Viche 2007 5

5, 2007

Will judges bring an action?

I solemnly swear to fulfill honestly and conscientiously high duties of judge of the Constitutional Court of Ukraine, to provide supremacy of the Constitution of Ukraine, to protect the constitutionalism of the state, constitutional rights and freedoms of man and citizen.
That is how the oath of the judge of the Constitutional Court sounds. Which regulations were violated by Valeriy Pshenychnyi and Syuzanna Stanik, the judges of the CC, who were recently discharged from positions by the decrees of the President, are not mentioned in decrees, unfortunately.

Judges consider their discharge illegal and are going to have legal proceedings with the country's leader. Moreover, some national deputies intend to appeal to the Constitutional Court with presentation concerning the constitutionality of decrees about dismissals of judges: let colleagues look into.

 And there is a lot to be looked into. The point is that the Constitution in the version of the Law 2222 provides that the President of Ukraine appoints and dismisses one third of the membership of the Constitutional Court (item 22 of the article 106). There is a similar regulation in the article 126, which sets that judges are discharged by an organ, which appointed them, and also the article 149, which refers to the article 126.

 At the same time the Law About the Constitutional Court of Ukraine contains other regulations: the decision concerning the stopping of plenary powers of judge of the Constitutional Court in the case of violation of oath by the judge is made by the Verkhovna Rada (article 23).

 Certainly, the Constitution has the greatest legal force and laws must correspond it. But until now no questions have been arisen concerning the constitutionalism of regulations of the article 23 of the mentioned law. And, presumably, it gives grounds to the dismissed judges to assert: nothing but a procedure of realization of constitutional regulations about discharge of the judges of the CC, which is to be observed during the acceptance of the proper decisions, is established by the law. If it is not observed, the decision about discharge is illegal and any court can renew a judge in position. That is logic of one side.

 However, the opposite side has the solid argument too: the regulations of the Constitution do not only have the greatest legal force, but they are the regulations of direct action, and it doesnt consequently need additional standard acts for realization.

 Such non-coordination of legislation actually carries to an absurdity, when the Constitutional Court has not only to consider a question concerning own plenary powers but also even to consider a question concerning the discharge of judges.

 Bringing of changes to the Law About the Constitutional Court of Ukraine would be the best method to prevent such situations in the future. Its present version (if the regulation about discharge of judges is considered to be the procedure of realization of the article 126 of the Constitution), to my mind, gives unequal position to different judges of the CC. In such a way, in order to discharge the judge appointed by the Verkhovna Rada, only the corresponding decision of the VR is needed, while in order to discharge the judge appointed by the Congress of judges and the President, the decision of both the Verkhovna Rada and the organ which appointed a judge is needed. In other words it is enough for the judges appointed by the parliament not to please the Verkhovna Rada, and to be more precisely its majority, in order to lose the honorary office.

 Although, certainly, it wouldnt be appropriate to enable the organ, which appointed a judge, to settle a question concerning violation of the oath by the last at its own discretion. In fact the judge of the CC is not the representative of interests of this organ in venerable judicial establishment. Therefore his discharge is to be grounded, and the violation of the oath by him is to be proved. Consequently, the opinion of the Verkhovna Rada as the representative organ of all people has not to play the last role in this question.

Meanwhile the President appointed new judges into position of redundant ones Stepan Havrysh and Vasyliy Kostytskyi, who, however, till swearing to the parliament can not take up the duties. And the Verkhovna Rada will scarcely hurry to adjure them. At least till the question concerning the legality of discharge of Syuzanna Stanik and Valeriy Pshenychnyi is not settled, and also till Stepan Havrysh becomes non-party man, as it is required by the Constitution.