Ukraine and the Venice Commission: A Pattern of Mutual Influences over the Last Decade

[Andrii Nekoliak is a re:constitution Fellow 2025/2026. He was previously a MEMOCRACY postdoctoral researcher at the T.M.C. Asser Institute and Konrad Adenauer Junior Fellow at the University of Cologne. He holds a PhD in Political Science from University of Tartu.

Roman Nekoliak is a senior international relations officer at the Center for Civil Liberties (Kyiv, Ukraine). He holds a Ph.D. in law in Ukraine]

In spring 2025, at the request of Ukraine’s Constitutional Court, the Venice Commission issued an amicus curiae brief on the legal regulation of alternative (non-military) service. The Commission’s approach to the issue of conscientious objection during wartime – reflecting its role as the Council of Europe’s advisory body on constitutional matters – stands in contrast to that adopted by Ukraine’s Supreme Court and national authorities. 

Not only does the Commission’s brief raise the stakes in the domestic debate on a salient human rights issue, but it also invites a broader reflection on its engagement with Ukraine. This blog post first reviews the past decade of the Venice Commission’s decision-making on Ukraine’s requests. Throughout the post, the authors demonstrate an existing pattern of mutual influences between Ukraine and the Venice Commission and then provide an outlook on the future of their relationship.

The Influence of the Venice Commission on Ukraine’s Affairs 

Ukraine is routinely among the most frequent appellants seeking constitutional law advice from the Venice Commission. Politically, the impetus to engage with the Venice Commission has come from the Ukrainian Parliament. Since 2015, of thirty-four opinions, twenty-seven were submitted by Ukraine’s national authorities (mostly the Parliament, and to a lesser extent, the Government) and only seven by other relevant agents (such as PACE’s Monitoring Committee). Among post-Soviet European states, Moldova provides a comparable case – it similarly sends a high number of opinion requests, with the Moldovan cabinet requesting the review of draft legislation most often. Both countries seem to be constitutional reform zealots seeking to thoroughly align with the Council of Europe’s framework on constitutional democracy and to achieve European Union membership in the long run.

The areas of engagement between Ukraine and the Venice Commission vary, yet its most numerous and influential output concerns the reforms of the judiciary. Whether before or after Russia’s full-scale invasion in 2022, any significant legislative development regarding the set-up or selection of constitutional justices or the vetting of the High Council of Justice of Ukraine (HCJ) was consulted with the Commission’s experts at various stages of the development (opinions from 2020, 2021, and 2022). The effects of the decision-making have been mixed. Though walking on a rather fine line, the Commission was drawn into commenting on domestic politics and backlash surrounding Ukraine’s Constitutional Court (consider the events of the 2020 constitutional crisis). At the same time, reputable civil society organizations have recently urged the Commission to press Ukraine’s legislators further on reforming constitutional justice. The polarity of views reflects the high stakes involved, where legal advice by the Commission members may have far-reaching consequences. 

The use of amicus curiae provides a respite for Ukraine’s appellants from domestic political pressures. Requests for an opinion from a reputable external body like the Venice Commission shields from allegations of political corruption or bias domestically. In this regard, since President Zelensky’s election in 2019, the Constitutional Court turned to the Commission seven times (it had never done so before). Often, securing a brief from Venice foreshadowed a corresponding decision by the Court. In 2019, the Court ruled on President Zelensky’s plans to amend the text of the Basic Law several times. One initiative concerned the abrogation of MPs’ mandates for absenteeism. President Zelensky proposed an automatic termination of MPs’ mandates for the nonattendance of a certain threshold number of plenary sessions or parliamentary committee meetings. After obtaining an amicus brief beforehand, constitutional justices then ruled that Zelensky’s amendment was unconstitutional. 

In autumn 2024, constitutional justices sought a brief from the Commission regarding alternative (non-military) service – a human rights issue in Ukraine. The observers readily noticed that the timing of the Constitutional Court’s request for an amicus curiae coincided with growing pressure on constitutional justices to address the right to conscientious objection enshrined in the Ukrainian Constitution (Article 35). Previously, Dmytro Zelinsky, a Seventh Day Adventist, who refused conscription to the military and was sentenced by a criminal court, unsuccessfully appealed the verdict to the Supreme Court. He eventually brought a complaint before the Constitutional Court (no. 18/310). Anticipating domestic backlash, the Constitutional Court strategically calculated the risks that a decision in favor of conscientious objectors might provoke and sought to mitigate them by requesting an opinion from the Venice Commission. 

The Influence of Ukraine on the Venice Commission’s Opinions

There are instances when Ukraine’s domestic affairs have prompted the Venice Commission to revisit its conceptual approach to fundamental questions of democratic governance. One such example is Ukraine’s experiment with the so-called ‘anti-oligarch’ legislation, which led the Commission to thoroughly reflect on the undue influence of capital on the functioning of a constitutional democracy. 

In November 2021, at President Zelensky’s initiative, Ukraine’s Parliament adopted a law on the status of oligarchs. The law was meant to tackle the political influence of business moguls in Ukrainian politics. As a novelty of the Ukrainian legislation, the law sparked debate on what a model framework for such legislation in a region riddled with a coalescence between money and politics should look like. The issue of de-oligarchizing legislation remains equally relevant for Moldova and Georgia, both of which have chosen to base their legislation largely on the Ukrainian example.

Tasked with reviewing the legislation, the Venice Commission pointed out that there is no specific, ready-made standard on de-oligarchization that can be transplanted into a domestic legal order. In the words of the Commission, the issue of addressing oligarchic influences is “certainly a difficult and complex question, which the Venice Commission has carefully considered, and to which it wishes to provide an answer at this stage, while acknowledging that the reflection needs to be continued, not least in the light of the future experience in fighting oligarchic influence.” (Opinion CDL-AD(2023)018, para. 24) Furthermore, the Commission distinguished between two approaches to de-oligarchization: the “systemic” and the “personal” approaches. The systemic approach encompasses an array of legal tools in many fields of law, including antitrust, taxation, anti-monopoly to political parties, elections and media legislation. This is the approach currently favored by the Commission. The personal approach, by contrast, seeks to identify the people who are viewed as exerting negative influence on the state based on criteria such as wealth, media ownership among others. In the Commission’s view, this approach is overly punitive and potentially undermines political pluralism, which may conflict with the standards of the European Convention on Human Rights (ECHR) (para. 57-59). The Commission further notes that only in “extremely critical situations” of acute state capture could measures targeting individual oligarchs be theoretically permissible, and even then, such measures must be limited in time. 

Since 2022, the impact of Russia’s war against Ukraine has become evident in draft legislation submitted to the Venice Commission for review. The war continues to place substantial pressure on Ukraine’s constitutional order. For instance, the suspension of political parties under martial law and barring individuals from political activity are among the most recent examples. In this context, Ukraine’s 2022 Law allowed the dissolution of political parties for “justification, recognition as lawful, denial of armed aggression against Ukraine, including by presenting an armed aggression of the Russian Federation against Ukraine as internal conflict, civil conflict, civil war, denial of temporary occupation of part of the territory Ukraine”; as well as for “glorification” or “justification” of actions of persons engaged in armed aggression against Ukraine. Since its adoption, twelve political parties have been dismantled in Ukraine. 

Additionally, in 2023, a group of Ukrainian MPs proposed barring the members of the banned political parties, who had been previously elected to parliament, local councils or mayoral offices,  from taking part in any future elections for ten years — regardless of whether they had been convicted of a criminal offense or not. While the draft law has not been voted on since being introduced – due to the Venice Commission’s intervention in the matter – it demonstrates the severity of exclusionary measures aimed at barring individuals linked to banned political parties from public office that Ukraine might still consider in the future.

The Outlook for the Future

There is important leverage in the hands of the Venice Commission in democracy-making and in providing legal expertise, which sometimes turns out to decide the fate of legislation. Given Ukraine’s continued political willingness to engage with its decision-making, the political and practical significance of the Commission’s opinions and amici curiae will only grow in the foreseeable future. Some of the issues are universally relevant and will probably return to the agenda of Ukrainian lawmakers in the form of new legislation drafts – such as addressing the undue influence of wealthy individuals on the functioning of a constitutional democracy. Furthermore, the challenges of maintaining constitutionalism in wartime exert continuous pressure on Ukraine’s legal governance system, to which constitutional advice by the Venice Commission will remain an important pillar. 

There is an implication for comparative law scholarship too. Much of the meta-narrative around the Venice Commission portrays post-communist (arguably laggard) states as perpetually striving to meet the Council of Europe’s standards in democratic governance – some more successfully than others. Indeed, the whole rationale for the creation of the Commission in 1990 was to assist constitutional reformers in Central and Eastern Europe in transitioning to democracy with practical hands-on advice. Yet instead of simply re-casting this meta-narrative, comparative law scholarship could aim to examine the variety of legal governance of constitutional democracies. For instance, under what conditions is the Venice Commission’s advice most readily accepted – or, conversely, resisted? How can the impact of constitutional law guidance on socio-legal change in the region be measured over time?