November 30, the Constitutional Court of Ukraine, during its session, adopted a ruling on taking the oath by the judges of the Constitutional Court of Ukraine appointed by the President of Ukraine by the decrees of 26 November 2021 Nos. 596/202 and 597/2021.
According to Article 148 of the Constitution of Ukraine, the Constitutional Court of Ukraine is composed of eighteen judges of the Constitutional Court of Ukraine (paragraph one); the President of Ukraine, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine each appoint six judges to the Constitutional Court of Ukraine (paragraph two); a judge of the Constitutional Court of Ukraine is appointed for nine years without the right of reappointment (paragraph six); a judge of the Constitutional Court of Ukraine steps in his or her office as of the date of taking the oath at the special plenary sitting of the Court (paragraph seven).
During 2013–2018, the President of Ukraine appointed six judges of the Constitutional Court of Ukraine, whose authority have not been terminated and who are not dismissed from office based on the grounds set out in Article 1491 of the Constitution of Ukraine.
The President of Ukraine by the Decrees of 26 November 2021 Nos. 596/2021 and 597/2021 appointed two judges of the Constitutional Court of Ukraine.
The Constitutional Court of Ukraine, both when exercising constitutional adjudication and when resolving organisational issues related to its internal activities, is guided by the principle of the rule of law (Article 8.1 of the Constitution of Ukraine), which is, inter alia, that the Constitution of Ukraine has the highest legal force (the first sentence of Article 8.2 of the Constitution of Ukraine), the state power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power (Article 6.1 of the Constitution of Ukraine), and the activities of the Constitutional Court of Ukraine are based, in particular, on the principle of its independence (Article 147.2 of the Constitution of Ukraine).
The Constitution of Ukraine has confirmed the European identity of the Ukrainian people and irreversibility of the European and Euro-Atlantic course of Ukraine.
Ukraine, having ratified the 1950 Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), has recognised the jurisdiction of the European Court of Human Rights (hereinafter – the Strasbourg Court) to be obligatory in all matters related to the interpretation and application of the Convention. In its case-law, the Strasbourg Court has been steadily adhering to the position that the right to fair trial guaranteed by Article 6 obliges the state to organise its judicial system in such a manner that complies with the requirements of this Article also with regard to the issues of the internal organisation of courts. In a number of its judgments the Strasbourg Court noted that the constitutional courts fall under the notion “the tribunal established by law“, contained in Article 6 of the Convention.
Apart from that, the Strasbourg Court found that within the scope of Article 6 of the Convention, such conventional requirement as “tribunal established by law“, relates to the procedure of appointment of judges. For instance, when evaluating, whether there had been a violation of the right to fair trial guaranteed by Article 6 of the Convention, the Strasbourg Court determined that legal assessment of appointment of judges is an integral component of the conclusion whether the court was “established by law“. The Strasbourg Court, in its judgment Xero Flor v. Poland of 7 May 2021 (application No. 4907/18), in substantiating the issue of judicial appointments indicated, “As regards the phrase “established”, the Court referred to the purpose of that requirement, which was to protect the judiciary against unlawful external influence, in particular from the executive, but also from the legislature or from within the judiciary itself. In this connection, the Court found that the process of appointing judges necessarily constituted an inherent element of the concept “established by law” <…>” (§ 245).
Thus, in order that the procedure for appointing judges of the Constitutional Court of Ukraine and acquiring the authority by them will conform to the requirements of the European standards, established by the Strasbourg Court, the norms of the Constitution of Ukraine which guarantee the rule of law in Ukraine and the separation of power must be necessarily observed so that the composition of the Constitutional Court of Ukraine included judges appointed in the manner which complies with the notion the “tribunal established by law“ within the understanding of Article 6 of the Convention.
Given the above and guided by Articles 6, 8, 147, 148, 1491, 153 of the Constitution of Ukraine, based on Articles 3, 39, 83 of the Law of Ukraine “On the Constitutional Court of Ukraine“, pursuant to § 27 of the Rules of Procedure Constitutional Court of Ukraine, the Constitutional Court of Ukraine held: “The Chairperson of the Constitutional Court of Ukraine or a judge of the Constitutional Court of Ukraine performing his duties should call special plenary sessions of the Constitutional Court of Ukraine for taking the oath by the judges of Constitutional Court of Ukraine appointed by the President of Ukraine by the decrees of 26 November 2021 Nos. 596/2021 and 597/2021, after termination of powers or dismissal from office on the grounds stipulates in Article 1491 of the Constitution of Ukraine of the judges of the Constitutional Court of Ukraine appointed by the President of Ukraine during 2013-2018.
