Ukraine's court system: the Constitutional Court
by Roman Woronowycz
Kyiv Press Bureau
Today Ukraine's jurisprudence system is organized into three major courts: the Constitutional Court, which is responsible for issues involving the Constitution; the General Court of Competence, which deals with civil and criminal matters, and at the top of which stands the Supreme Court of Ukraine; and the Court of Specialization (commonly known as the arbitration court), which, basically, handles contractual conflicts and is overseen by the High Court of Arbitration.
This is the second in a series designed to give our readers a closer look at how the three separate courts of Ukraine function. Last week we described the arbitration court system. In this installment we look at the Constitutional Court.
The court consists of 18 judges, 16 of whom already have been appointed. The judges are appointed by various sectors of the Ukrainian government. The president appoints six, the Verkhovna Rada six and the Supreme Court six. Today the court still is awaiting the appointment of the last two judges by the Verkhovna Rada, which has been stalled by political maneuverings.
This edited interview was conducted with Ivan Tymchenko, chairman of the Constitutional Court, who was appointed by President Leonid Kuchma and took his oath on October 18, 1996. The conclusion of the interview will appear next week.
PART I
Q: What are the responsibilities of the Constitutional Court of Ukraine?
A: (Reading from his notes) The Constitutional Court draws conclusions and renders decisions in matters regarding: the constitutional legality of laws and legal acts passed by the Verkhovna Rada, acts of the president, acts of the Cabinet of Ministers and acts of the Verkhovna Rada of the Autonomous Republic of Crimea; on the relationship of the Constitution of Ukraine to international treaties signed by Ukraine or international treaties that are submitted to the Verkhovna Rada for approval; on maintenance of the constitutional process in matters involving the removal of the president of Ukraine from public office in an impeachment process, as delineated in articles 111 and 151 of the Constitution; on the legality of draft laws on changing the Constitution of Ukraine as delineated in its statutes; on the disregard for the Constitution and laws of Ukraine by the Verkhovna Rada of the Autonomous Republic of Crimea in the instance that the Verkhovna Rada of Ukraine begins proceedings to halt the authority of the autonomous republic; on official interpretations of the Constitution and laws of Ukraine.
Its authority does not include questions on the legal aspect of acts of government organs, government organs of Crimea, organs of city government or the competence of judges of the General Court of Competence.
Q: Does the Constitutional Court have the authority to set precedents with its interpretation of the Constitution?
A: We do not, as you know, have the law of precedents. The Constitutional Court by law does not have the right to change its decisions, it can only review a decision if new factors arise that were not known earlier. But if the Constitutional Court receives new applications or proposals based on decisions already rendered then those applications are not accepted. The court does not review cases where the facts are similar to those in past decisions. In this way you might say precedents are used.
But that is not the same type of precedent that exists in, let's say, England.
Q: Please explain how the Constitutional Court of Ukraine differs from the Supreme Court of the United States by its authority and procedures.
A: I will not answer that question right now. At the end of March and the beginning of April, all of our judges will be traveling to the U.S. for two weeks to study the organization, procedures and work of the Supreme Court. Then they will be able to answer this question with more competency.
Right now, I could answer this question only in a general manner based on what I have read. But I would feel better doing so after we travel to the U.S. and learn more. I think that we will borrow much from the practices of the U.S. Supreme Court, especially on how to deal with constitutional questions. We have already developed regulations for the 1997 session, but they can be changed if we learn ways to improve our system.
Q: How will you ensure the independence of the Constitutional Court from influence or pressures from other government bodies - the Verkhovna Rada, the Cabinet of Ministers or the Office of the President - on your rulings?
A: That type of pressure does not yet exist because we have not yet handed down any rulings. That's first. The fact that the executive branch is responsible by law for ensuring the material and financial needs of the Constitutional Court cannot be equated with having influence over it. But influence over the court by the Verkhovna Rada as a body, or the executive body in the form of the Cabinet of Ministers or by the president himself, or by the Supreme Court, as such, will not occur. There will not be pressures or influences from the organs as a whole because I believe that neither the Verkhovna Rada, the Cabinet of Ministers or the president will accept a decision [by the other government bodies] that would influence specific decisions of the Constitutional Court.
However, there is another matter. We cannot exclude the possibility that, for example, a deputy or an official within the Cabinet of Ministers or a member of the Cabinet may individually attempt to exert pressure or influence a specific ruling. But the judges that are part of the court are highly qualified, and I do not think that these judges will buckle and render decisions on an unprofessional level. If they do give in, they will be discrediting themselves.
The renderings of the Constitutional Court are broad- ranging and therefore are read by a wide array of people. Common people will read the decisions, officials in government structures, experts in various fields of the law. And, because each Constitutional Court judge must vote for or against a case - he does not have the right to abstain - the stand of each judge will be known.
And each judge's opinion will also be public, because each one has the ability to write a commentary regarding the rendering. Legal experts will be able to analyze and grade the rationales for the rulings. I do not think a judge will work unprofessionally in favor of his personal interests. Since he knows his work will be reviewed by experts, he will not want to discredit himself.
As far as judicial commentary, by law the judges have no right to discuss the cases that are before them from the time the application is placed on their desk. For example, I already had received the documents on the appeal to the Constitutional Court against the liquidation of the Communist Party when [Petro] Symonenko and [Vasyl] Kriuchkov visited me to discuss the case. I told them that because I had received the documents on the case I was not at liberty to discuss it with them. I invited them to visit me after the case was decided. Judges are allowed to discuss the cases only after decisions have been rendered.
Q: Are the judges of the Constitutional Court appointed for life? What is their term of office?
A: By the Constitution, a judge's term of office is nine years. He can work until he is 65 years old. If a judge is appointed at the age of 60, although he has a nine-year term, he will only be able to work for five years, until his retirement at age 65.
The chairman of the Constitutional Court is elected by his fellow judges for a three-year term, and cannot be re-elected. The deputy chairmen are also elected for three-year terms. On October 18, 1996, the judges took the oath of office before a session of the Verkhovna Rada. We began our official work that day.
We gathered for a special plenary session of the Constitutional Court. The head of that plenary session was the oldest of the judges, who turned out to be Petro Martynenko. We nominated three people for the post of chairman. The nominees were myself, Mykola Koziubra and Vitalii Rozenko, I believe. We voted by secret ballot, and I received the most votes. By the law I needed 10 votes but received 11.
I recommended the candidates for the positions of deputies and they also were elected by secret ballot.
I just thought I should make something clear here: the chairman serves his three-year term as part of his nine-year term as a judge on the Constitutional Court.
Another important matter. The court is divided into three judicial collegiums, which is delineated by the law on the Constitutional Court. One collegium of six judges will handle submissions by citizens for review; a second collegium will handle petitions by government bodies for review; and the third collegium will handle a mix of both submissions and petitions.
The chairman and the deputy chairmen are part of the collegiums, not as chairman and deputies, but as equal members of the court. There I sit as a judge, and the collegium is run by the secretary. In this way it is a democratic structure.
Q: If a judge dies, what is the procedure for filling his seat?
A: If a judge dies, if he loses his citizenship, if he resigns, his vacated position is filled by that government body that appointed him. That is, if he was one of six appointed by the president, then the president appoints his successor, if it was the Supreme Court then they do so, if the Verkhovna Rada ... and so on.
Copyright © The Ukrainian Weekly, February 23, 1997, No. 8, Vol. LXV
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