The procedure to select Judges of the Constitutional Court of Ukraine has recently been reformed.

The purpose of this article is to briefly describe the system of appointment/election of the Judges of the Corte costituzionale (the Italian Constitutional Court), first; but also to enrich existing studies by offering some recommendations for Ukraine. Notwithstanding the recent reform, some issues are still there, even at the level of the Ukrainian Constitution. The Italian system of appointment/election of the Judges of the Constitutional Court is rather similar to that of Ukraine (both being a hybrid system: one third of the Judges are appointed by the President of the Republic; one third are elected by Parliament; one third are in some way elected by the Judiciary). However, in Italy there is no procedure of competitive selection of candidates for the position of Judges, like that established in Ukraine: practices in Italy in this field are mainly regulated by conventions.

Methodologically speaking, the recommendations for Ukraine will be given here in the light of the best practices (according to the principles of constitutionalism) that have been experienced in Italy for the last seven decades but also in the light of the principles of the European Commission for Democracy through Law of the Council of Europe (Venice Commission).

The recommendations for Ukraine will be as follows: (i) the current hybrid system of appointment/election of Judges and the current procedure of competitive selection should be kept; (ii) the current countersignature (by the Prime Minister) of the presidential act of appointment of Judges should be kept; (iii) a qualified majority and a secret ballot (without discussion) for the election of Judges by Parliament should be introduced in the Constitution; (iv) provisions concerning the extension of the term of the office of Judges should be introduced in the Constitution; (v) the procedure of appointment/election should be set out more in detail in the Constitution (or at least in the implementing legislation), when it comes to the requisites to be appointed/elected as Judge.

Such recommendations could help Ukraine to establish a system of appointment/ election of Judges of the Constitutional Court that would be in compliance with the principles of European constitutionalism and of the Venice Commission (and also to fulfil indirectly some commitments that have been required by the European Commission to grant Ukraine EU candidate status).

Bibliography

Authored books

1. Barsotti V, Carozza P G, Cartabia M, Simoncini A, Italian Constitutional Justice in Global Context (OUP 2015) (in English).

2. de Visser M, Constitutional Review in Europe. A Comparative Analysis (Hart Publishing 2014) (in English).

3. Malfatti E, Panizza S, Romboli R, Giustizia costituzionale (Giappichelli 2021) (in Italian). 4. Stone Sweet A, Governing with Judges. Constitutional Politics in Europe (OUP 2000) (in English).

Edited books

5. Brzozowski W, ‘Can the Constitutional Court Accelerate Democratic Backsliding? Lessons from the Polish Experience’ in Belov M (ed), The Role of Courts in Contemporary Legal Orders (Eleven International Publishing 2019) (in English).

6. Delledonne G, ‘Appointing and Electing Constitutional judges: An Evolving Comparative Landscape’ in Belov M (ed), The Role of Courts in Contemporary Legal Orders (Eleven International Publishing 2019) (in English).

7. Uitz R, ‘Judicial Appointments to Supreme Courts and Constitutional Courts: What Do We See and What Are We Fated to Miss?’ in Uitz R (ed), Arguments that Work: Strategies, Contexts and Limits in Constitutional Litigation (Eleven International Publishing 2013) (in English).

Journal articles

8. Cartabia M, ‘Of Bridges and Walls: the “Italian Style” of Constitutional Adjudication’ (2016) 8 The Italian Journal of Public Law, 37 (in English).

9. Kovács K, Tóth G A, ‘Hungary’s Constitutional Transformation’ (2011) 7 European Constitutional Law Review, 183 (in English).

10. Marković Ð, ‘Procedures and Conditions for the Selection of the Constitutional Court Judges in the Post-Yugoslav States’ (2019) 67 Anali Pravnog fakulteta u Beogradu 267 (in English).

Websites

11. Panasyuk S, ‘Why the selection process for judges of Ukraine’s Constitutional Court may become a stumbling block for EU membership’ (IACL-AIDC blog, 23.02.2023) <https://blog-iacl-aidc.org/2023-posts/2023/2/23/why-the-selection-process-for-judgesofukraines-constitutional-court-may-become-a-stumbling-block-for-eu-membership> (accessed: 10.05.2023) (in English).

12. Zhernakov M, Berko S, Chyzhyk H, Butko K, ‘Ukrainian Players Aim to Control Constitutional Court, Forcing Europe to Greenlight It’ (European Pravda, 24.04.2023) <https://www.eurointegration.com.ua/eng/articles/2023/04/24/7160397> (accessed: 10.05.2023) (in English).