Weekly analytics of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.
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- The public urged the President to unblock judicial reform
- Profile committee of the Verkhovna Rada plans to weaken the independence of prosecutors
- Abuse of power is in fact not punishable. However, the situation can be changed
- Constitutional Court declared unconstitutional the liquidation of the Supreme Court of Ukraine and a competitive selection for its judges
- Lack of changes in the judicial system in the long run will lead to impoverishment of the population – IMF
- People’s deputies want to level up the compensation of retired judges
- Draft law on the jurisdiction of cases from temporarily occupied Crimea has been registered
- Government proposes to restore arbitration tribunals in Ukraine
- Parliament may again politicize the competitive selection of the SBI director
- Will the President of Ukraine pay the fine?
- Actions and statements of President V. Zelensky in the area of judicial reform are inconsistent
- Law that partially improves litigation procedures has come into force
- High Council of Justice has failed President Zelensky's judicial reform
- Currently there are no legal grounds for dismissing the NABU Director
- President of Ukraine approved the new structure of the State Bureau of Investigation, Regulations on the Public Control Council and the Procedure for its Formation
- Parliamentary committee did not reject draft laws aimed at increasing the number of detained persons
On February 28, the Centre of Policy and Legal Reform, together with other NGOs, called on the President to submit to Parliament a draft law that would provide for a transparent competitive selection to the High Qualifications Commission of Judges (HQCJ) and unblock the creation of Integrity and Ethics Commission that would allow to dismiss unfair members from the High Council of Justice (HCJ). In addition, the draft law should take into account the reservations of the Venice Commission regarding the unjustified reduction of the Supreme Court, providing for a transparent and clear procedure for assessment of judges’ integrity with the participation of international experts.
2. CPLR Assessment
The new phase of judicial reform, which began after the Law No. 193-IX came into force in November 2019, has not yet been implemented. The HCJ has blocked the implementation of the key reform novelties – the formation of the HQCJ on new principles and the establishment of the Integrity and Ethics Commission. Currently, implementation of this law is at a standstill and requires adjustments due to the adoption of the new law.
CPLR experts are of the opinion that it is important for the President, when drafting a new law on judicial reform, not to repeat the previous mistake when he commissioned the implementation of the reform to the subject of reform.
A number of members of the Parliamentary Committee on Law Enforcement have registered the draft law No. 3062. As stated in the explanatory note, it aims to increase the efficiency of the prosecutor authorities by providing additional incentives for the effective work of prosecutors, sufficient requirements to the work experience of candidates for prosecutors in district, regional prosecutor's offices, the Prosecutor General's Office.
2. CPLR Assessment
Instead, the draft law in no way matches its title. First of all, it is only intended to revive some of the typically Soviet practices in the prosecutor's office.
Return of class ranks (shoulder straps) and uniforms. Uniforms are a hallmark of a well-organized, i.e. managed, service, and have traditionally been introduced to give a unified look to a particular group. Although, first of all, the unified management style is introduced to impose a clear subordination. In order to reinforce the rules of subordination, titles (ranks, grades, etc.) and, in particular, shoulder straps or other distinguishing marks are used.
Earlier in the Ukrainian prosecutor's office, uniforms, class ranks and shoulder straps were nothing but the preservation of this tradition – they were cultivating the belief that the orders from the top were binding, that is, imposing subordination. In other words, this practice substantially undermines the independence of prosecutors, which is a safeguard for their activities, and constitutes a basic preventive measure against selective justice.
Introducing disciplinary liability for failure to comply with the decisions of coordination meetings. This provision is also primarily directed against the guarantees of prosecutors' independence. This is true that coordination meetings are convened and held exclusively by heads of prosecutor offices. Accordingly, decisions at coordination meetings will be a tool for the extra-procedural influence of executives on ordinary prosecutors. Legalizing such practices will result in increased manual management of pre-trial investigations and the course of court considerations.
Establishment of additional qualification requirements for work in prosecutor’s offices. If enacted, such a provision would be a significant impediment to recruiting lawyers who lack prosecutorial experience to work in the prosecutor’s offices. This, in turn, will impede the implementation of a set of prosecutor’s reform measures that have already been initiated. At the same time, the draft law does not contain due substantiation for such a measure and contradicts the vision of reform of the Prosecutor General's Office.
In summary, the implementation of these proposals will significantly weaken the organizational, procedural and other tools designed to ensure the principle of independence of prosecutors and prosecutors as a whole. That is, it will cross out Ukraine's longstanding efforts to implement European standards in the criminal justice field.
On February 25, during the “Reforms Forum: on the Road to Vilnius”, Prosecutor General Ruslan Ryaboshapka stressed that he did not support such a draft law, and that he was glad that the prosecutor's office had managed to abandon archaisms such as class ranks and uniforms half a year ago.
The number of persons convicted under Articles 364, 364-1 and 365-2 of the Criminal Code of Ukraine decreased from 583 persons in 2012 to 2 persons in 2019, which means almost three hundred times, with the number of convicts under these articles being imprisoned from 127 persons to 0 and imposed a fine from 76 to 2.
Consequently, the numerous abuses of power, office and authority have in fact became not punishable, and therefore it is becoming increasingly difficult for officials to refrain from committing such acts.
What preceded this situation? In accordance with the Law of May 13, 2014 №1261-VII, items 3 and 4 of the notes to Article 364 of the Criminal Code of Ukraine were set out in a new wording which excluded the possibility of bringing officials and persons providing public services to criminal liability for abuse of power or official position, if the damage caused is not related to property. Therefore, these abuses, if they caused significant or grave harm to life or health, human and citizen's rights and freedoms, to the legitimate interests of individuals, legal entities or the state, are not considered as crimes at all.
On February 27, the Verkhovna Rada Committee on Law Enforcement submitted a proposal for consideration by the Verkhovna Rada of the Law "On Amendments to Article 364 of the Criminal Code of Ukraine on Specification of Signs of Certain Crimes in the Area of Service" (Reg. No. 2621). The draft law was initiated by the President of Ukraine, who identified it as urgent. Draft Law No. 2621, in respect of substantial damage, returns the wording of paragraph 3 of the note to Article 364 of the Criminal Code of Ukraine to its previous version.
2. CPLR Assessment
As we can see, the current situation needs and can be changed, in particular through the adoption of the draft Law No. 2621. However, this draft law requires further elaboration.
First of all, similar changes should be made to item 4 of the note to Article 364 of the Criminal Code of Ukraine. Perhaps the authors of the draft law just forgot about it.
In addition, in order to bring Article 364 of the Criminal Code of Ukraine in accordance with Article 19 of the UN Convention against Corruption, appropriate abuse should be defined as “the commission by an official of any unlawful act or omission through the exercise of power, office or authority for the purpose of obtaining any undue benefit to him/herself or another natural or legal person or to other personal interests, if it has materially damaged the rights, freedoms and interests of individuals or the state or public interests, or the interests of legal persons, protected by law."
There is also a need to:
1) establish in the Criminal Code of Ukraine a rule according to which any act performed by an official in the specified manner and for the stated purpose is subject to qualification under the article of this Code, which provides for such action, and under the relevant part of Article 364 of the Criminal Code; the punishment for these criminal offenses cannot be imposed by absorbing less severe punishment by a more severe one;
2) exclude the sign “committing a crime using official position” from those articles of the Special part of the Criminal Code of Ukraine where it is provided.
Finally, as an alternative punishment for abuse of power or office, a fine should be provided for in parts 1 and 2 of Article 364 of the Criminal Code of Ukraine amounting to 10 thousand and 25 thousand non-taxable minimum incomes of citizens respectively. Amounts of fines under Articles 364-1 and 365-2 of the Criminal Code of Ukraine should be increased proportionally and in accordance with the provisions of Articles 12 and 53 of the Criminal Code of Ukraine.
On February 18, the Constitutional Court declared unconstitutional the provisions of the Law of Ukraine “On Judicial System and Status of Judges”, which provided for the liquidation of the Supreme Court of Ukraine, a competitive selection for its judges to the new Supreme Court, and the establishment of life-long compensation under the old rules for the retired judges who did not pass the qualification assessment and did not work thereafter for another three years (which is at least twice below the compensation level under the new law on the judicial system).
The provisions establishing the new Supreme Court and appointing judges to it as a result of the competitive selection were recognized as constitutional, as well as the provisions whereby the powers of five-year judges cease after the expiry of the five-year term, and in order to continue working as judges they must participate in a competitive selection on a general basis.
2. CPLR Assessment
The decision of the Constitutional Court will not significantly affect the work of the Supreme Court. The court determined that only the renaming of the highest institution of the judiciary took place, and therefore judges of the Supreme Court of Ukraine should continue to exercise their powers as judges of the Supreme Court. However, some of the judges of the Supreme Court of Ukraine within the competitive selection did not confirm the ability to administer justice in a court of cassation. Probably the Parliament should determine the procedure for transferring judges of the Supreme Court of Ukraine to a renamed court.
Recognition of provisions on life-long financial compensation as unconstitutional in practice could lead to an increase in staff lack in the judicial system due to a new wave of resignations and the absence of a High Qualification Commission of Judges responsible for the selection of new judges. As stated by the CPLR expert R. Kuybida: “After a new wave of resignations, the number of retired judges and those who will remain in employment may equal. The burden of maintaining such a costly and inefficient judicial system can increase social tensions in society.”
A detailed analysis prepared by the CPLR experts can be found at the following link.
On February 19, the Permanent Representative of the International Monetary Fund to Ukraine Goesta Ljungman participating in a macroeconomic debate at the US Chamber of Commerce in Kyiv named the judicial system and the rule of law among areas where Ukraine is lagging far behind Europe. He also described three scenarios of possible development of Ukraine:
1) full-fledged reform, which includes, in particular, overcoming the above gap and GDP growth by 6% annually;
2) partial reforms, in particular, maintaining the gap in the judiciary and increasing the GDP by 4% annually;
3) rollback of reforms, which will result in a population 20% poorer in 20 years. The current pace of reform in Ukraine is a scenario between the second (partial reforms) and the third (rollback of reforms).
2. CPLR Assessment
CPRR expert Roman Smaliuk said: “Goesta Ljungman's position indicates that international partners do not see significant changes in improving the judicial system in Ukraine. This indicates the need for comprehensive reforms in the rule of law, which will influence the economic growth and well-being of Ukrainians".
It should be reminded that the Center's experts developed the Concept of a new judicial reform consisting of five priority measures, including:
1. Reorganization of the bodies for the selection of judges and bringing them to disciplinary responsibility, changing the approach to their formation.
2. Introduction of monitoring of adherence to judicial duties as an additional mechanism for ensuring the accountability of judges.
3. Improvement of the qualification assessment procedures and revision of certain decisions of the previous composition of the HQCJ.
4. Improvement of access to justice, initiating a full-fledged jury trial and revision of sentences of those who were arbitrary convicted.
5. Creation of an Anti-Corruption Chamber of the Supreme Court.
On February 7, a group of People's Deputies from the “Servants of the People” and “Opposition Platform – for Life” factions submitted to the parliament a draft law No. 3032, which stipulates the right of a judge to receive high monthly life allowance, regardless of whether he/she has passed a qualification assessment.
Currently, a retired judge can count on an increased amount of life allowance if he or she has passed the qualification assessment and worked out at least three years after.
2. CPLR Assessment
The authors of the draft law propose to equalize judges who have not passed/passed the qualification assessment. It should be reminded that in 2015, the Ukrainian authorities explained the need for such an assessment by the prevalence of corruption and incompetence among judges, the almost complete lack of confidence in the judiciary among citizens, and negative experience of political interference in the appointment of judges in the past.
Implementation of the proposed changes will result in a significant increase in the budget for the maintenance of judges, some of which would have to be dismissed or were dismissed as a result of a qualification assessment, which clearly distorts the ideas of clearing the judicial corps laid in 2016.
The burden on taxpayers related to the maintenance of retired judges will increase significantly. Increase in payments from the Pension Fund, which is provided by the draft law, is not envisaged in the state budget.
In this regard, it is advisable to reject the draft law.
On February 10, People's Deputies of the “Servant of the People” faction, R. Gorbenko and T. Tarasenko, submitted to the Parliament a draft law No. 3048 on establishing alternative jurisdiction for civil cases under the jurisdiction courts in the temporarily occupied Crimea. Currently, such cases are being considered by courts in Kyiv.
The authors of the draft law propose to establish that if one of the parties to the dispute is a natural person permanently residing in the temporarily occupied Crimea, then any local general court of Kherson region may consider the case at his/her request, and if the case is under the jurisdiction of the court of appeals, it can be submitted to the Kherson Court of Appeal. Such a request may be filed simultaneously with the statement of claim or after the case has been opened.
2. CPLR Assessment
The mechanism proposed by the authors contains some drawbacks. In particular, the right of a party to file a request to refer a claim after the opening of proceedings in practice may lead to abuse of this mechanism to delay the hearing of the case, since in fact the party may file a corresponding request before the court proceeds to the meeting room, which will necessitate a retrial. In addition, such a possibility contradicts the provisions of the Code of Civil Procedure of Ukraine, which stipulates that a case accepted for consideration by a court with observance of the rules of jurisdiction, should be considered by this court even in the case when in the course of proceedings it became the responsibility of another court (part 2 of Article 31).
In general, the idea of improving access to justice for persons permanently residing in a temporary occupied territory is correct. However, the way in which the authors of the draft law No. 3048 attempt to do so requires further elaboration.
On February 10, the Government introduced to Parliament a draft law № 3045 on improving the procedure for the establishment and operation of arbitration tribunals in order to restore confidence in the arbitration tribunal.
The draft law proposes to:
- improve the procedure for registration of permanent arbitration courts (the Ministry of Justice is proposed as the only registration authority);
- establish more strict requirements for organizations where permanent arbitration courts can be formed (non-profit making and at least 5 years of activity before the establishment of the arbitration court);
- extend the powers of the Arbitration Chamber, in particular, to attribute to its powers the establishment of the conformity of the founder of the arbitration tribunal with the requirements of the law;
- expand the jurisdiction of arbitration tribunals, in particular, to return the power to hear real estate disputes.
2. CPLR Assessment
The draft law contains ideas that can really have a positive impact on the development of arbitration in Ukraine, which will eventually reduce the burden on the courts.
Previously, as a result of overly liberal demands, many “pocket” arbitration tribunals were created, which were used for raider seizure of property. Thereafter, the legislator significantly narrowed the jurisdiction of arbitration tribunals, which offset their role as an alternative way of resolving disputes.
Significant increase of the requirements to the founders of arbitration courts in parallel with the extension of their competence will contribute to resolving these problems.
Last week, on February 12, 2020, the Parliamentary Committee on Law Enforcement decided on the candidates who would be recommended to the Verkhovna Rada of Ukraine for inclusion in the selection commission for the competitive selection to the position of director of the State Bureau of Investigation. The Committee's recommendations were given to two of its members – MPs Yuliia Yatsyk and Vladlen Neklyudov (both are members of the "Servant of the People" faction), as well as to Yuriy Ponomarenko, a lecturer at Yaroslav the Wise National Law University (Kharkiv).
2. CPLR Assessment
A similar situation had already taken place during the last competitive selection of the SBI director, when the Verkhovna Rada of Ukraine delegated people's deputies to the respective selection commission (last time, three MPs were delegated). As a result, the last competitive was marked by a number of scandals due to the influence of political actors on the work of the selection commission. After all, the delegation of representatives from the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine and the President of Ukraine was justified solely by the logic of political struggle. Accordingly, the principles for electing an SBI director derived from politics, not law.
In order to avoid such situations, appropriate preventive mechanisms have been introduced in separate laws. For example, the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine" provides that the selection commission for the selection of a director of NABU may not include persons authorized to perform functions of state or local self-government, in accordance with the Law of Ukraine "On Prevention of Corruption". A similar provision is contained in the Law of Ukraine “On Prevention of Corruption”, specifically in the article, which defines the procedure for selection of the Head of the National Agency for the Prevention of Corruption.
Notwithstanding the fact that there is no similar provision in the Law of Ukraine "On the State Bureau of Investigation", the Verkhovna Rada should simply apply a similar approach in relation to the delegates to the selection commission for the election of the SBI director. In other words, the Verkhovna Rada should disagree with the recommendations of the profile committee, and the profile committee should re-submit recommendations on candidates nominated solely from a number of persons who are not authorized to perform the functions of state or local self-government, in accordance with the Law of Ukraine "On Prevention of Corruption".
On February 14, the National Agency for the Prevention of Corruption (NAPC) announced on its web site about the conduct of an examination on the timeliness of submission of a notice of significant changes in the property situation by the President of Ukraine Zelensky V.O.
Earlier, it was also reported that Oleksiy Honcharenko, a member of the European Solidarity faction, addressed the NAPC regarding the violation by the President of Ukraine V.O. Zelensky of legislative requirements on mandatory declaration of spending on vacations, noting that during his stay in Oman the President of Ukraine lived with his wife and children at the 5-star Al Bustan Palace Ritz-Carlton Hotel, which costs about 100-135 thousand UAH per day in a deluxe room, and in general for the holiday period he spent not less than 2.5 million UAH. In addition, the cost of a charter flight is between $ 63,000 and $ 75,000.
On February 15, the press-service of the President of Ukraine announced that during a panel Townhall on Ukraine at the 56th Munich Security Conference, Volodymyr Zelensky urged not to call Ukraine a corrupt state, because that is no longer true.
Finally, the “Schemes” TV show disseminated information that Volodymyr Zelensky had returned from Oman by the same aircraft that on the same day had taken to Oman the Russian Secretary of the National Security and Defense Council Mykola Patrushev.
2. CPLR Assessment
As follows from the note to Article 50 and Part 2 of Article 52 of the Law "On Prevention of Corruption", in case of a significant change in the property status of the President of Ukraine, in particular, making expenditures or receiving a gift in the amount of more than UAH 105.1 thousand, within 10 days from the moment of making the expenditures or receiving a gift he shall be obliged to notify the NAPC in the manner specified by the latter. This information shall be entered in the Unified State Register of Declarations of Persons Authorized to perform Functions of the State or Local Government and published on the official website of the NAPC.
According to Part 2 of Article 172-6 of the Code of Ukraine on Administrative Offenses (CUAO), failure to notify or untimely notification of significant changes in property situation is a corruption related offense, which provides for imposing a fine in the amount from 100 to 200 non-taxable minimum incomes of citizens (UAH 1,700 – 3,400).
The NAPC is authorized to draw up reports on the said offenses, and consideration of the cases on their commission falls under the jurisdiction of local courts (Articles 221, 255 of the Code of Administrative Offenses).
Neither the Law “On Prevention of Corruption” nor the Code of Administrative Offenses make exceptions for the President of Ukraine on the impossibility of holding him administratively liable for corruption-related offenses. Note to Article 172-6 of the Code of Administrative Offenses specifies that offenders under this article are the persons who in accordance with paragraphs 1 and 2 of Article 45 of the Law on Prevention of Corruption are obliged to file a declaration of a person authorized to perform the functions of state or local self-government. Parts 1 and 2 of Article 45 of the aforementioned Law, despite the existence of a rather abstract constitutional rule on the right of inviolability enjoyed by the President of Ukraine (Article 105), specify that the persons referred to in subparagraph 1 of paragraph 2 of part 1 of Article 3 are obliged to file a declaration, and the President of Ukraine is directly mentioned in this subparagraph.
If the said inviolability right implied the President's immunity from administrative responsibility, the Verkhovna Rada of Ukraine should not have included a reference to the President of Ukraine in Articles 3, 50, 56 of the Law “On Prevention of Corruption” when adopting this Law, and the President of Ukraine should not have signed it accordingly. However, this has never happened when this Law was adopted and when it was amended. Therefore, the right of inviolability should be considered as such that implies only immunity from criminal liability, since Article 111 of the Constitution of Ukraine provides that the President of Ukraine may be removed from office by impeachment only in the event of committing a crime.
According to Article 59 of the Law “On Prevention of Corruption”, information on persons who have been held administratively liable for committing corruption-related offenses is entered in the Unified State Register of Persons who have Committed Corruption or Corruption-Related Offenses that is formed and maintained by the NAPC.
On February 5, President Volodymyr Zelensky said: “We have a difficult situation with the courts. It was always very difficult. They are personalities in this country. We are combating this now. … We are with you, I am sure, we will survive until the moment when the judicial system is restarted. At the same time, I know that there are a lot of decent judges in Ukraine, but, unfortunately, there are a lot of problematic cases that do not allow Ukraine to develop, do not allow investments, both Ukrainian and Western”.
Before that, on February 4, the President appointed Tetiana Rozvalyayeva, a former judge of the High Administrative Court of Ukraine, as a member of the High Council of Justice (HCJ). During her office as a judge, she was part of the so-called "Fifth Chamber," created by former President V. Yanukovych to consider lawsuits against him, the Parliament, the High Council of Justice, and the High Qualifications Commission of Judges. As the CPLR experts noted back in 2010, analyzing the decisions of this Chamber: “... we can observe a strong tendency to creating artificial barriers by the court to satisfy the claimants' lawsuits against the highest authorities, both those that have been filed and those which will come in the future." She also passed a decision that led, among other things, to Ukraine’s loss in the European Court of Human Rights in the case “Oleksandr Volkov v. Ukraine”.
Last year, President Volodymyr Zelensky appointed Oksana Blazhivska to the HCJ; she began her judicial career in 2010, when her father was the deputy of two Prosecutors General, first Oleksandr Medvedko and then Viktor Pshonka. The movement "Chesno: Filter the Court" revealed the facts of her failure to declare property rights that is not compatible with the criteria of integrity.
Moreover, in August 2019, the President set up a Legal Reform Commission, which, in fact, is expected to develop a judicial reform strategy for the coming years. However, this commission also included five judges with the findings of the Public Council of Integrity regarding their failure to meet integrity criteria.
2. CPLR Assessment
The President's statements about the complicated situation with the judiciary and the need to restart it are correct. However, his actions in this area are not consistent with the stated goals. The new political power is relying heavily on judges with doubtful reputation. According to the CPLR experts, the judicial system should be rebooted specifically by restarting the judicial governance bodies, which should include experts from the public and international experts with a decisive vote.
On February 8, the Law of Ukraine “On Amending the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Judiciary of Ukraine on Improving the Procedure of Litigation” entered into force.
Key novelties of the Law are:
- establishment of additional procedural filters for admission of cases to the Supreme Court, which may in the future reduce the burden on the Supreme Court;
- establishment of the obligation of the appellate and cassation instances in case of closing the proceedings due to the fact that the case should be considered under the rules of another type of judicial proceedings, and submit it to the competent court of first instance;
- narrowing the possibilities for applying measures to secure a lawsuit, in particular, establishing the inadmissibility of taking measures that result in interference (termination, postponement, suspension) in conducting public competitive procedures held on behalf of the state or territorial community;
- securing exclusive jurisdiction of the Kyiv Economic Court for economic disputes against central executive bodies, regional state administrations, the National Bank of Ukraine and the Accounting Chamber.
2. CPLR Assessment
Earlier, the CPLR issued an opinion on the original version of the draft law, which was partially taken into account.
The Law provides for both positive and negative changes. Introducing additional filters for admission of cases to the Supreme Court can be a positive step, but at the same time it may impair access to court in the context of the failure of the reform of the courts of appeal. In addition, the wording of relevant provisions is too complicated, which does not indicate the high quality of the law.
The legislator's decision to narrow the possibilities of securing a lawsuit also raises concerns, as it could affect the effectiveness of the enforcement of judicial decisions. In addition, the decision to assign the disputes concerning central executive authorities solely with the Kyiv Economic Court is not very successful, since it creates the possibility of manipulating the territorial jurisdiction of cases (in order for a case to be admitted to this court it will only be sufficient to involve the respective body as a co-respondent).
On February 6, 2019, the HCJ adopted a decision “On the Issues of Approval of Personal Composition of the Integrity and Ethics Commission”. In its decision, the HCJ stated that it was impossible to form the personal composition of the Integrity and Ethics Commission due to the fact, that international organizations, which, in the opinion of the HCJ, had the right to submit nominations to the Commission, did not do so within the time limit set by law.
It should be reminded that on November 7, 2019, the Law "On Amendments to Certain Laws of Ukraine Regarding the Activity of Judicial Governance Bodies", initiated by President Volodymyr Zelensky, came into force. Among other things, the law provided for a reboot of the High Qualifications Commission of Judges of Ukraine (hereinafter referred to as the HQCJ) and verification of the current members of the HCJ by the Integrity and Ethics Commission with the involvement of international experts. The law also empowered the HCJ to approve the composition of Commission for the selection of the new membership of the HQCJ, the rules of competitive selection and the composition of the Integrity and Ethics Commission.
On December 26, 2019, a competitive selection to the High Qualifications Commission of Judges (the HQCJ) began, where international organizations were required to delegate their representatives to the selection commission before January 3, 2020, and the applicants were required to submit documents for participation before January 13. As none of the international organizations has submitted their nominations, on January 21st, the HCJ requested international organizations again to submit nominations, having previously extended the deadline for submitting nominations to the selection commission by the international organizations until February 5. However, this time international experts did not propose their candidates to the HCJ. In connection with this, on February 4, the HCJ again extended the deadline for the formation of a selection commission by international and foreign organizations for holding a competitive selection to the HQCJ until March 10.
In order to participate in the formation of the Integrity and Ethics Commission, on November 27, 2019, the United States Agency for International Development and the Embassy of the United Kingdom of Great Britain and Northern Ireland submitted proposals to the HCJ to include international experts to the Integrity and Ethics Commission, which, in particular, was reported by the Official Website of the President of Ukraine.
However, the HCJ decided to reject these nominations because it interpreted the law in such a way that only organizations officially registered in the list of organizations with which Ukraine cooperates in the area of prevention and combating corruption can nominate their members to the Commission.
2. CPLR Assessment
In the Political Points of December 9-16, 2019, the CPLR experts expressed doubts that international organizations were delegating their representatives to the selection commission for the selection of a new composition of the HQCJ. This is because the HCJ, by approving the procedure for the competitive selection, completely neglected the role of international experts, and created the possibility for manipulative selection.
The CPLR experts are of the opinion that another extension by the HCJ of the deadline for submitting candidates to the selection commission is the HCJ’s attempt to shift the blame for the failure of the new HQCJ’ formation to international organizations. It is doubtful that international organizations that have not twice sent their representatives within the deadline set by the HCJ will do so for the third time. A solution would be to adjust the law in order to remove the HCJ from the process of forming a new HQCJ.
It is also clear that the HCJ was not interested in forming an Integrity and Ethics Commission that could potentially threaten the loss of positions for some of the current HCJ members. The law clearly stipulates that only those experts who applied the Public Council of International Experts, formed in accordance with the law on the High Anti-Corruption Court, may be recommended to the Commission. Therefore, the applications submitted to the HCJ met the criteria set by law.
Currently, the only possible way to unblock the formation of the Integrity and Ethics Commission is to amend the law. According to the CPLR experts, the law should be amended to eliminate any opportunity for the HCJ to block the formation of the Integrity and Ethics Commission, and to remove it from participating in the formation of the selection commission for a new composition of the HQCJ.
The Verkhovna Rada registered a draft Resolution on the dismissal of A. Sytnyk from the position of Director of the National Anti-Corruption Bureau of Ukraine (NABU) (Reg. No. 3039 of 07.02.2020). The draft law was initiated by eight people’s deputies from the parliamentary faction of the political party "Servant of the People" and one deputy from "European Solidarity" party.
2. CPLR Assessment
Part 1 of Article 6 of the Law “On the National Anti-Corruption Bureau of Ukraine” states that the NABU Director shall be appointed and dismissed by the President of Ukraine in accordance with the procedure established by this Law, and in the sixteenth paragraph of part 4 of this Article it is emphasized that “Director of the National Bureau cannot be dismissed, and the decree of the President of Ukraine on his/her appointment cannot be revoked except for the reasons stated in this part” (i.e., in part 4 of Article 6 of the Law).
At present, there are no grounds for dismissal of the NABU Director, as provided for in paragraphs 6-12 of Part 4 of Article 6 of the Law, and the provisions of paragraph 2 of Part 1 of Article 13 of the Law "On the National Anti-Corruption Bureau of Ukraine" (according to which a person who has been subject to administrative penalties for committing a corruption offense within the last year or prosecuted for a premeditated crime cannot be appointed to the NABU) are not applicable to the reasons of dismissal of the current head or employee of the NABU.
In addition, the NABU Director is not subject to disciplinary responsibility under the Law "On the National Anti-Corruption Bureau of Ukraine", since there is neither a body that could make a relevant decision on it nor a procedure: the Labor Code of Ukraine cannot be applied because the grounds and the procedure for bringing NABU employees to disciplinary responsibility are stipulated solely by the above Law, and the NABU Director cannot adopt a decision to bring him/herself to disciplinary responsibility based on the principle of nemo judex in causa sua – no one is a judge in own case. According to the Law, the National Bureau is not a central body of executive power, and its Director is neither a member of the Cabinet of Ministers of Ukraine nor the head of a central executive body; therefore, the provisions of paragraph 12 of Part 1 of Article 42, Article 45 of the Law “On the Cabinet of Ministers of Ukraine” on disciplinary responsibility cannot be applied to him/her.
On February 5, the President of Ukraine by his Decree No.41/2020 approved the organizational structure of the State Bureau of Investigation and the Decree No.42/2020 approved the Regulations on the Public Control Council under the SBI and the Procedure for its formation.
According to the Decree, the organizational structure foresees the following innovations: the Personnel Training Institute and the Scientific and Research Institute of Forensic Examinations are being set up in the SBI.
The new Regulations on the PCC extends its term of office to two years, clarifies the procedure for early termination of member's powers, etc. The procedure for the formation of the PCC stipulates that now, in addition to online voting, candidates must write an essay and have an interview with the selection commission.
2. CPLR Assessment
In accordance with the amendments approved by the Law No. 305-IX (December 2019) to the Law of Ukraine “On the State Bureau of Investigation”, the structure of the State Bureau of Investigation, the Regulations of the Public Control Council and the Procedure for its formation shall be approved by the President of Ukraine upon submission of the Director of the State Bureau of Investigation.
As regards the changes to the organizational structure of the SBI, they are positive in nature. First of all, establishing an in-house expert institution is an important step in improving the effectiveness of pre-trial investigation, especially given the Bureau's jurisdiction and the need to address in first place the State Research Expert Forensic Center, which is part of the Expert Service of the Ministry of Internal Affairs of Ukraine (potential conflict of interests).
In terms of changes to the documents governing the activities of the PCC at the SBI, they are conceptually positive. As this body is given significant powers, it is important to strengthen the safeguards of its activities by clarifying the legislative provisions. The PCC at the SBI delegates three members to the Disciplinary Commission of the SBI, the total number of which is five, i.e. the majority of votes are received by the public. Thus, it is a powerful tool for influencing the Bureau. During the previous two convocations of the PCC there was a fierce struggle, in particular against violation of the law, and the Disciplinary Commission was never created. The proposed two-step selection procedure is supposed to minimize the risk of misappropriation of the institute of disciplinary action at the Bureau.
At the same time, it is a matter of concern that the SBI Director is granted powers that are not provided for in the relevant Law (approval of the PCC composition), as well as that new requirements to the PCC members not provided for by the Law are stipulated (for example, 10 years of professional experience). Since the Law on the SBI does not contain such powers or requirements, and the by-law has lesser legal force, they may be subject to appeal in administrative court.
Last Wednesday, on February 5, 2020, the Law Enforcement Committee of the Verkhovna Rada of Ukraine sent back draft laws No. 2611, 2620 and alternative thereto – 2620-1 to the subjects of the legislative initiative for improvement.
These draft laws propose to supplement Part 4 of Article 183 of the Criminal Procedure Code of Ukraine with the additional grounds based on which the investigating judge or the court, when passing an order on the application to a suspect or an accused of a precautionary measure in the form of detention, may not determine for the same suspect or accused an alternative precautionary measure in the form of a bail.
Draft law No. 2611 proposes to extend the said provision of Part 4 of Article 183 of the Criminal Procedure Code of Ukraine to criminal proceedings concerning especially serious crimes in the area of trafficking in narcotic drugs, psychotropic substances, their analogues or precursors; draft laws No. 2620 and 2620-1 – to criminal proceedings concerning serious and particularly serious corruption offenses.
2. CPLR Assessment
According to the explanatory notes to these draft laws, their purpose is to properly prevent the risks that may impede the tasks of criminal proceedings against the listed categories of crimes. At the same time, judicial statistics refute the allegations made by the subjects of legislative initiative. For example, in 2018, only 1.68% of all cases where a precautionary measure was elected in the form of a bail, there was a breach of the duties of the suspected or accused. In other words, the choice of a precautionary measure in the form of a bail does not cause systemic and significant problems for criminal proceedings.
Instead, the subjects of a legislative initiative neglect or pay insufficient attention to the fact that their proposals will result in an increase in the number of persons kept in detention facilities. This is despite the fact that, according to the European Court of Human Rights and other competent authorities, Ukraine has long had a deep and systematic problem with places of detention.
For example, on January 30 this year, the European Court of Human Rights issued a pilot decision in “Sukachev v. Ukraine” case, again emphasizing the structural problem of poor conditions of detention in Ukraine. The ECHR unanimously found a violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights due to the cumulative overcrowding effect, poor lighting and ventilation and sanitary conditions in the cells in which the applicant was held.
The ECHR suggested that this problem cannot be solved solely by increasing the financial allocation to the penitentiary system. Instead, Ukraine should review current law and practice on remand in custody and sentencing, as well as on alternative punishments to imprisonment.
Therefore, the ECHR recommended that alternatives to pre-trial detention be widely used, such as house arrest, restriction on leaving or access to a place without permission, bail or supervision and assistance from an agency appointed by the court. In addition, the ECHR reiterated several times in this decision that prosecutors and other law enforcement officials of Ukraine should be encouraged to reduce the frequency of applications for detention and their extension (except for the most serious cases), and judges should be encouraged to use alternatives to detention as much as possible.
Therefore, in view of the practice of national and international justice bodies, the Law Enforcement Committee should recommend that Parliament rejects these draft laws.