Regulating the system of constitutional adjudication

Comments on the Law on the Constitutional Court of Ukraine
Bohdan A. Futey

Adopted on June 28, 1996 by the Verkhovna Rada (Parliament), the Constitution of Ukraine establishes the Constitutional Court as an integral part of the Ukrainian judicial branch. (For a general discussion on the Constitution, see Bohdan A. Futey, “Comments on the Constitution of Ukraine,” EECR, Vol. 5, Nos. 2-3, Spring-Summer 1996). In addition to setting forth the role and structure of the judiciary in general terms, the Constitution outlines the entities that administer judicial proceedings, the Constitutional Court and the courts of general jurisdiction. Specifically, Chapter 12 of the Constitution establishes the basic framework for the Court, describing its role, structure, jurisdiction, and authority. It also delineates requirements for “standing” to bring matters before the Court. Importantly, the final provision of Chapter 12 states that the organization and functions of the Court, as well as the procedure by which it considers cases, is to be determined by law. In effect, the Constitution left many matters regarding the judiciary to subsequent enabling legislation.

          As far as the Constitutional Court is concerned, such legislation was enacted on October 16, 1996, when Parliament adopted the “Law on the Constitutional Court.” This law sets forth the fundamentals of the Court, constitutional procedure, and the peculiarities of constitutional proceedings. Although these arrangements generally follow those outlined in the Constitution, the law apparently makes additions to the constitutional articles on the Court. Of greater import, however, are certain inconsistencies between the Constitution and the “Law on the Constitutional Court.” These areas of concern must be addressed and clarified before the Court can establish the credibility it needs to be effective. The need for such clarification is especially compelling since the Court began accepting constitutional appeals and petitions on January 1, 1997.

The Constitution of Ukraine
Any discussion of the relationship between the fundamental law and the Constitutional Court must begin with Art. 6 of the Constitution. Article 6 provides for a separation of state power among the legislative, executive, and judicial branches. Although this basic structure is similar to that found in the US, the judiciary is organized differently. Most notably, the organizational structure in the Ukrainian judiciary allocates judicial functions among the courts of general jurisdiction on the one hand, and the Constitutional Court on the other. Thus the Ukrainian judicial structure resembles the systems prevailing in Germany and France.

          The role of the new judiciary is generally defined in Art. 124 of the Constitution, which stipulates that justice is exercised entirely by the courts, having jurisdiction over all legal relations in the state. In addition, it provides that the citizenry directly participates in administering justice through peoples’ assessors and juries. (The Constitution does not, however, define “peoples’ assessors” or the jury concept.) As previously noted, judicial proceedings are administered by both the courts of general jurisdiction and the Constitutional Court. In accord with Art. 125, the system of courts of general jurisdiction is built on principles of territoriality and specialization. (The new court system of Ukraine envisions the creation of specialized courts separated into separate judicial divisions. At the apex of each respective division will be a high court, including: the High Criminal Court; the High Civil Court; the High Commercial Court; the High Administrative Court; the High Military Court; the High Intellectual Property Court; and the like.) The courts of general jurisdiction fall under the authority of the Supreme Court which is the highest judicial body in the system of courts of general jurisdiction and to which the specialized courts appeal.

          Despite the constitutional provision for a unified system of courts of general jurisdiction, the Constitution, in fact, prevents the establishment of a truly unified judiciary, because divisions between the courts of general jurisdiction and the Consti-tutional Court are not clear. This lack of unity becomes apparent when the jurisdiction of the courts of general jurisdiction is compared with that of the Court. Specifically, constitutional Art. 147 assigns exclusive authority to the Constitutional Court to interpret laws and declare laws or acts unconstitutional. Without such authority, the courts of general jurisdiction lack the tools necessary to act as a separate and coequal branch within the government structure. (The separate nature of the courts of general jurisdiction and the Court is further highlighted by Art. 31 of the “Law on the Constitutional Court,” which provides that the Court is to be financed as a separate line item in the state budget, that is, separate from the courts of general jurisdiction.) In reality, therefore, the Court, which is the sole body with “judicial review” authority, is the only real “judicial power” in Ukraine, at least in the American understanding of that concept, and thus it effectively represents the true judicial branch.

          Article 8 of the Constitution guarantees the right of direct appeal to court, based on the Constitution, for the defense of constitutional rights and freedoms. (The Constitution’s general use of the term “appeal” should not to be confused with the specific definition given to the term “constitutional appeal” in the “Law on the Constitutional Court.”) Article 55 also advances this concept by stating that the rights and freedoms of every person are protected by the courts. The same article further provides a general description of the notion of standing, as it relates to the protection of these rights and freedoms, granting every person the right to “appeal” to the courts the actions or inactions of bodies of state power, bodies of local self-government, and public officials and servants. In addition, every person is guaranteed the right to “appeal” for the protection of his or her rights to the authorized representative on human rights (ombudsman) of the Verkhovna Rada who has not yet been appointed by Parliament. People may also “appeal” to the United Nations or the Council of Europe, although it is unclear how those organizations could enforce rights under the Ukrainian Constitution.

          Whereas Art. 55 discusses the concept of “standing” in general, especially as it applies to the courts of general jurisdiction, Art. 150 more clearly defines the concept of standing before the Court as it relates to its jurisdiction. Despite the apparently broad standing principles set out in Art. 55, Art. 150 explains that only certain enumerated entities may request the Court to decide on the constitutionality of laws and other legal acts of Parliament, the president, the cabinet of ministers, and the Parliament of the Autonomous Republic of Crimea. These entities include the president, no less than 45 MPs, the Supreme Court, the ombudsman, and the Crimean Parliament. Article 150 places no such limitation on the persons who may request official interpretations of the Constitution and laws of Ukraine. The Constitution provides that the decisions of the Court are binding throughout Ukraine.

          With regard to the structure of the Constitutional Court, the Constitution calls for a Court comprised of 18 judges, with the president, Parliament, and the Congress of Judges appointing six judges each. At present, only 17 judges have been appointed to the Court, with one remaining judge still to be appointed by Parliament. (Pursuant to Arts. 7 and 8 of the “Law on the Constitutional Court,” both Parliament and the Congress of Judges appoint judges to the Court by secret ballot.) The Constitution states that a judge of the Court must be a citizen of Ukraine “only,” who: (1) is not less than 40 years of age at the time of his or her appointment; (2) possesses a high legal education and at least 10 years of professional experience; (3) has resided in Ukraine for the previous 20 years; and (4) speaks the state language. Judges of the Court are appointed for 9 years, with no right to reappointment. After appointment, the judges of the Court, at a special plenary meeting, elect a chairman to serve a single, three-year term.

          One concern raised by these provisions is the judges’ objectivity. The Constitution provides that judges are immune from prosecution for their decisions, which should enhance their ability to render impartial decisions. But the attainment of such impartiality is threatened by other provisions, such as the finite term of appointment to the Court. As a result of this term limit, some judges will face the prospect of seeking future employment and, with that in mind, may favor one resolution over another. Further, the Constitution fails to guarantee judicial salaries, again leaving the door open for concerns regarding objectivity and independence. Such constitutional deficiencies create the appearance of impropriety in the public’s mind and should be addressed.

          Although these concerns are not allayed in the “Law on the Constitutional Court,” other organizational provisions, as well as provisions regarding standing before the Court and its jurisdiction, are elucidated in the law. Moreover, while the law generally follows and clearly seeks to advance the basic principles set out for the Court in the Constitution, it diverges somewhat from that foundation.

The Law
At the outset (Art. 1), the “Law on the Constitutional Court” makes clear that the Court is the sole body vested with constitutional jurisdiction. In explaining this jurisdictional authority, Art. 13 of the law provides that the Court considers issues that fall within any of four designated areas: (1) the constitutionality of laws and other legal acts of Parliament, acts of the president, acts of the cabinet of ministers, and legal acts of the Crimean Parliament (Art. 13.1); (2) correspondence to the Constitution of actual international treaties of Ukraine or international treaties submitted to Parliament for confirmation (Art. 13.2); (3) adherence to the constitutional procedure of investigation and consideration of a case on the dismissal of the president from his position in the order of impeachment, within the limits set forth in Arts. 111 and 151 of the Constitution (Art. 13.3); and (4) official interpretation of the Constitution and laws of Ukraine (Art. 13.4).

          The Court’s jurisdiction, however, is even broader than this, because in addition to its power set forth in Art. 13, it is granted authority to consider certain matters sua sponte pursuant to Art. 61 of the “Law on the Constitutional Court.” Article 61 provides that if, during consideration of a case on constitutional appeal or petition, the Court finds a discrepancy between the Constitution and a legal act that is not involved in the present proceeding but which has an effect on the adoption of a decision or provision of a conclusion, the Court may adopt a decision regarding the unconstitutionality of such other legal acts, or particular portions thereof.

          Despite this apparent extension of the Court’s jurisdiction, the “Law on the Constitutional Court” also specifically excludes certain areas from the Court’s reach. Indeed, Art. 14 of the law states that the authority of the Court does not include jurisdiction over: (1) issues regarding the legality of acts of bodies of state power. (By using the term “legality” in this article, the drafters of the “Law on the Constitutional Court” clearly meant to draw a distinction between the Court’s authority to determine the constitutionality of a legal act and its lack of authority to resolve questions involving alleged illegal acts by the bodies of state power. Such jurisdiction over so-called criminal behavior lies with the courts of general jurisdiction); (2) issues regarding the legality of acts of bodies of power in Crimea; (3) issues regarding the legality of acts of bodies of local self-government; and (4) issues under the authority of the courts of general jurisdiction.

          The law’s inclusion of these limitations highlights the distinction between the system of courts of general jurisdiction and the Court, and makes clear that the Constitutional Court is the only body with true judicial review authority. In employing this judicial review authority, the Court, pursuant to Art. 15, may adopt a decision declaring a legal act unconstitutional if it finds that: (1) the legal act does not correspond to the Constitution; (2) the manner in which the legal act was considered, adopted, or came into force violated the procedures set out in the Constitution; or (3) the relevant body exceeded its constitutional power in adopting the legal act. Article 61 provides that the Court may consider a legal act unconstitutional entirely or in part.

          At this point, it should be noted that the “Law on the Constitutional Court,” in Arts. 61 and 62, draws a distinction between the Court adopting decisions and the Court providing conclusions. Under the law, the Court adopts decisions regarding issues within the Court’s Art. 13.1 jurisdiction. By contrast, the Court provides conclusions on issues within the areas of jurisdiction provided for in Art. 13.2-4. Article 69 emphasizes that decisions and conclusions of the Court are equally binding, which raises a question as to why the distinction is necessary.

Article 13.1
Article 40 of the “Law on the Constitutional Court” lists those with standing to file constitutional appeals regarding the adoption of decisions by the Court in the cases set forth in Art. 13.1. These potential applicants include: (1) the president, (2) at least 45 MPs, (3) the Supreme Court, (4) the authorized representative on human rights, and (5) the Crimean Parliament. This list is the same as that set out in Art. 150 of the Constitution. Neither the Constitution nor the “Law on the Constitutional Court” permits private citizens to bring constitutional appeals directly before the Court pursuant to Art. 13.1.

          Proceedings envisaged in Art. 13.1 are broadly set out in Chapters 9 and 10 of the “Law on the Constitutional Court.” Initially, Art. 71 reiterates the principles regarding the submission of constitutional appeals previously discussed in Arts. 13.1 and 40. Article 75 expressly defines the reasons for a constitutional appeal as follows: “The reason for a constitutional appeal is the existence of divergence regarding the authority of the constitutional bodies of state power of Ukraine, bodies of power of the Autonomous Republic of Crimea, and bodies of local self-government, if one of the subjects of the constitutional appeal, envisaged in Art. 40 of this law, believes that legal acts, mentioned in [Art. 13.1] of this law, which set forth the authority of the aforementioned bodies, does not correspond to the Constitution of Ukraine.” Importantly, it should be noted that Art. 75 mentions for the first time, in the context of Art. 13.1, bodies of local self-government. It is therefore unclear whether the Court actually has jurisdiction to hear challenges to the constitutionality of acts of bodies of local self-government.

          If a case questioning the constitutionality of an act of a body of power is brought before the Court, Art. 72 requires the Court to involve the participation of the body whose act is being challenged. In imposing this requirement, the “Law on the Constitutional Court” seeks to insure fair representation in its proceedings. Similarly, Art. 76, guarantees any of the subjects listed in Art. 40 the right to participate in each stage of a constitutional proceeding, if it is deemed that a decision of the Court might affect the extent of that subject’s authority. In this respect, Art. 76 resembles what would be described as a permissive intervenor clause in the American legal system.

          After consideration of a case, the Court adopts decisions regarding the constitutionality of the challenged act. Under Art. 73, if the Court finds an act, or a particular provision thereof, to be unconstitutional, it declares the act or provision void. The act or provision loses its force from the day the Court’s decision is adopted. Pursuant to Art. 74, if the Court declares an act unconstitutional, it may notify the courts of general jurisdiction of the prejudicialness of its decision regarding any suits in those courts that involve matters relating to the unconstitutional act.

          Following this discussion of procedures on bringing and deciding suits involving the Court’s Art. 13.1 jurisdiction, Chapter 12 more specifically addresses the peculiarities of proceedings involving the correspondence of provisions of legal acts mentioned in Art. 13.1 to the constitutional principles and norms regarding human and citizen rights and freedoms. Article 82 lists several reasons for submitting requests to initiate proceedings before the Court regarding the correspondence of norms of acting legislation to the principles and norms of the Constitution concerning human and citizen rights and freedoms. Such reasons include: (1) the existence of disputed issues concerning the constitutionality of adopted and promulgated laws and other legal acts; (2) questions regarding the constitutionality of legal acts discovered during the judicial process of the courts of general jurisdiction; and (3) disputes regarding the constitutionality of legal acts revealed by the executive branch in the process of their implementation and by the human rights representative in the process of his or her work. It is left unclear, however, who has standing to make such requests. Because Chapter 12 deals exclusively with acts covered under Art. 13.1 of the “Law on the Constitutional Court,” it may be presumed that only subjects with standing to file constitutional appeals, pursuant to Art. 40, can make such requests.

          With respect to issues regarding the constitutionality of a norm of law that arise in the process of general jurisdiction mentioned in Art. 82, Art. 83 requires proceedings on the case before the court of general jurisdiction to be stayed, constitutional proceedings on the case initiated, and the consideration of the case by the Constitutional Court begun without postponement. Unfortunately, the “Law on the Constitutional Court” once again fails to state the procedure by which, or by whom, such a case is to be presented to the Court. Moreover, Art. 83 gives no indication of how, or even if, the stay of the case will be lifted, should the Court find no inconsistency between the challenged act and the Constitution. The Court would benefit from the adoption of its own rules regarding the acceptance of cases from courts of general jurisdiction, as well as the manner in which such cases, if required, will be remanded to courts of general jurisdiction. In addition, this stay provision may open the door for persons without standing to bring, de facto, constitutional appeals before the Court in circumvention of the standing limitations set out in Art. 40. More specifically, if such a person wishes to question the constitutionality of a particular act, that person can simply file a suit involving that act with a court of general jurisdiction with the hope that, during the judicial process, questions regarding the act’s constitutionality will be raised, staying the judicial process and requiring presentation of those questions to the Constitutional Court for a decision.

          Chapter 13 addresses the peculiarities of legal proceedings regarding the constitutionality of legal acts that contradictorily regulate the order that constitutional rights and freedoms of citizens and individuals are realized. Article 84 provides that the subject of constitutional proceedings, in cases regarding the constitutionality of norms of laws that contradictorily regulate the order of realization of constitutional human rights and freedoms of citizens, is to resolve disputed issues concerning the constitutionality of norms of two or more laws or acts of international law, which are considered binding throughout Ukraine and which stipulate different procedures of realization of one and the same constitutional right or freedom, thereby significantly curtailing opportunities for their usage. In accordance with Art. 85, such proceedings are initiated by a subject with the right to file a constitutional appeal as set out in Art. 40. Thus it appears that bringing appeals on constitutional human rights is not limited to the human rights representative, as might have been presumed under Art. 55 of the Constitution.

Article 13.2
Proceedings on cases envisaged by Art. 13.2, that is correspondence to the Constitution of “actual international treaties” of Ukraine or international treaties submitted to Parliament for confirmation, are discussed in Chapter 14. The term “actual international treaties” refers to treaties previously confirmed by Parliament. Under Arts. 41.2 and 87, only the president and the cabinet of ministers have standing to bring constitutional appeals before the Court to consider the constitutionality of existing international treaties. After considering such a case, the Court provides conclusions regarding the constitutionality of the actual international treaty at issue. If the Court concludes that the treaty does not correspond to the Constitution, in the same proceeding it resolves issues involving the constitutionality of the treaty or particular provisions thereof.

          Likewise, issues regarding the constitutionality of international treaties slated for submission to Parliament for confirmation are considered by the Court on appeal either by the president or the cabinet of ministers, pursuant to Arts. 41.2 and 88. Article 88 further declares that the initiation of such proceedings stays Parliament’s consideration of the treaty for confirmation. As with the stay of proceedings before courts of general jurisdiction provided for in Art. 83, the “Law on the Constitutional Court” says nothing about the process by which a stay before Parliament, provided for in Art. 88, may be lifted.

          Finally, Art. 89 provides that, upon the submission of a constitutional appeal by any of the subjects set forth in Art. 40, the Court considers issues regarding the constitutionality of legal acts of Parliament, the president, or the cabinet of ministers on the coming of international treaties into legal force in Ukraine. By allowing any of the subjects listed in Art. 40 to bring such challenges to the constitutionality of legal acts related to the approval of an international treaty, the “Law on the Consti-tutional Court” essentially expands standing to challenge the constitutionality of an international treaty beyond the president and cabinet. This expansion is made clear by the provision in Art. 89 that states, during the consideration of a case regarding the constitutionality of the legal act, the Court shall simultaneously provide a conclusion regarding the constitutionality of an international treaty of Ukraine that came into legal force pursuant to the legal act at issue. By challenging a related legal act, a subject who otherwise could not challenge the constitutionality of a treaty, therefore, may still force the Court to provide such a conclusion. Thus while Art. 89, on its face, discusses only legal acts surrounding treaties, in practice it would appear to extend to the validity of the treaty itself.

Article 13.3
Proceedings on cases envisaged by Art. 13.3 are set out in Chapter 15 of the “Law on the Constitutional Court,” which stipulates that the reason for the initiation of constitutional proceedings is the constitutional appeal of Parliament requesting the provision of a conclusion regarding adherence to the constitutional procedures for the impeachment of the president. Standing to bring such an appeal is limited to Parliament. After a case is brought, the Court provides a conclusion regarding adherence to the impeachment process set out in Art. 111.6 of the Constitution. This article provides that, while the Constitutional Court determines the constitutionality of the impeachment proceedings, the Supreme Court decides whether the deeds with which the president is charged indicate state treason or another crime.

Article 13.4
Chapter 16 of the “Law on the Constitutional Court,” Art. 93 in particular, discusses proceedings in cases envisaged by Art. 13.4, and states that the reason for a constitutional appeal concerning an official interpretation of the Constitution or laws is a practical necessity in understanding, explanation, or official interpretation of provisions of the Constitution and laws of Ukraine. The Court must notify the subjects who filed the constitutional appeal within ten days of initiating proceedings on the appeal. The subjects with the right to file such an appeal, enumerated in Art. 41.4, include: (1) the president, (2) at least 45 MPs, (3) the ombudsman, (4) the Supreme Court, (5) the cabinet of ministers, (6) other bodies of state power, (7) the Crimean Parliament, and (8) bodies of local self-government.

          Although only the subjects listed in Art. 41.4 have the right to file a constitutional appeal requesting a blanket interpretation of a law or the Constitution, additional persons and entities may request an official interpretation by means of a constitutional petition if two specific conditions are met. Generally, Art. 42 describes a constitutional petition as follows: “A constitutional petition is stated in written form to the Constitutional Court regarding the necessity of an official interpretation of the Constitution and laws of Ukraine, with the purpose of ensuring the realization or protection of constitutional rights and freedoms of person and citizen, as well as the execution of the rights of a legal entity.” More particularly, pursuant to Arts. 43 and 94, citizens of Ukraine, foreigners, individuals without citizenship, and legal entities have the right to file constitutional petitions regarding an official interpretation of the Constitution or laws if such person or entity believes: (1) the presence of inconsistent implementation of provisions of the Constitution or laws by the courts and other bodies of state power and; (2) that it has caused, or may cause, a violation of that person or entity’s constitutional rights and freedoms.

          Pursuant to Art. 95, if, in the process of interpreting a law, the Court finds a provision of the law to be in conflict with the Constitution, the Court, in the same proceeding, decides the issues regarding the constitutionality of the law. In adding this provision, the “Law on the Constitutional Court,” in effect, may permit several subjects, who would not have standing to request such a decision through the Arts. 13.1 and 40 channels, a means to obtain it.

Proceedings before the Constitutional Court
Article 46 of the “Law on the Constitutional Court” provides that the initiation of proceedings on a constitutional appeal or petition is approved by either the Constitutional Court itself or the Collegia of Judges of the Constitutional Court, which is, according to Art. 47, established specifically for this purpose. (The law does not establish the number of judges that are to comprise the Collegia.) Pursuant to Art. 45, the Court can refuse to initiate proceedings in the event of: (1) an absence of a right to file a constitutional appeal or petition as established by the Constitution and the “Law on the Consti-tutional Court;” (2) discrepancies between the appeal or petition and the requirements set out in the Constitution and the “Law on the Consti-tutional Court;” or (3) a lack of jurisdiction over the issues contained in the appeal or petition.

          In accordance with Arts. 48 and 49, the Collegia votes to initiate or refuse to initiate proceedings before the Court by a majority of its members. If the Collegia votes to initiate proceedings, the chairman of the Court submits the case for consideration at a plenary meeting of the Court. If the Collegia decides not to initiate proceedings, however, the secretary of the Collegia submits materials to the chairman of the Court for consideration of the case at a meeting of the Court. Under Art. 50, in the event that the Collegia votes against initiating proceedings, a meeting of the Court considers whether proceedings should be initiated. If a meeting of the Court votes to initiate proceedings, the case is submitted for consideration by a plenary meeting of the Court. If, on the other hand, the Court refuses to initiate proceedings regarding a case, that decision is final.

          Article 50 further provides that a meeting of the Court is valid, that is a quorum exists, if no fewer than eleven judges participate in the meeting. In order to initiate proceedings on a case, at least six of these eleven judges must vote in favor of such decision. Article 51 directs that the Court, at its plenary meetings, consider cases, legal proceedings which were initiated pursuant to constitutional appeals and petitions, as well as other issues provided for in the “Law on the Constitutional Court.” More specifically, at its plenary meetings, the Court adopts decisions on cases envisaged by Art. 13.1, and conclusions envisaged by Art. 13.2-4. A plenary meeting of the Court is valid if at least twelve judges participate in the plenary meeting. Further, a decision of the Court on the merits of a case is considered to be adopted, and a conclusion is considered to be provided, at its plenary meeting if at least ten judges vote in favor of the decision or conclusion.

          In addition to setting out the voting procedures, Art. 63 declares that decisions and conclusions of the Court are final and are, therefore, not subject to appeal. Pursuant to Art. 68, however, the Court, upon its own initiative, may reopen legal proceedings in a case should new circumstances appear that had existed at the time of the Court’s initial review and determination but were not a part of its consideration.

Pressing Issues
The Constitutional Court has been summoned to perform a noble but difficult task which will have wide-ranging implications for the future of Ukraine’s judiciary. Media reports indicate that, to date, more than 1000 constitutional petitions have been brought before the Court. It remains to be seen whether the Court will be able to carry such a heavy docket, especially since it is still missing one of its eighteen judges and has no lower courts to assist in the process. In addition, several constitutional appeals have been, or soon may be, filed by subjects with standing under Art. 40 of the “Law on the Constitutional Court.” The Court’s determinations regarding several such appeals in particular will have a significant impact on its own future role, as well as its authority, within the government structure and with the public.

          One appeal presently before the Court concerns whether members of Parliament may hold more than one state position. Reports indicate that 120 of the 450 MPs comprising Parliament signed the constitutional appeal requesting that the Court decide on this matter. Resolving this issue will require the Court to interpret Art. 78 of the Constitution, which seems to prohibit dual mandates. Second, the Court may be called on to decide the status of approximately 60 MPs who were elected to Parliament under the prior Constitution and who have not taken the oath of allegiance to the new Constitution. The Court may be asked to determine whether the taking of the oath is a constitutional requirement, according to Art. 79.

          In addition to these issues, the Court may also be faced with a constitutional question that more directly affects its own organizational structure. Specifically, after the declaration of Ukraine’s independence, property previously belonging to the Communist Party was turned over to Parliament. This property includes the building that the Court (by decree of the president) currently occupies. Parliament is currently contemplating whether to challenge this presidential decree at the Court. If accepted for consideration, such an appeal would require the Court to determine the constitutional validity of its own right to occupy its own offices. In fact, the Court has already received an appeal concerning the ban of the Communist Party, as decreed by the Presidium of Parliament in September 1991.

          Like Parliament, the president also has invoked his standing before the Court in order to question the constitutionality of certain legislation passed by the Crimean Parliament. In considering this appeal, the Court will need to decide whether the challenged legislation complies with Ukraine’s Constitution and laws.

          Another issue expected to be brought before the Court has more to do with external pressures than internal Ukrainian constitutional questions. Specifically, the Council of Europe is threatening to expel Ukraine, due to its refusal to set a moratorium on, or abolish, the death penalty. Because Parliament has not acted in response to these threats, it is anticipated that the president will refer the matter to the Court for a decision.

          The future of the Constitutional Court depends on its judges’ collective and singular credibility. Such credibility will be either validated or refuted depending on the manner in which these important matters are resolved, and the extent to which the Court can avoid being pulled into the ongoing political struggle between the president and Parliament. It remains to be seen whether the Court can rise to face the challenges presented and render fair and well-reasoned decisions and conclusions in furtherance of judicial independence.

Bohdan A. Futey is a Judge of the United States Court of Federal Claims in Washington, D.C.