressure. For example, if the Verkhovna
Rada as an originally authorised body that has complied with its duty also
fails to appoint the rest of the judges required, the power of the President of
Ukraine to dissolve the Verkhovna Rada could be introduced (through
appropriate constitutional amendments). However, giving the President that power
could at the same time be regarded as unbalanced, since the Verkhovna Rada
could not be given similar means of pressure on the President in case of the
latter's failure to comply with his or her constitutional obligation. On the
other hand, the Head of State remains accountable for his or her actions and is
bound by the presidential oath. Here, the principle of presumptio
boni viri comes into play. Therefore, it seems possible to rely on this
principle without the necessity to provide for additional constraints on the
President during the process of appointment of constitutional judges.
Administration of the
oath
17.
An effective appointment procedure does not constitute the only
safeguard to avoid the deadlock in the functioning of the Constitutional Court
of Ukraine. Drawbacks related to the mechanism of entry into office could and
did hinder the work of the Court. Therefore, the issue of the administration of
the oath needs to be addressed. The main objective should be ensuring that the
oath is taken in a timely manner and the procedure for swearing in does not
result in formalities possibly jeopardising a judge’s entry into office.
18.
One of the solutions in this respect could be taking the oath in a
written form and submitting it to the President of Ukraine or the Speaker of
the Verkhovna Rada of Ukraine.
19.
Another solution could be providing for an internal mechanism to be
established for swearing in. The option would consist in enabling the newly
appointed judges to be sworn in by the Chairman of the Constitutional
Court. In the case that the Chairman’s authority
has ended, the possibility to be sworn by the Chairman ad interim or
oldest judge in office could be envisaged.
20.
Although the rule of appointment, under which the relevant power is
split between the three branches of power in Ukraine, ensures a balanced
representation of the Constitutional Court, a risk to the stability and
uninterrupted functioning of the Court remains and has already materialised.
The appointment system should therefore provide certain mechanisms to avoid the
probability of stalling (caused by political or technical reasons) the new
appointment after a judge’s term of office expires. However the establishment
of safeguards preventing deadlocks in the appointment procedure alone cannot
lead to the full solution of the problem as long as obstacles
for the judge’s assumption of duties persists.
21.
In order to ensure and safeguard the stable functioning of the
constitutional judiciary the Venice Commission
recommends the adoption of relevant constitutional and legislative amendments
aimed at improvement of the Ukrainian legislation in this respect. In
particular:
(a) by
way of both constitutional and legislative amendments:
·
Creation of a safeguard in the case of the
failure of a constitutionally empowered authority to appoint (or elect) new
judges of the Constitutional Court
by devolving the power of appointment from the original constitutional body to
the remaining ones;
(b) through
legislative changes only:
·
Providing that a judge remains in office until
his or her successor takes office;
·
The simplification of the taking of an oath by
providing for a written form of taking the oath or the introduction of an
internal mechanism for swearing in.
