DRI Legal News | Issue 5, by Anton Lovin (DRI Senior Legal Expert, Kyiv), Mykola Gnatovsky(DRI Senior Legal Expert, Kyiv), Ruslana Vovk ( DRI Regional Manager, Berlin)
The Constitutional Court of Ukraine has played a major and often problematic role in shaping the Ukrainian state since its establishment in 1996. Since the ‘Revolution of Dignity’ in 2014 the Court has undergone serious transformations both of its composition and, since 2016, of its legal foundations and functions.
After one year of inactivity, the Court, with its new composition and powers, resumed full operations in the beginning of 2018. The record of this “new” Court is an important indicator whether Ukraine’s reforms bear fruit in terms of creating a stronger rule of law and justice sector.
Assessing the first six decisions on various laws (concerning social laws, language policy and referendum rules and two opinions on parliamentary immunity), the record appears to be mixed. On the one hand, the Court furthered democratic guarantees when it declared that the referendum law was unconstitutional – its provision appeared to allow a referendum on a completely new constitution without regard to the current one. Also, by annulling laws because they were based on a faulty parliamentary procedure, it served notice to Parliament to end some of its questionable debate and voting practices. The active use of dissenting opinions by its judges may be beneficial for a less formalistic legal debate and a sense of pluralism within the Court.
On the other hand, the Court’s rulings appeared to lack some coherence in terms of referring to its previous conclusions or addressing the merits of the case. Furthermore, the quality of legal reasoning does not seem to differ much from previous practice and could improve. Likewise, the Court should conduct more active public communication, for example by explaining decisions in simple language in press releases to inform the wider public.
For Ukraine’s democracy, a new type of cases will be important: The constitutional changes now allow ordinary citizens to lodge complaints against violations of their constitutional rights. The Court already received 829 of such complaints but have not yet started resolving them.
The remaking of the Court
On many occasions in Ukraine’s history, the Constitutional Court has played a pivotal role. Its major task was to verify the constitutionality of (draft) laws, including those aimed at changing the Constitution. Thus, the Court bore great responsibility for the proper functioning of Ukraine’s democracy. At the same time however, the Court appeared to lack independence and often seemed to be a mere pawn in the power games of Ukraine’s politicians.
Its lowest point was reached when former president Viktor Yanukovych instrumentalised the Court by staffing it with many loyal judges. The Court’s September 2010 decision to reverse the Constitutional Reform of 2004 not only marked a complete upheaval of Ukraine’s political system but also demonstrated how low the Court had sunk given the case’s obvious political interest and poor legal reasoning.
After the 2014, politicians and civil society discussed the fate of this body and ways to improve its professionalism and ensure its independence. In the course of the constitutional reform of 2016, which mainly concerned the judiciary, it was decided to keep the Court in place but to modify its functions. While granting it the right to examine violations of the Constitution claimed by individuals (so called individual constitutional complaint), the Court is not competent anymore to interpret the meaning of ordinary laws (statutes) and is limited to interpreting the Constitution only. Most importantly, the constitutional changes established competitive selection for constitutional judges, requiring candidates to show a high level of professionalism and high moral standards. The new Law on the Constitutional Court of July 2017 detailed the judges’ selection procedure and the Court’s new functions.
Some analysts question whether the new selection procedure will actually breathe fresh air into the Court. While it allows each appointing authority – Parliament, President and the Congress of Judges – to have a separate “competition panel,” it lacks minimal requirements for the procedure of these panels, such as obligatory tests and/or interviews with the applicants for judges’ positions. Thus, the selection mechanism leaves space for political influence and makes it difficult to safeguard the Court’s independence.
Since the Ukrainian Parliament took over a year to adopt this law, there were no rules in place for the proper functioning of the Court:
- It was hindered from performing its tasks related to individual constitutional complaints and was only able to register these. Before 2018, the Constitutional Court had received 468 such complaints, while 361 have been accumulated in 2018 so far.
- The Court was missing five judges out of the required eighteen.
Back on track with some new judges
Nevertheless, the Court came back to life at the end of 2017. Three judges were selected under the new requirements and procedure. One judge was appointed by the Congress of Judges in November 2017 and two judges were appointed by the President in March 2018. Two more are to be elected by the Parliament under a selection procedure that was launched in October 2017. At the moment, the Court consists of 16 judges out of the required 18, ten of whom were appointed after the Revolution of Dignity.
After several failures (one caused by a lack of volunteers), the Court’s judges finally appointed their chairperson—Stanislav Shevchuk—on 21 February 2018. Many saw this as very positive sign due to Mr. Shevchuk’s background as a judge in the European Court of Human Rights (in 2009 and 2012) and his work in Ukrainian and international institutions related to democracy, rule of law and European integration. On 22 February, the Court adopted its new Rules of Procedure based on the new law on the Constitutional Court, thus signalling its readiness to resume work after the 2017 interlude.
In the first part of 2018 the Court issued six substantive judgments and two opinions on motions to amend the Constitution of Ukraine. All six judgments, except for the latest one, are supplemented with separate opinions of individual judges. In fact, Justices Ihor Slidenko and Mykola Melnyk wrote such opinions for all judgments. This statistic is not enough to speak about judicial efficiency and should be interpreted with caution.
After a quick glance at the statistics from the years after the Euromaidan these numbers give hope that Court is back on track. Since 1997 and before the Revolution of Dignity, the yield of the Court had fluctuated between nine judgments in 2005 and 38 in 2009. In post-revolution years, the Court has been less prolific—between three judgments in 2017 and eight in 2014. In terms of opinions on suggested constitutional amendments, numbers have been fluctuating between zero and three since 1997.
However, the court now faces a new function: The constitutional reform of 2016 empowered citizens, through constitutional complaints to the CCU, to challenge the constitutionality of laws when such laws have been applied in actual litigation and all other remedies have been exhausted. This is expected to increase the workload of the Court tremendously. It is doubtful that this new function will be counterbalanced by the abolition of the Court’s official interpretative function for Ukraine’s statutes (except for the Constitution). Since 2016, the Court has already accumulated 829 of these complaints and there are reasons to expect a steady increase in their number.
First decisions and opinions
The first decisions of the Constitutional Court dealt with the constitutionality of:
- New regulations on the taxation of pensions and income qualifications for a social security entitlement that could potentially restrict social rights envisaged in the Ukrainian Constitution;
- the Law on the Foundations of State Linguistic Policy of 2012;
- the Law on All-Ukrainian Referendum of 2012;
- the right of officers of Ukraine’s Criminal Executive Service to conduct initial pre-trial investigations on crimes committed in penitentiary institutions, envisaged in the Code of Criminal Procedures; and
- the limitation on welfare payments for persons affected by the Chernobyl nuclear disaster with incomes above the established margin and other similar limitations.
Additionally, two of the Court’s opinions assessed the constitutionality of the suggested amendments to the Constitution regarding parliamentary immunity.
- Decisions on social rights limitations
In its very first judgment of the year, the Court found that the taxation of pensions above a certain established amount (three minimum wages as foreseen by law) was a discrimination based on property status and thus unconstitutional. Further grounds for unconstitutionality included the contradiction of the new taxation regulation with the principle of legal certainty as the amount composed of three minimum wages could vary every year. While the case was about the entire pension system, the Court included considerations on what it meant for the independence of judges, indicating that safe pensions are one element of securing judges’ independence, which could be threatened by legal uncertainty.
The Court did not elaborate much on the grounds of the unconstitutionality. The judges used general references to Ukraine being a social state based on the rule of law but gave no more explanation of what they meant by rule of law or social state and provided no argumentation for why the new taxation contradicts these principles and the anti-discrimination clause. Somewhat surprisingly the Court did not mention Article 22 (III) of the Constitution which explicitly prohibits lowering the scope of existing rights, including social rights, when adopting new statutes. The Court could have built on a rich case-law on this article.
The second case on social rights was decided by the Court in May of this year. The impugned law established an income qualification for a social security entitlement, including some medical, transportation, telecommunications and utilities privileges for people with special merits to the country, and limited rights for early retirement. The Court took a nuanced approach to the issue. On the one hand, it clarified that merit-based personal benefits for some individuals or groups are not necessarily connected with the essence of constitutional freedoms and rights. As such, they might be circumscribed, even abolished, if need be. On the other hand, the right to early retirement was of the sort securing a very essential social protection and was thus connected to the key constitutional rights.
The Court ruled that the abolishment or limitation of the right by a statute violated the Constitution. Again here, the judges abstained from applying Article 22 (III) of the Constitution and mentioned the provision only en passant and not as a decisive argument. Taking into account that the legislative provisions under scrutiny were introduced on a very short notice, the Court instead preferred to ground the unconstitutionality on the wide principle of legal certainty deduced from the rule of law enshrined in Article 8 of Ukraine’s Constitution.
The latest judgment this year—of 17 July—was also concerned with social security. The legislative act at issue purported to introduce a number of limitations on social security entitlements for persons affected by the Chernobyl nuclear disaster of 1986. Some limitations consisted of connecting the entitlement to the level of family income of persons concerned, requiring selection between alternative social security plans, etc. The Court found these curtailments unconstitutional, this time on a completely different legal basis—Article 16 of the Constitution: “Ecological safety and balance in Ukraine’s territory, countering the consequences of the Chernobyl disaster—a disaster of planetary scale—securing the gene pool of the Ukrainian people shall be the concern of the state.” The Court interpreted social security for victims of the Chernobyl accident as a way of practical implementation of the article. The Court arrived at the conclusion that, on the one hand, all social security measures for such affected persons shall secure their decent living and, therefore, should not depend on the level of their income and, on the other hand, such rights, entitlements, privileges, etc., may not be abolished or limited without some equivalent (or better) substitution.
Being reluctant to revert to its case-law on Article 22 (III) in the above-mentioned decisions, the Court might be thinking of revising its previous diffuse interpretation of the protection of social rights by the Constitution. However, the loose linkage between the rule of law and social rights that the Court provided instead operates as an inadequate replacement and does not compensate for this possible good intention.
- Decision on the Law on the Foundations of State Linguistic Policy
The most controversial (judged by the number of appended separate opinions, 11 out of the current 16 judges) decision was that of February in which the Court annulled the Law on the Foundations of State Linguistic Policy. The disputed piece of legislation was challenged with both procedural and substantive arguments. The heaviest procedural argument was the discrepancy between the number of votes for the adoption of the law and the number of deputies actually present in parliament during the respective voting. A lot of evidence proved this discrepancy, including the video record of the session which was all acknowledged and considered by the Court.
While reminding that Article 84 (III) of the Constitution requires personal voting from deputies, the Court stated in abstracto that “delegated voting” (meaning non-personal voting) is unconstitutional. However, it abstained from stating clearly that this main fault of the legislative procedure made the law invalid. Instead, it simply enumerated violations of the procedure and summarised that during the relevant session the violations (such as lack of discussion, improper inclusion on the agenda) had been “systematic and [had] essentially influenced the outcome of adoption.”
It may be conjectured that the Court considered annulling a law for the “delegated voting” as too radical a step, opening the door for undermining the constitutionality of whole swathes of Ukrainian legislation due to the ubiquity of this breach. Even by reasoning the unconstitutionality through a number of procedural mistakes other than “delegated voting,” the Court still risks threatening a large amount of Ukraine’s legislation, as acknowledged by Judge Serhii Sas in his separate opinion. The procedural problems on which the Court’s decision is based has occurred often in Ukraine’s legislative process. However, this risk can only materialise on a case-by-case basis where each and every law adopted in a faulty procedure is challenged in the CCU.
Declaring the law annulled on procedural grounds, the Court did not address substantive arguments of the law. Thus, its position on issues of minority languages remains open.
- Decision on the Law on All-Ukrainian Referendum
The Court made a long-awaited decision on the Law on All-Ukrainian Referendum, concluding that it is unconstitutional and therefore void. Analysing the evidence, the Court concluded that the adoption of the Law had been conducted in a faulty way, “delegated voting” again being an issue. However, unlike in the judgment on language policy, the Court did not only address the procedure of law-making but also dealt with the case’s merits. As explained already in DRI paper 83, the law was controversial because it opened the door for adopting a completely new Constitution by a nation-wide referendum without using the amendment procedure of the current constitution. Such a provision was rightly seen as a major risk for upsetting the constitutional order (not to forget that such a course of action already upset the country’s stability in 2000). The Court found this provision unconstitutional and thereby ended the discussions about launching a national referendum on a new constitution.
- Decision on pre-trial investigation rights of Criminal Executive Officers
In this case initiated by Ukraine’s Ombudsman, the Court found the authority of officers of Ukraine’s Criminal Executive Service (subordinate to the Ministry of Justice) to conduct initial pre-trial investigations on crimes committed in penitentiary institutions to be unconstitutional. The Court quotes from various decisions of the European Court of Human Rights (ECHR) to find that that officers of the Criminal Executive Service working with inmates should not launch pre-trial investigation as they are not likely to incriminate themselves or their colleagues.
The Court’s reasoning is plausible, although it is surprising that it based the case on Article 3 (the superior value of human beings, their rights and freedoms), two paragraphs of Article 27 (guaranteeing the right to life) and two paragraphs of Article 28 (one securing respect for human dignity, the other prohibiting torture and similar degrading treatment), rather than the constitutional right to a fair trial. The Court did not further explain on what grounds it refered to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the ECHR as prevailing guidelines to interpret the constitutional provisions. Judge Mykola Melnyk in his dissenting separate opinion noted the trend of the Constitutional Court becoming “a sui generis subsidiary to the ECHR” instead genuinely interpret the Ukrainian Constitution has already gone some way.
- Opinions on draft constitutional amendments
In the two opinions this year, the Court approved two proposed draft amendments to the Constitution in order to abolish the immunity of members of Ukraine’s Parliament (MPs) against criminal prosecution. Currently, Ukrainian MPs can be neither prosecuted nor detained or arrested unless the Parliament approves.
The abolishment of the immunity was unlikely to raise any flags regarding the criteria for mandatory check of all suggested constitutional amendments. The suggested changes are however controversial as the complete removal of inviolability of MPs is not recommended in the currently fragile state of the rule of law in Ukraine, as concluded in DRI’s Briefing Paper No. 57. If adopted, the amendments would mark an important and ground-breaking development. The Court’s positive assessments of the draft amendments gave a green light for Parliament to consider further and vote on the abolishment of parliamentary immunity. The Parliament has not managed to include the issue into its agenda before the summer holidays, which last until 3 September 2018.
The first decisions and opinions of the Constitutional Court are overall encouraging, having strengthened democracy on some accounts, such as closing the possibility of a referendum to upset the constitutional order. The references to ECHR case law are positive though Ukrainian lawyers will expect more genuine interpretation of the Ukrainian Constitution.
In terms of quality and clarity of argument the Court could improve and overcome its legacy of formalistic and stiff citing of well-known generalities as opposed to a genuine assessment of a specific case.
Additionally, the Court has not improved communicating its decisions to the public (e.g., through accessible press-releases). The Court should address this weakness. Democratic institutions need to explain themselves to the broader public to build and maintain their legitimacy and credibility.
 See the Judgment of the Constitutional Court of Ukraine of 30 September 2010 no. 20-рп/2010 in the case of complying with the due procedure for amending the Constitution of Ukraine; available in Ukrainian <http://zakon2.rada.gov.ua/laws/show/v001p710-18> (accessed 12.07.2018).
 See the Law of Ukraine “On amending the Constitution of Ukraine (on justice)” of 2 June 2016 no. 1401-VIII, available in Ukrainian <http://zakon2.rada.gov.ua/laws/show/1401-19> (accessed 15.07.2018).
 The Court issued three judgments in 2017: one in November 2017 and two in December 2017.
 See the list (in Ukrainian) at http://ccu.gov.ua/novyna/konstytuciyni-skargy-shcho-nadiyshly-do-konstytuciynogo-sudu-ukrayiny-za-stanom-na-28-grudnya (accessed 30.07.2018).
 See the list (in Ukrainian) at <http://ccu.gov.ua/novyna/konstytuciyni-skargy-shcho-nadiyshly-do-konstytuciynogo-sudu-ukrayiny-za-stanom-na-30-2> (accessed 31.07.2018).
 After the Revolution of Dignity, Parliament appointed four new judges after dismissing five judges in February 2014 for oath-breaking. See the Resolution of the Verkhovna Rada of Ukraine “On reacting to the facts of oath-breaking by judges of the Constitutional Court of Ukraine” of 24 February 2014 no. 775-VII, available in <Ukrainian http://zakon5.rada.gov.ua/laws/show/775-18> (accessed 30.07.2018).
 See “Constitutional Court of Ukraine elects new Chairman,” 21 February 2018, 16:40, <https://www.unian.info/politics/10015808-constitutional-court-of-ukraine-elects-new-chairman.html> (accessed 31.07.2018).
 See Volodymyr Gontar, “5 Facts about the New Head of the Constitutional Court of Ukraine,” 23 February 2018, 19:15, available in Ukrainian <https://hromadske.ua/posts/5-faktiv-pro-novoho-holovu-konstytutsiinoho-sudu-ukrainy-shevchuka> (accessed 31.07.2018).
 See the Rules of Procedure of the Constitutional Court of Ukraine adopted at a special plenary meeting of the Constitutional Court of Ukraine by Resolution of 22 February 2018 no. 1-пс/2018, available in Ukrainian, <http://www.ccu.gov.ua/sites/default/files/docs/reglament.pdf> (accessed 15.07.2018).
 See the Judgment of the Constitutional Court of Ukraine of 27 February 2018 no. 1-р/2018 in the case on taxing pensions and of perpetual support payable monthly, available in Ukrainian, <http://zakon2.rada.gov.ua/laws/show/v001p710-18> (accessed 15.07.2018).
 See the Law of Ukraine “On amending and annulling certain legislative acts of Ukraine” of 28 December 2014 no. 76-VIII, available in Ukraine, <http://zakon5.rada.gov.ua/laws/show/76-19> (accessed 17.07.2018).
 See the Judgment of the Constitutional Court of Ukraine of 17 July 2018 no. 6-р/2018 in the case initiated by 50…, available in Ukrainian, <http://zakon2.rada.gov.ua/laws/show/v006p710-18> (accessed 01.08.2018).
 See the Judgment of the Constitutional Court of Ukraine of 28 February 2018 no. 2-р/2018 in the case initiated by 57 Members of the Parliament of Ukraine on the constitutionality of the Law of Ukraine “On the foundations of the state linguistic policy,” available in Ukrainian, <http://zakon2.rada.gov.ua/laws/show/v002p710-18> (accessed 01.08.2018).
 See the Law of Ukraine “On the foundations of the state linguistic policy” of 3 July 2012 no. 5029-VI, available in Ukrainian, <http://zakon2.rada.gov.ua/laws/show/5029-17> (accessed 15.07.2018).
 See the Judgment of the Constitutional Court of Ukraine of 7 July 1998 no. 11-рп/98 in the case on the voting procedure and re-debating laws in the Verkhovna Rada of Ukraine, available in Ukrainian, <http://zakon2.rada.gov.ua/laws/show/v011p710-98> (accessed 15.07.2018).
 See the Separate Opinion by Justice S.V.Sas as to the Judgment of the Constitutional Court of Ukraine of 28 February 2018 no. 2-р/2018 in the case initiated by 57 Members of the Parliament of Ukraine on the constitutionality of the Law of Ukraine “On the foundations of the state linguistic policy,” available in Ukrainian, <http://zakon2.rada.gov.ua/laws/show/na02d710-18> (accessed 15.07.2018).
 The case had been in the CCU’s docket since 24 March 2016, see: “Constitutional submissions as of 27 December 2017,” available in Ukrainian, <http://www.ccu.gov.ua/novyna/konstytuciyni-podannya-za-stanom-na-27-grudnya-2017-roku> (accessed 31.07.2018).
 See the Judgment of the Constitutional Court of Ukraine of 26 April 2018 no. 4-р/2018 in the case under the constitutional submission by 57 Members of the Parliament on the constitutionality of the Law of Ukraine “On the nationwide referendum”, <http://zakon5.rada.gov.ua/laws/show/v004p710-18> (accessed 17.07.2018).
 Read more about the legal framework for nationals referendums in Ukraine in DRI’s Briefing Paper no 83 https://democracy-reporting.org/dri_publications/%d0%b7%d0%b2%d1%96%d1%82-83-%d0%bf%d1%80%d0%b0%d0%b2%d0%be%d0%b2%d1%96-%d1%80%d0%b0%d0%bc%d0%ba%d0%b8-%d0%b4%d0%bb%d1%8f-%d0%bd%d0%b0%d1%86%d1%96%d0%be%d0%bd%d0%b0%d0%bb%d1%8c%d0%bd%d0%b8%d1%85/
 See the Judgment of the Constitutional Court of Ukraine of 24 April 2018 no. 3-р/2018 in the case under the constitutional submission by the Verkhovna Rada of Ukraine’s Commissioner for Human Rights on the constitutionality of Article 2016, paragraph 6, of the Code of Criminal Procedure of Ukraine, available in Ukrainian, <http://zakon5.rada.gov.ua/laws/show/v003p710-18> (accessed 17.07.2018).
 See the Separate Opinion by Justice M.I.Melnyk as to the Judgment of the Constitutional Court of Ukraine of 24 April 2018 no. 3-р/2018 in the case under the constitutional submission by the Verkhovna Rada of Ukraine’s Commissioner for Human Rights on the constitutionality of Article 2016, paragraph 6, of the Code of Criminal Procedure of Ukraine, available in Ukrainian, <http://zakon5.rada.gov.ua/laws/show/na03d710-18> (accessed 17.07.2018).
 See the Opinion of the Constitutional Court of Ukraine of 6 June 2018 no. 1-в/2018 initiated by the Verkhovna Rada of Ukraine as to the compliance of motion 6773 to amend the Constitution of Ukraine (abolishing the parliamentary privilege) with Articles 157 and 158 of the Constitution of Ukraine, available in Ukrainian, <http://zakon5.rada.gov.ua/laws/show/v001v710-18>, and Opinion of the Constitutional Court of Ukraine of 19 June 2018 no. 2-в/2018 initiated by the Verkhovna Rada of Ukraine as to the compliance of motion 7203 to amend the Constitution of Ukraine (concerning the parliamentary privilege) with Articles 157 and 158 of the Constitution of Ukraine, available in Ukrainian, <http://zakon5.rada.gov.ua/laws/show/v002v710-18> (both accessed 17.07.2018).
 Article 80 of the Constitution of Ukraine. Available from <http://www.legislationline.org/documents/section/constitutions/country/52> (accessed 17.07.2018). Read more about the reform of parliamentary immunity in DRI’s briefing papers <https://democracy-reporting.org/dri_publications/briefing-paper-57-reforming-parliamentary-immunities-in-ukraine/>
 On the reform of parliamentary immunities in Ukraine read more in DRI’s Briefing Paper no. 57 <https://democracy-reporting.org/dri_publications/briefing-paper-57-reforming-parliamentary-immunities-in-ukraine/> and DRI’s Briefing Paper no. 53 <https://democracy-reporting.org/dri_publications/briefing-paper-53-reforming-parliamentary-immunities-in-ukraine/>