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5 september 2019

Political Points of the CPLR for 29 August – 5 September 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.


Draft Law on Amending the Constitution of Ukraine (on the abolition of the lawyer’s monopoly)

1. CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada of Ukraine the draft Law No.1013 “On Amending to the Constitution of Ukraine (on the Abolition of the Lawyer’s Monopoly)”. The draft was determined to be urgent.

The draft law No. 1013 proposes to amend Article 131-2 of the Constitution of Ukraine, leaving the lawyer's monopoly solely for the protection of persons against criminal prosecution.

We would like to remind that this article have been amended in 2016. Amendments were driven by the need to increase the level of service delivery through the introduction of a certain quality threshold for access to the legal profession, the professional level and the barriers to professional misconduct by lawyers.

The cost of court representation services foreseeably increased. Apparently, this circumstance was a prerequisite for introducing such a draft amendment to the Constitution of Ukraine by the President of Ukraine.

The CPLR experts did not support the introduction of a lawyer's monopoly during the judicial reform in 2016 due to the anticipated problems of providing legal assistance to people as a result of the increased cost of lawyer services, and the lack of lawyers in rural areas.

2. Respective authorities counter-point/argument

According to the Explanatory Note, the draft law proposes to abolish the lawyer's monopoly, namely to exclude the provisions of part four of Article 131-2 of the Constitution of Ukraine, according to which exclusively the lawyer shall represent another person in court. The purpose of the proposed amendments is to ensure everyone’s right for professional legal assistance by abolishing the lawyer's monopoly on providing such assistance.

3. CPLR assessment of the authorities counter-point

At the same time, in view of the logic of the 2016 constitutional reform, the development of the institute of advocacy through the principle of legal certainty (legitimacy of expectations), such a diametrically opposite development of the regulation of relations in this area is debatable. Probably, it makes sense to consider extending the list of exceptions to the general rule on the lawyer’s monopoly. In particular, to introduce possibilities for representation of state and local self-government bodies in courts not only by lawyers or prosecutors, but also by representatives of state and local self-government bodies, and to give the right to represent the interests of individuals in courts of first instance not only to lawyers.

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

Constitution of Ukraine, Law of Ukraine “On Advocacy and Legal Practice”.

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

Extensive discussions with experts and advocates need to be held before the consideration and potential prior approval of this draft law. Amendments to the Constitution require an open discussion and mandatory dialogue with civil society. It is also not clear why the constitutional changes have not been discussed within the Legal Reform Commission set up by the President of Ukraine. The priority areas of work of the Legal Reform Commission are the preparation and submission of proposals to the President of Ukraine on amendments to the Constitution of Ukraine and laws of Ukraine aimed at ensuring the implementation of constitutional norms and principles, namely, the priority of protection of fundamental rights and freedoms of a person and citizen, further development of legislation on the organization of the judiciary and the administration of justice, the improvement of legislation on criminal liability and criminal procedural legislation of Ukraine.

It is also noteworthy that the President has introduced six separate draft laws on amending the Constitution. Considering the Constitution as a comprehensive constituent agreement, the stability of constitutional matter, it is worth considering the possibility of consolidating the constitutional process of amending the Constitution.

 

Draft law on the essential shake-up of the prosecutor's office was submitted to Parliament

1. CPLR expert opinion

On August 29, the draft law No.1032 on the priority measures on reform of the Prosecutor's Office was submitted for consideration by the Verkhovna Rada of Ukraine. The draft law provides for renewal of the staff of the prosecutor's office by suspending the work of the Qualification and Disciplinary Commission of Prosecutors (the QDCP) established earlier and granting its powers to temporary attestation commissions.

The purpose of the draft law is justified, and the full-fledged reform of the prosecutor's office is awaited by Ukrainian society. However, the proposed mechanism has several problems: unreasonableness, violation of the principles of organization of the prosecutor's office, loss of budget funds.

2. Respective authorities counter-point/argument

The need to suspend the QDCP's work is justified by the unsatisfactory practice of its activities and the inability to fully and independently perform the functions assigned to it.

3. CPLR assessment of the authorities counter-point

The main problems of the proposed mechanism:

- unreasonableness of the decision to suspend the QDCP. Neither the analytical studies nor the media have any information about the problems of conducting competitive selections by the QDCP. Therefore, the efforts of the authors of the draft law to preclude the current composition of the QDCP from participation in any new competitions have no objective grounds, as no violations or abuses by the Commission were revealed in the competition process;

- secrecy during the formation of temporary attestation commissions and the removal of prosecutorial self-government bodies (the All-Ukrainian Conference of Prosecutors) from this process, which is a violation of the European principles of participation of professional self-government bodies in the activities of the prosecution bodies implemented in Article 7, paragraph 5 of the Law on the Prosecutor's Office. The draft law proposes that all these issues be resolved by the Prosecutor General of Ukraine;

- violation of the principles of organization of the prosecutor's office. The structure and network of prosecutor’s system is clearly defined in the current Law and its annexes. In the justice system, both the network of courts and the self-governing bodies of lawyers are defined in detail by the provisions of relevant laws. Instead, the draft proposes to delegate this authority exclusively to the Prosecutor General of Ukraine;

- increasing the term for dismissal of prosecutors and the possibility of artificially delaying this process. The current model of disciplinary responsibility and dismissal of prosecutors implies that the relevant decision of the QDCP may be appealed to the High Council of Justice or to a court (the Administrative Court of Cassation and further to the Grand Chamber of the Supreme Court). However, the heavy workload of the HCJ causes the complaints to be considered for a long time, the time of bringing to justice expires, and once the HCJ has considered the case, it can no longer effectively bring to justice or dismiss the prosecutor. The draft law proposes to further complicate this process: now the volume of prosecutorial cases in the HCJ can be increased by 26 times (instead of one QDCP there will be 26 attestation commissions), and the number of judicial instances will double: the dismissed prosecutor will be able to appeal to the district, administrative, appellate courts, the Administrative Court of Cassation and the Grand Chamber of the Supreme Court;

- loss of significant budgetary funds for the training of candidates for prosecutors’ positions. On April 16, another one-year training of 345 candidates for the position of prosecutor in local prosecutor's offices began. Recruitment of prosecutors under the new rules provided for in the draft law will mean the loss of funds already spent on the organization of training, accommodation of candidates, their scholarships and salaries of teachers, etc.

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

Constitution of Ukraine, Law of Ukraine “On the Prosecutor's Office”

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

The draft law should be submitted for review to the Council of Europe experts. It should also be considered at a meeting of the newly formed advisory body under the President of Ukraine – the Legal Reform Commission.

 

The President submitted a number of anti-corruption draft laws to the Verkhovna Rada of Ukraine

1. CPLR expert opinion:

On August 29, the first day of the new convocation of the Verkhovna Rada of Ukraine, the President of Ukraine submitted to the people's deputies a number of draft laws on the functioning of mechanisms for preventing and combating corruption:

- draft law “On Amending the Law of Ukraine “On Prevention of Corruption” concerning denouncers of corruption” (No. 1010);

- draft law “On Amending Article 106 of the Constitution of Ukraine (on establishing the powers of the President of Ukraine to create independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine and the Director of the State Bureau of Investigations)” No. 1014);

- draft law “On Amending the Law of Ukraine “On the High Anticorruption Court” (concerning the commencement of the court's work)” (No. 1025);

- draft law “On Amending Certain Legislative Acts of Ukraine on Ensuring the Effectiveness of the Institutional Mechanism for Prevention of Corruption” (No. 1029);

- draft law “On Amending Certain Legislative Acts of Ukraine concerning Confiscation of Illegal Assets of Persons Authorized to Perform Functions of the State or Local Government, and Punishment for Acquiring Such Assets” (No. 1031).

2. Respective authorities counter-point/argument:

-

3. CPLR assessment of the authorities counter-point:

These draft laws are aimed at eliminating current problems in the area of anti-corruption policy in Ukraine, in particular:

- inconsistency of certain provisions of the Law "On the National Anti-Corruption Bureau of Ukraine" with the provisions of the Constitution of Ukraine;

- the need to ensure proper protection of denouncers reporting the facts of possible corruption or corruption-related offenses and to establish effective safeguards for such individuals. Similar safeguards exist in Ukraine after the Law of Ukraine “On Prevention of Corruption” came into force in April 2015, but due to the lack of legislatively defined mechanisms for implementing the safeguards, they often remained without proper implementation in practice;

- possible overburdening of judges of the High Anti-Corruption Court, which can receive more than 3.5 thousand cases on the day of commencement of this court’s activity (September 5 this year), extremely complicating the work of 38 judges;

- inefficient functioning of the National Agency for Prevention of Corruption and the presence of inappropriate political influence on its officials, which led to the low effectiveness of this body;

- abolition of criminal responsibility for unlawful enrichment by the decision of the Constitutional Court of Ukraine and absence of an effective mechanism for civil confiscation of illegally acquired assets of public servants.

The necessity of resolving each of these problems has been discussed for a long time, therefore these draft laws are relevant. The CPLR experts will produce their opinion on these draft laws in the near future.

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

-

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

At this stage, it is important to strike a proper balance between the expediency of reviewing and adopting the draft laws and their proper review, analysis and discussion, to ensure that these legislative changes are of good quality and in line with international standards and goals of the anti-corruption policy in Ukraine. Therefore, it is of crucial importance to ensure the transparency and openness of consideration of these draft laws, in the first instance by the parliamentary Committee on Anti-Corruption Policy, as well as to consider proposals and comments received during the consideration of the draft laws, including the ones from civil society representatives.

All Political Points

 

Попередня новина 18 september 2019
Наступна новина 23 july 2019