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20 february 2019

Political Points of the CPLR for 11–18 February

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process 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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Dubious decisions by the Congress of Advocates may affect legitimacy of all personnel-related decisions for the judiciary

1. CPLR expert opinion

On February 15, 2019, the Congress of Advocates of Ukraine took place. The agenda included the election of two members of the High Council of Justice (HCJ) and one member of the High Qualification Commission of Judges (HQCJ), whose term ends in 2019.

The current HCJ members – P. Grechkivsky and O. Malovatsky – decided to participate in the election and, with the support of the delegates at the Congress (161 and 142 votes out of 178, respectively) were reelected. It is due to the participation of these individuals in the election that a group of Parliament members appealed to the Constitutional Court of Ukraine regarding the interpretation of the constitutional provision that the same person may not serve as the HCJ member for two terms in a row.

According to the CPLR experts’ opinion, neither P. Grechkivsky nor O. Malovatsky should have been elected to the HCJ, given the mentioned constitutional limitation. The fact that they were first elected to the former High Council of Justice does not suggest they are not covered by this prohibition, given that the new HCJ was created precisely through reorganization of the former HCJ.

In addition, the Congress of Advocates of Ukraine issued a vote of no confidence and dismissed P. Lutsyuk as a member of the HQCJ, as well as elected a new member of the Commission – O. Drozdov, who served as the former head of the High Qualification and Disciplinary Commission of the Bar.

The media versions regarding the grounds for such decision differ. Thus, according to some reports, the basis for such decision was the fact that “during his term in the HQCJ, he was prohibited from working as an attorney and participating in the bar community bodies, but he nevertheless participated in the bar conference, which indicates that he illegally combined work as a member of the HQCJ with bar activity”. Instead, according to the Lb.ua report, the reason for putting this issue up for vote was forgery of his attorney’s certificate. Reports also mention that judges invited to the Congress expressed their dissatisfaction with P. Lutsyuk’s activities.

Based on media reports, it is unclear which of the legal grounds was applied to justify P. Lutsyuk’s dismissal. It seems that no one tried to establish the existence of proper grounds for dismissal, and P. Lutsyuk himself did not participate in the Congress.

According to the CPLR experts’ opinion, the fact that the subject of P. Lutsyuk’s removal from the Commission was placed on the agenda based on a verbal submission and that P. Lutsyuk himself was not given the opportunity to make an explanation gives reasons to doubt the legitimacy of the Congress of Advocates actions in this situation. In addition, the early termination of P. Lutsyuk’s tenure may partially block the operation of the HQCJ at present, since the issues regarding his dismissal and the ability to perform his functions, such as participating in interviews with candidates to the Supreme Court, remains unsolved.

2. Respective authorities counter-point/argument

As of February 18, 2019, the HCJ and the HQCJ did not respond to these decisions of the Congress of Advocates in any way. However, on February 18, 2019, the previously announced interviews with candidates to the Supreme Court that were supposed to be conducted by the Commission’s panel of which P. Lutsyuk was a member did not take place.

3. CPLR assessment of the authorities counter-point

The CPLR experts emphasize that the turnover of the HCJ members is an important safeguard of ensuring the independence of this body, as well as a way to prevent the HCJ members from using their authority for their own purposes and from the formation of judicial membership controlled by it.

The previous Law “On the High Council of Justice” provided that a person may be appointed a member of this body for only one term. The new Law "On the High Council of Justice" similarly affirmed that membership in the HCJ for two terms in a row is unacceptable.

Given the serious threat to the legitimacy of the HCJ and the HQCJ activity posed by the decisions of the Congress of Advocates, P. Grechkivsky, O. Malovatsky, O. Drozdov and P. Lutsyuk should abstain from participation in the activity of these bodies before legitimacy of these decisions is verified by a court.

4. Related legislation/instructions which require the authorities act in a certain manner

According to sec. 5 of Article 131 of the Constitution of Ukraine, the same person may not serve as the HCJ member for two terms in a row. Sec. 2 of Article 5 of the Law "On the High Council of Justice" contains a similar restriction.

The Law “On the Judiciary and Status of Judges” sets out an exhaustive list of grounds for dismissal of a member of the HQCJ. The authority that elected the member of the Commission may dismiss him/her from office only in case of:

1) identification of circumstances regarding his/her failure to comply with the law’s requirements;

2) significant violation of requirements established by the legislation on prevention of corruption;

3) failure to participate in the Commission’s work during one full calendar month without valid reasons or repeated refusal to vote on issues under consideration.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The challenging situation that has developed in connection with the personnel decisions by the Congress of Advocates can only be resolved through repealing these decisions by a court.

In addition, the events surrounding the Congress of Advocates and its outcomes have, once again, proven the need for reforming the system of advocates self-government and adoption of the draft law No. 9055 “On the Bar and Advocate Activity”. Previously, the Reanimation Package of Reforms has already called for this back in December 2018.

 

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