The ICJ has published a briefing paper on decrees of the President of Ukraine on removal of judges of the Constitutional Court. These decrees are assessed in terms of their compliance with international law and standards and the national law of Ukraine.
Based on an analysis of international law and standards on the independence of the judiciary as well as national law, the ICJ concluded that the decrees of the President of Ukraine in respect of the judges of the Constitutional Court of Ukraine (CCU) fail to comply with international law and standards on the independence of the judiciary as well as Ukraine’s own national legal framework.
In particular, a series of measures including the legislative initiative of the President to dismiss the CCU judges, presidential decrees to withdraw appointment of the CCU judges, followed by a criminal investigation against the CCU president, appear to be linked to a CCU judgment with which the government disagreed. If this is the case, it would amount to retaliation against the CCU and individual judges of the CCU as a result of the legitimate exercise of their judicial powers within their competence. This constitutes a violation of the rule of law and the independence of the judiciary.
More precisely, an attempt to dismiss judges of the CCU, by revoking the decrees appointing them seven years after their adoption in a due manner, is not provided for by the law of Ukraine and as such constitutes an extra procedural means to dismiss a judge of the CCU. Dismissal of individual judges by Presidential decree outside the existing procedure strips judges of guarantees of security of tenure, contrary to international law and standards on the independence of the judiciary.
The ICJ stressed that the well-established principles of separation of powers and the independence of the judiciary require that there must be no interference by the executive in the exercise of the judicial functions by the judiciary. This includes disguised means of dismissals of judges duly appointed in accordance with the established procedure.
The ICJ recommended that the State authorities of Ukraine take all legal actions to respect and ensure judicial independence in Ukraine, in particular, by providing effective remedies and reparation to the judges of the CCU concerned in line with the principle restitutio in integrum as recognised in international law, including by revoking their removal and restoring them to their terms of office.
Read full briefing paper here: Ukraine Const Court-ICJ_legal brief_final_eng