The idea of restoring the powers of the CC of the HQCJ is contrary to the Constitution – UNBA Committee

Draft law No. 13382 on amendments to improve the procedure for selecting members of the High Council of Justice is contrary to the Constitution, does not improve the procedure, and therefore its inclusion in the agenda of the Verkhovna Rada session is inappropriate.

This conclusion was reached by the UNBA Committee on legislative initiatives on advocacy following an analysis of the proposed amendments to the Law on the Judicial System and Status of Judges.

On June 1, the term of office of the first Competition Commission, formed in accordance with the transitional provisions of the Law, expired. This commission included three representatives proposed by international and foreign organizations. The authors of the initiative consider the purpose of the draft law to be the extension of the commission's mandate in its current composition. The relevant provisions are also contained in the text of the draft law.

In this regard, the UNBA Committee recalled that, in accordance with Part 1 of Article 58 of the Constitution, laws and other normative legal acts do not have retroactive effect, except in cases where they mitigate or abolish the liability of a person. This principle means that a normative act takes effect from the moment it enters into force and ceases to have effect when it expires. Events or facts are governed by the law or normative legal act that was in force at the time they occurred.

The Constitutional Court emphasized that the principle of the non-retroactivity of laws is a guarantee of the legal security of individuals and citizens.

The prohibition of retroactive effect of laws also ensures compliance with the principle of legal certainty. The legislator does not have unlimited powers to independently grant or deny retroactive effect to normative acts, as this undermines trust in the state.

At the same time, the draft does not contain any provisions aimed at improving the competition procedure itself. Its sole purpose is to extend the mandate of the first composition of the Competition Commission with international experts until June 2028, although their term of office has already expired.

Thus, the proposed mechanism directly contradicts Article 58 of the Constitution.

These and other comments were sent to the relevant Committee of the Verkhovna Rada on legal policy. The full text is available at link.

We would like to remind you that the UNBA recently held a round table on «Problematic issues in the formation of the competition commission for the selection of members of the High Council of Justice: challenges or obstruction?». Its participants concluded that the model of the competition commission for the selection of members of the HQCJ, introduced as an anti-crisis measure, has exhausted itself. The inaction of the High Council of Justice in forming a new composition of the commission, the lack of accountability, and the existing signs of political influence indicate that the powers should be transferred directly to the entities responsible for forming the HQCJ as defined by law.