April 24, 2024
On April 24, 2024, the Second Senate of the Constitutional Court of Ukraine commenced consideration of the case upon the constitutional complaint of Larysa Holnyk at the public part of the plenary session in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Oleh Pervomaiskyi, outlined the main content of the constitutional complaint and the applicant's arguments.
In particular, the judge noted that the subject of the right to a constitutional complaint filed a petition with the Constitutional Court of Ukraine to verify the compliance of Article 22.4, paragraph 3 of Section VII “Transitional Provisions” of the Code of Administrative Procedure of Ukraine (hereinafter - the Code), paragraph 5 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” No. 1635-IX (the “Law”) with Article 8.1, 55.1, 55.2 of the Constitution of Ukraine.
In accordance with the disputed provisions of Article 22.4 of the Code, the Supreme Court as a court of first instance has jurisdiction over cases, in particular, regarding appeals against decisions, actions or inaction of bodies that elect (appoint), dismiss members of the High Council of Justice, and regarding the election (appointment) of members of the High Council of Justice.
According to paragraph 3 of Section VII “Transitional Provisions” of the Code, the Supreme Court as a court of first instance is jurisdictional over cases concerning decisions, actions or inaction of bodies that evaluate members of the High Council of Justice in accordance with the Law.
Paragraph 5 of Section II “Final and Transitional Provisions” of the Law provides that “all cases related to appealing against decisions, actions or inaction of bodies that elect (appoint), evaluate members of the High Council of Justice, regarding the election (appointment), evaluation of members of the High Council of Justice are under the jurisdiction of the Supreme Court as a court of first instance and the Grand Chamber of the Supreme Court as a court of appeal”.
In the constitutional complaint, the author of the petition argues that the restriction of the right to appeal in court against the decision of the Ethics Council on the non-compliance of a candidate for the position of a member of the High Council of Justice with the criteria of professional ethics and integrity established by the disputed provisions of the Code and the Law is not aimed at achieving a legitimate goal and is also disproportionate, since there were ways to achieve the stated goal with less stringent restrictions; therefore, these provisions contradict Article 55.1, 55.2 of the Constitution of Ukraine.
According to the judge-rapporteur, the content of the constitutional complaint and the materials attached to it shows that the applicant is a judge who in 2021 took part in the competition for the position of a member of the High Council of Justice. In its decision, the Ethics Council recognised Larysa Holnyk as not meeting the criteria of professional ethics and integrity to hold this position.
In 2022, the applicant filed a lawsuit against the Ethics Council with the Administrative Court of Cassation of the Supreme Court as a court of first instance, in which she requested that this decision be declared unlawful and cancelled, and that the defendant be obliged to reconsider it.
As a result of the courts' consideration of Larysa Holnyk's claim, the Grand Chamber of the Supreme Court concluded that “a dispute with the Ethics Council regarding the appeal of its decisions, actions or inaction (except for the assessment of HCJ members), in particular, the appeal of the conclusion on the compliance of a candidate for the position of HCJ member with the criteria of professional ethics and integrity, as well as the list of candidates recommended for election to this position, does not fall within the jurisdiction of the courts of Ukraine (including it should not be considered under the rules of administrative proceedings), and the Ethics Council in such legal relations is not a subject of authority that may be a defendant.” At the same time, according to the Supreme Court, the subject matter jurisdiction of administrative courts includes disputes over appeals against decisions, actions or inaction of the Ethics Council in connection with its assessment of members of the High Council of Justice, as defined by paragraph 3 of Section VII “Transitional Provisions” of the Code and paragraph 5 of Section II “Final and Transitional Provisions” of the Law.
The judge-rapporteur also informed that in order to ensure a full and objective consideration of the case and to ensure that the Court makes a reasoned decision, he sent inquiries to a number of bodies of state power and academic institutions with a request to express their positions on the issues raised in the constitutional complaint.
After examining the case file in the public part of the plenary session, the Second Senate proceeded to the in-camera part of the plenary session.
The video recording of the plenary session is available on the official website of the Constitutional Court of Ukraine in the Section “Archive of video broadcasts of the sessions”.
