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16 april 2019

Political Points of the CPLR for 8–15 April 2019

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.

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to doboni@pravo.org.ua.


Formation of the Public Control Council at the SBI has been blocked

1. CPLR expert opinion

Formation of the new Public Control Council of at the State Bureau of Investigations was scheduled for April 18. Public organizations have nominated 54 candidates to participate in the competition, which was supposed to be conducted through Internet voting this time.

The new procedure for the formation of PCC under the SBI was approved by the Government Resolution of March 13, 2019, on the basis of proposals from public and international organizations, and taking into account the positive practice of functioning of similar councils in other state bodies, including new anti-corruption institutions.

However, on April 12, the District Administrative Court of Kyiv reported to have received a lawsuit against the Cabinet of Ministers of Ukraine regarding unlawfulness of the mentioned Resolution of the Government on the procedure for the formation of the PCC through online voting.

The court, having opened the proceedings under this lawsuit, simultaneously terminated the effect of the contested Government Resolution and prohibited the SBI from conducting a competition to the PCC among the representatives of the public.

The preparatory meeting on this lawsuit is scheduled by the court for May 23.

2. Respective authorities counter-point/argument

The State Bureau of Investigations issued a statement that the court's decision to secure the lawsuit would necessarily be fulfilled, while the formation of the PCC would be postponed.

At the same time, the SBI declared its interest in a powerful and effective Public Control Council, which will adhere to legislation and through the criticism and support would help it to be an independent and modern law-enforcement agency. Therefore, the leadership of the SBI urged NGOs not to stay away from the establishment of a new Council.

3. CPLR assessment of the authorities counter-point

The decision of the court is mandatory for the SBI. At the same time, the Bureau should legally defend its position on the lawfulness of changing the formation procedure of the composition of the Public Control Council.

In accordance with the provisions of the Law "On the State Bureau of Investigations", we believe that the Government within its competence is entitled to determine any form of voting for candidates for the Public Control Council (including online voting).

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

The Code of Administrative Justice of Ukraine, the Law "On the State Bureau of Investigations".

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

The Government and the SBI should use all legal arguments and within the litigation procedure prove the legality of the revision and updating of the procedure for the formation of the PCC at the SBI.

 

On April 11, 38 judges of the High Anticorruption Court were appointed

1. CPLR expert opinion

On April 11, 2019, the President of Ukraine signed a Decree appointing 38 judges of the High Anticorruption Court. The submission on the appointment of judges was made by the High Council of Justice on March 18 and 28 of this year on the basis of the recommendations of the High Qualifications Commission of Judges.

Although there were 39 vacant judges’ positions available in the High Anticorruption Court, currently 38 of them have been filled, as one candidate for the position of judge in the Appeals Chamber of the High Anticorruption Court announced the withdrawal of his application for participation in the competition after the recommendation of the HQCJ on his appointment as a judge.

2. Respective authorities counter-point/argument

Currently, preparatory measures are being implemented to ensure functioning of the High Anticorruption Court. In particular, the former premises of Pechersk District Court of Kyiv were temporarily allocated for it. Upon completion of all necessary repair and preparatory works in the two premises allocated for the High Anti-Corruption Court and the Appeals Chamber of this court, the court will start working there. Meanwhile, the trainings for judges are held on specific issues of criminal law and criminal process, the organization of the court activities, etc., with the participation of the CRLR experts, among others.

3. CPLR assessment of the authorities counter-point

Appointment of the judges of the High Anticorruption Court is the final stage of almost three-year epic story of this court’s creation. The idea of ​​introducing specialized anticorruption courts or specialized judges was first expressed by OECD experts in the spring of 2015. Establishment of the High Anticorruption Court as a specialized court was envisaged by the new wording of the Law "On Judicial System and Status of Judges", adopted in June 2016. Subsequently, a wide range of people, including representatives of civil society and international institutions, actively defended the idea of ​​setting up this court as soon as possible and the need to involve international experts in the election of its judges. In June 2018, the Law "On the High Anticorruption Court" was passed, and in August, the acceptance of documents for the competition for the positions of judges in the HAC has started. The appointment of judges of the High Anticorruption Court opens up the opportunity to start the court’s operation after the completion of all organizational and preparatory measures, holding of the assembly of judges and adoption of their decision on the date of commencement of the court’s work.

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

Criminal Procedure Code, the Law "On Judicial System and Status of Judges", the Law "On the High Anticorruption Court", the Law "On the Establishment of the High Anticorruption Court".

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

During the next 30 calendar days after the appointment of judges to the High Anticorruption Court, the elderly judge convenes an assembly of judges of the High Anticorruption Court to decide on the starting date of the High Anticorruption Court’s operation, the organizational issues of the court's activity and the election of investigating judges. The High Antiсorruption Court will start its activity from the date determined by the decision of the meeting of this court’s judges. The relevant decision of the judges' meeting should be published on the web portal of the judiciary and in the newspaper "Holos Ukrainy".

One of the first issues, which the judges of the High Anticorruption Court are likely to face, is the criminal jurisdiction of this court. The design used in Art. 33-1 of the CPC, which defines the substantive jurisdiction of the High Anticorruption Court, allows different interpretations of the requirements of this provision.

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Попередня новина 15 may 2019
Наступна новина 11 april 2019