“Members of Parliament should realize that the Constitutional Court protects the Constitution,” Stanislav Shevchuk

3.10.2018 |
Head of the Court Stanislav Shevchuk spoke to “YG” about the judicial reform, judges’ responsibility, political neutrality, judicial activism and reconsidering the role of the Constitutional Court of Ukraine (the CCU).

Original in Ukrainian: Yurydychna Gazeta

Interview by Yegor Zheltukhin, chief editor

– Mr. Stanislav, is the CCU more about law or politics?

– The task of the Constitutional Court is to guarantee the rule of law in the legal system of the state. I will remind that this is the act of supreme legal power. Simultaneously, almost all issues that the CCU examines are of public interest. That is, they influence the foundation of norms and regulations of public relations (especially in the context of a recently introduced constitutional complaint). An individual, addressing to us, complains about the law. Of course, it is entirely logical that when we pass on a decision on unconstitutionality of laws, it will have an enormous political effect. However, we can act only within legal framework. Anyway, we are a court, so we are to adhere to certain criteria, defined by the Constitution and a relevant law.

– What should be the role of the CCU within the judicial reform? Are these changes taken place in practice?

– The Judicial reform brought up a lot of important things. First, in order to become a judge of the CCU, it is necessary to partake in a competition. This is an important element of judicial independence, as the public will know who will be in the staff of the commission for the competition and who are the candidates. Thus, the public can have their own idea before the decision of the commission, about who the candidate is, so that there is no “pig in a poke”, so that the persons who have no understanding of the constitutional law and whose respect among public and academic circles is getting close to zero, will not end up working in the court. Furthermore, when the competition commission forms a list of individuals to get a position, the individual to be appointed makes a choice. As a recent competition showed (according to the presidential quota), the Head of State chose two out of six contenders. This is also an important idea.

Secondly, the wording like the dismissal of a judge from the CCU "for the violation of oath" was removed from the Constitution and laws. Therefore, the grounds for dismissal may only be a substantial disciplinary violation, which is determined by court and requires the approval by 12 votes of the qualified majority. We are 16 persons now, so to dismiss a colleague we will need to make a decision by almost all of our factual staff. By and large, dismissal of a judge for violating the oath was some kind of medieval savagery. As, speaking of a violation of the oath, what is it? This is an ancient tradition of taking an oath, that is, of an act of entering into an agreement, after which an individual who brought it became a "person" of his suzerain (that is, was loyal to them). Undoubtedly, all branches of power used it when releasing the judges. The third important element of the judicial reform is the introduction of a constitutional complaint. The fourth lies in the function of official interpretation of laws was removed from the CCU.

– As for the competitive selection of judges for the position in the CCU, will it make sense if this competition is similar to the competition to the SC?

– Firstly, the CCU is formed by the quota of the President, the Parliament and the Congress of Judges. This Constitutional provision may not be avoided. Secondly, speaking of the scale, i.e., making the all-Ukrainian competition, it sounds interesting, but in Ukraine, I can count on the fingers of one or two hands those individuals who are worthy to hold the position of a judge of the CCU. We have few experts in constitutional law, since this is a very specific branch that we have not developed. For a long time it was taught as a post-Soviet law: we were just studying the text without understanding the ideas and values behind. The main problem is trying to reduce the constitutional law to understanding of the text only. This is also important, but its only 1% or 2% of the total significance of the constitutional law.

– How will the requirement for political neutrality correlate with the fact that there are three subjects for the appointment?

– The Supreme Court judges in the US are also appointed by the President after being approved by the Senate. This is an issue of distribution the power, and the judiciary power, sorry for repeating myself, is also the power. When it comes to the appointment to high positions like this, of course, there are elements of political influence. The Senate gives their recommendations according to their views, someone is more conservative, someone is a liberal, and so on. It is a healthy compromise, although the political element may not dominate. After all, if politicians start dominating in the issue of appointment, and especially in the issue of recalling the judges, then this is not a court any longer, but a political body.

– In this context, do you think it is correct for the judges of the CCU to have meetings with the representatives of various branches of power and political forces?

– I proposed the initiative of meeting with the chairmen of the parliamentary fractions. As of today, 4 or 5 Heads have visited the CCU, but we did not discuss issues of how to resolve cases. As I am the newly appointed chairman of the court and we are in the middle of the constitutional reform, we were discussing only our mutual task – protecting the Constitution. In addition, during my term of office, two decisions were made as to the unconstitutionality of laws in general due to the violation of the procedure for their examination and approval. This is happening for the first time, if we do not take into consideration the decision regarding law No. 2222 (on the amendments to the Constitution). A lot of issues arise; we can recognize 90% of laws as unconstitutional. However, in our decisions we have stated that only a gross and substantial violation leads to the recognition of laws as unconstitutional. Consequently, such meetings are concerned with the representative functions of the Head, although I understand that in other countries these issues are not so often discussed in this way. However, and I am repeating again, we are speaking about strengthening the authority of the Constitutional Court and understanding that we have it.

– What is required to be changed in the status / approaches of the CCU?

– Undoubtedly, the foundation was laid by the constitutional reform. We have nothing but a pen and paper. Although, the decisions have tremendous effect, as we can declare the law unconstitutional. You can imagine the level of responsibility! The other side of this responsibility is the independence of court. These two elements are co-related, therefore, it is crucial that only responsible and professional individuals of good reputation could become the judges of the CCU. The foundation for this has already been laid. The next step is to develop a doctrine. Unfortunately, our constitutional law is being developed in a Soviet paradigm, where the Constitution is just a text. However, from the standpoint of current approaches, it is not only a text but also the principles and values by which the constitutional justice is exercised. Certainly, one cannot ignore political culture and constitutional traditions. People's deputies should understand, when the CCU executes its work it protects the Constitution, and accept our decisions with a calm reaction.

– Do the CCU judges have to predict the consequences of their decisions, regardless of the co-relation of legality and fairness?

– Of course! Moreover, this search for balance takes place in every case. Believe me, making a decision is not so easy. Previously, we were criticized for taking few decisions, and now – for being too active in doing this. There should always be a golden middle, but I cannot say how many decisions a year we have to make. Most importantly what our decisions were motivated with. We cannot just indicate that a certain provision has been violated, we shall present to society the conceptual matters and ideas that led to this very decision. The media play an important role in this, as they bring certain messages to the public and shape people's opinions on many issues.

As an example we can take recognizing as unconstitutional of the penitentiary investigators in the Ministry of Justice. This is a violation of the positive duty of a state to guarantee the right to life and the prohibition of torture. The meaning of the positive duty is to ensure the independence of investigation. If the investigation is subordinate to the Ministry of Justice, which includes the penitentiary system as one of its bodies, it may not provide independence of investigation related to torture and deaths of individuals who are under the supervision of state in its premises (e.g., in detention facilities). It is also worth mentioning the unconstitutionality of Art. 315 of the CPC of Ukraine, which provided for the automatic extension of the preventive measure without the parties' petition. In practice, it looked like this: when the case was transferred to court, and there was no petition for extension, the period was extended by a judge automatically. Although, this is not the concern of the court. We have formed a concealed principle, which does not exist in the Constitution, but it exists based on the nature of the judiciary power, as the CU states that the judges are independent, and we have also added that judges are impartial. It is also stated in international standards. When a judge extends the term of detention without a prosecutor's petition, they are not impartial and in fact take the side of prosecution.

– Do you expect any changes in most activities related to incoming constitutional petitions from the Ombudsman and the SC(U), as this is them who are one of the first to know about violations of human rights, which are connected with the unconstitutionality of an act or its incorrect interpretation?

– I do have questions related to the reform of procedural codes. Current reactions cover quite simple instances when the law is unconstitutional judging from its literal understanding. However, most cases, on the contrary, are complex and require their development through the decision of the Constitutional Court. Previously, there was a wonderful provision in the law on the CCU: if a judge can see that a provision is unconstitutional, they suspend the process and transfer this issue through the SC to the CCU. Although, firstly, this shall take place directly, and not through the SC, and secondly, this shall be prescribed in the specialized law and procedural codes. It does not exist now. Actually, I think that is questionable. However, at present there is an institution of constitutional complaint, when an individual can apply to the CCU after passing through all courts, but before this happens, judges may admit a certain constitutional injustice.

– Which of the state processes will the introduction of a constitutional complaint affect? Do you foresee any complications of citizens’ access to justice of the CCU?

– The CCU is not a classical body of justice. In our decisions, we state the content of human rights contained in the Constitution. We establish constitutional or not certain ideas that we understand, and the criteria that may limit human rights. We judge not people but laws. We have a completely different public function. Although, with a constitutional complaint we are closer approaching to courts of general jurisdiction.

– Is this a good tendency? Should it be like that?

– Like in the whole world, where there is rule of democracy, there is an institution of constitutional complaint.

– Are you a religious person? If yes, will you off-take yourself if a case is examined in relation to Art. 35 of the Constitution? For example, in relation to the constitutionality of the prohibition for same-sex marriage and / or constitutionality of religious schools, already created by religious organizations in accordance with the Law of Ukraine On Education of 2015?

– My answer to the first question is yes. I have not determined my position as for the same-sex marriages. The off-take had to take place if I had said that as a Catholic or a Greek Catholic, I may incriminate the same-sex marriage. However, judges cannot afford such statements, otherwise there will be no judges of the Constitutional Court, who will be able to examine the cases not only in this, but also in many other instances.

– Will the religious beliefs affect your objectivity?

– Every person has their convictions. My beliefs by no means affect the decisions, in the consideration of which I participate. When I was writing a manuscript about judicial law-making, I studied the issue of judicial activism. In general, I came to the conclusion that each judge has their own system of views. Someone is a conservative, someone is a liberal, someone is a socialist, and so on. This is a general principle that does not affect the decisions that are made. Our judges do not have common views due to professional disputes. This is all right. The most important is that the court makes a balanced decision, taking into account all possible details.

As for the education, indeed, this is an interesting question that lies in the area of separation of church from the state. Once, in Italy were some disputes about the sacrament at schools. At first, the European Court found it unconstitutional. There were numerous demonstrations and protests. Later, the Grand Chamber of the same court took the opposite position. However, I cannot express my point of view on this matter, because if this case is examined (which would be rather interesting), I will have to declare my off-take.