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6 june 2019

Political Points of the CPLR for 27 May – 3 June 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.


 

Political Points for 27 May – 3 June 2019

Constitutional Court of Ukraine opened the proceedings on the unconstitutionality of the dissolution of the Parliament

1. CPLR expert opinion

On May 24, people's deputies of Ukraine raised the issue of unconstitutionality of the Presidential Decree on early termination of parliamentary powers and the appointment of early elections before the Constitutional Court. Experts of the Centre of Policy and Legal Reform support this decision and share the opinion on the unconstitutionality of the Decree.

2. Respective authorities counter-point/argument

Petition was submitted to the Constitutional Court and has already been assigned to the judge-speaker. On May 29, 2019, the panel of the Constitutional Court opened the constitutional proceeding in the case. On June 4, the session of the Grand Chamber of the Constitutional Court determined an oral form of constitutional proceedings in the case under the constitutional petition and recognized constitutional proceedings as urgent. Consideration of the case is scheduled on June 11 at 10-00.

3. CPLR assessment of the authorities counter-point

It is of crucial importance that the Constitutional Court issues a Decision before the day of voting, otherwise, if the unconstitutionality of the presidential decree on early termination of parliamentary powers and appointment of early elections will be determined, the legality and, as a consequence, legitimacy, of the next convocation of Parliament will be in jeopardy. It is important to prevent such a development of events. Right now, the Constitutional Court, as the only body of constitutional jurisdiction, should take a proactive position and resolve the conflict between the Parliament and the President. Reaching the point when the political crisis will turn into a constitutional one is unacceptable.

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

The Constitution of Ukraine, the Law of Ukraine "On the Constitutional Court of Ukraine".

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

The CCU should adhere to the one-month term for the consideration of urgent cases and in accordance with Article 75 of the Law of Ukraine "On the Constitutional Court of Ukraine" adopt the Decision by June 29.

Attack on the HQCJ continues. In the frames of a civil case, the judge to be subject to assessment, prohibited the HQCJ to carry out an assessment

1. CPLR expert opinion

On May 27, 2019, I. Shepitko, the judge of the Suvorovsky District Court of Odessa, ruled on securing a claim in a civil case under a lawsuit of the High Qualifications Commission of Judges of Ukraine and a number of individuals regarding the misrepresentation of information, obligation to refute the invalid information, the recognition of actions as violating the right to a fair trial and the obligation to terminate them. By means of the said ruling the judge prohibited Kozyakov S.Y., Shchotka S.O., Zaritska A.O., Makarchuk MA, Mishyn M.I., Titov Y.G., Ustimenko V.E., Veselska T.F., as well as the HQCJ, as an entity, on behalf of which these persons act, to perform any actions on conducting a qualification assessment until the resolution of the case in essence. The ruling contains no rational justifications.

Having secured a civil claim by his ruling, the judge created the obstacles to the HQCJ in the exercise of its authority.

The judge, having opened the proceedings on the invalidation of information about the term of office of the HQCJ members, by ignoring the rules on the determination of jurisdiction, has secured the claim in a way that paralyzed the activities of the state body.

On May 29, 2019, the Odessa Court of Appeals suspended the effect of the ruling by I. Shepitko, putting forward the following grounds: "The very fact of the absence in the national legislation of Ukraine of a clear procedure for the effective and timely suspension of arbitrary court decisions adopted in the course of securing a claim, can not create reasonable obstacles for a court of appeals to prevent them from being enforced by terminating the effect of such decisions." That is, the Court of Appeals actually assumed that the ruling of Judge I. Shepitko was arbitrary.

We would like to remind that earlier in the political points dated 1-8.04.2019 and 20-27.05.2019, we reported on the facts of different entities’ actions that create the grounds for considering the current composition of the HQCJ to be unlawful.

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

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

According to Art. 92 of the Law of Ukraine "On the Judicial System and Status of Judges", the HQCJ is a state body for judiciary governance, which operates on a permanent basis in the justice system of Ukraine. Disputes with the HQCJ should be considered in accordance with the rules of administrative rather than civil proceedings. Lawsuits regarding appeals against decisions, actions or omissions of the HQCJ fall under the jurisdiction of the Supreme Court in accordance with Part 4 of Art. 22, Art. 266 of the Code of Administrative Proceedings of Ukraine. The law (part 3 of Article 151 of the Code of Administrative Proceedings of Ukraine) prohibits securing of a lawsuit by issuing an injunction for the HQCJ to take certain actions.

It follows from the contents of the ruling, that the judge considered a defamation dispute regarding the dissemination of information, which is incorrect, in the opinion of the claimant, about the existence of a six-year term of authority of the HQCJ members. Instead, securing of the lawsuit concerned the prohibition to the HQCJ members to exercise their powers that, in accordance with the provisions of Article 19 of the Code of Administrative Proceedings of Ukraine, falls into disputes, which are subject to the jurisdiction of administrative courts. In addition, the enforcement measure elected by a judge, was in no way relevant to the subject of the claim and did not affect the possibility of resolving the dispute in essence. Consequently, the judge, acting arbitrarily within the framework of a civil dispute, has satisfied the claim, which was to be decided by another court under the administrative procedure. There are also grounds to claim that in this case the territorial jurisdiction was artificially changed. In particular, in order to get the case to the Suvorovsky District Court of Odessa, the claimant indicated his neighbor as one of the co-defendants.

In addition, as it follows from the agenda of the HQCJ meetings, an interview with judge I. Shepitko should take place on June 4, 2019, that is, one week before the judge's ruling on securing the claim. Consequently, the motive for the judge's decision could be the intention to avoid qualification assessment by creating an artificial conflict of interests with the members of the HQCJ.

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

We believe that in this case there is every reason to initiate a disciplinary proceeding against a judge and also to file a statement on a crime with the State Bureau of Investigations for the introduction of information about the criminal offense into the Unified Register of Pre-trial Investigations, in accordance with Article 375 of the Criminal Code of Ukraine – issuing by a judge (judges) of a deliberately unjust sentence, decision, decree or ruling.

 

Director of the SBI dismissed the leadership of the territorial department contrary to the requirements of the Law

1. CPLR expert opinion

On May 28, the Director of the State Bureau of Investigations dismissed from the office the following officials: the Director of the Territorial Department in Poltava, the Head of the Second Office for Pre-trial Investigations, the Head of the Planning and Finance Department and the Head of the Operation Support Department. They were dismissed due to inconsistency with their positions following the probation period provided for by the Law "On Civil Service".

2. Respective authorities counter-point/argument

The Director of the SBI immediately commented on the above decision to dismiss officials, stating that "the probation period is a normal practice both in state bodies and in private companies".

3. CPLR assessment of the authorities counter-point

Such a dismissal procedure does not meet the requirements of the Law "On the State Bureau of Investigations". In particular, the Law states that the director of the SBI shall appoint and dismiss from office the directors of territorial bodies, heads of departments of the central apparatus of the SBI upon submission of the Competition Commission (Article 13). In addition, the Director must approve such a submission with his deputies (Paragraph 1 of Part 9, Part 2 of Article 12 of the Law). The Director of the SBI did not bring legal arguments in favor of his position. Moreover, the First Deputy Director Olga Varchenko made a public statement against his decision.

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

The Constitution 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 Director of the SBI should cancel the said decisions and further resolve personnel issues exclusively in a manner determined by the law.

 

President of Ukraine expects tangible results in the investigation of corruption crimes

1. CPLR expert opinion

On May 31, the newly elected President of Ukraine Volodymyr Zelensky met with Director of the National Anti-Corruption Bureau of Ukraine Artem Sytnyk and Head of the Specialized Anti-Corruption Prosecutor's Office Nazar Kholodnytsky. As stated on the official website of the President, the purpose of the meeting was to discuss proposals for improving the interaction of specialized anti-corruption bodies, seeking ways to increase the efficiency of their work.

The President assured that he would ensure the independence of these bodies and protect them from interference in their activities, and also noted that "the presence of tangible results in the investigation of resonant corruption crimes over the next three months will be an indicator of the ability of the SAP and the NABU to respond to the expectations of Ukrainians."

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

In general, the position of the newly elected President is correct, but only the actions of the President himself and his team members can testify to the extent to which he is ready to adhere to the positions he has declared. Presently, one of the first steps of the President has demonstrated his support for specialized anti-corruption bodies: Volodymyr Zelensky instructed the Ministry of Foreign Affairs to immediately inform the Council of Europe and the UN about the authority of the NABU to carry out international cooperation in criminal proceedings with the competent authorities of foreign states. Experts from the USA, Denmark and Ukraine, who carried out an expert analysis of the NABU's activity, expressed this recommendation a year ago.

It is difficult to assess the realism of the President's demand to the leadership of the NABU and the SAP to demonstrate tangible results in the investigation of resonant corruption crimes over the next three months. Obviously, such a short period may not be sufficient for a complete, comprehensive and unprejudiced investigation of complex corruption schemes. Three months may not be enough to collect all the necessary evidence. Another fact that complicates the situation is that it is not clear what will be "the achievement of tangible results" in the understanding of the President – notification of individuals about suspicion of committing corruption crimes, sending indictments to the court or sentencing against the persons concerned? Moreover, earlier, the NABU and the SAP demonstrated their ability to effectively investigate criminal proceedings against high-ranking officials (although it seems that the dynamics of such investigations has somewhat deteriorated over the last year), however, the sentences in resonant proceedings are still not issued due to excessive length of trial.

At the same time, the statement of the Acting Head of the Security Service of Ukraine Ivan Bakanov, who said that the President had set the task "to overcome corruption" to the SSU is of somewhat concern. This may lead to duplication of the functions of various pre-trial investigation bodies and does not correspond to the objectives of the SSU's reform, according to which this body should be deprived of irrelevant functions. One of them is combatting corruption. A more effective step would be to eliminate the problems, due to which at present there is no effective interaction between the NABU and the SAP with the SSU, in particular during the conduct of secret investigative (search) actions. For example, it is extremely important to ensure the effective cooperation between the NABU and the SSU in the course of the wiretapping activities and eliminate the opportunities for information leakage.

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

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

The President should adhere to the positions declared by him on the comprehensive support of specialized anti-corruption bodies and ensuring their independence. The first step to support the NABU has already been made and the presidential team should not stop with it.

The NABU and the SAP should intensify their investigations into high-level corruption crimes, however, the high level of investigation efficiency should not be achieved at the cost of incompleteness and deterioration in the quality of pre-trial investigations.

The priority in the SSU’s activities should be not to combat corruption in isolation from all other bodies, but to provide the necessary support to detectives of the NABU and prosecutors of the SAP, in particular in terms of withdrawal of information from transport telecommunication networks and elimination of opportunities for information leakage on the conduct by the NABU detectives of pre-trial investigation of specific corruption crimes.

Subsequently, the President could propose the adoption of a new Anticorruption Strategy, which would define the main goals and priorities of this state policy for the period of his authority. Attention should also be paid to restoring confidence and enhancing the capacity of the National Agency for the Corruption Prevention and the SAP.

All Political Points

 

 

Попередня новина 16 july 2019
Наступна новина 5 june 2019