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April

Political Points 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.

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 (Mariana Doboni, Сommunication manager).

Political Points for 29 April – 6 May 2019

Political Points for 15–22 April 2019

Political Points for 8–15 April 2019

Political Points for 1–8 April 2019

 

Political Points for 29 April – 6 May 2019

How to renew the compositionof the main human resources body in the justice system?

1. CPLR expert opinion

In connection with the expiration of the term of office for ten members of the HCJ in early May, significant personnel changes took place in the High Council of Justice (HCJ). 7 new members were introduced to the Council.

Contrary to the constitutional prohibition, for the second time in a row, O. Malovatsky and P. Grechkivsky, elected by the Congress of Advocates, became members of the HCJ. In relation to O. Malovatsky, journalists discovered that in May 2017, the company associated with him received a permission for oil and gas extraction without an auction, and based on this fact, a pre-trial investigation is being carried out. In relation to P. Grechkivsky, a criminal trial is under way  prosecuting him for an attempt to commit fraud (more details in the political points of 11-18.02.2019).

Two members of the HJC, elected by the Congress of Prosecutors, also begun their duties. They are I. Fomin, who is called by the media a lawyer of Y. Lutsenko, and V. Matviychuk, who can also be deemed a person close to Y. Lutsenko, as he is one of the few prosecutors, who remained in a managerial position, after appointment of the latter by the General Prosecutor. The PROSUD project also revealed facts that cast doubt on the legality of the origin of funds for the acquisition of property owned by his family.

Judges L. Ivanova and S. Shelest, elected by the congress of judges, also acquired powers. In relation to L. Ivanova, during the first competitive selection to the Supreme Court, the Public Integrity Council approved a conclusion of non-conformity with the criteria for integrity and professional ethics because of the possible inconsistency of the family's life style with declared income, dishonesty to public and unethical behavior during the administration of justice. As reported by journalists, in 2015, S. Shelest’s mother, who works as an ordinary doctor, presented her a three-room apartment in Kyiv, costing from UAH 20 to 50 million. The fact that at the congress of judges elected L. Ivanova, S. Shelest as members of the HJC and two other members of the Council, who began to fulfill their duties earlier (O. Prudyvus, who prohibited mass protests during the Revolution of Dignity, and N. Krasnoshchokova) was known  before the congress, and the candidates themselves were called as "agreed with Bankova".

Even before (in 2017), the Congress of Judges elected L. Shvetsova to the Council, who has got a conclusion from the Public Integrity Council on non-conformity with the criteria for integrity and professional ethics during the first competitive selection to the Supreme Court, and V. Govorukha, who were called “dark horses” by the activists of the “Chesno” public movement because of the revealed facts of unethical behavior.

That is, the public has claims about the integrity and independence of at least 9 recently elected members of the Council.

Despite the expiration of the term of office of members of the HCJ, who were elected by the Verkhovna Rada of Ukraine and the President of Ukraine, the latter did not fill their quota in the Council. Moreover, the District Administrative Court of Kyiv temporarily blocked the appointment of members of the HCJ by the President of Ukraine. In addition, one position of the HCJ member remains vacant, which must be filled by the congress of scholars.

The above circumstances led to the fact that at present the HCJ operates in the composition of 16 members, instead of 21 stipulated by law.

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

In accordance with the transitional provisions of the Constitution of Ukraine, prior to the election (appointment) of new members of the High Council of Justice, this body acts as a member of the High Council of Justice during their term of office, but which can not last longer than April 30, 2019. The election (appointment) of the members of the High Council of Justice is carried out not later than April 30, 2019.

In accordance with Part 1 of Art. 6 of the Law of Ukraine "On the High Council of Justice" a citizen may be elected to the post of the HCJ member, who, in particular, meets the criterion of political neutrality. Part 4 of the above Article stipulates that members of the Council, in their activities and beyond, must adhere to ethical standards set for a judge.

According to the Code of Judicial Ethics, such standards include the fact that the judge should be an example of the strict observance of the requirements of the law, the rule of law, high standards of conduct (Article 1), and put every effort to make a wise, law-abiding and informed person believe that his/her behavior is impeccable (Article 3).

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

Taking into account the significant problems with the integrity and independence of the newly appointed members of the HCJ, it is expedient to amend the Law of Ukraine "On the High Council of Justice" in order to provide for mandatory verification of candidates for the HCJ on their compliance with the criteria of political neutrality and integrity. The subject of such verification may be, for example, the Public Council of International Experts (PCIE), which demonstrated its high efficiency during the competition to the High Anticorruption Court, and (or) the Public Integrity Council. In this case, only those candidates, for which the PCIE (PIC) has no justified doubts on their integrity, may be admitted to the election/appointment. It is also advisable to foresee that the existence of a negative conclusion is the reason for the early termination of the powers of a HCJ member. In this way, the HCJ, which is the main staffing body in the Ukrainian judicial system, could be provided with a higher quality composition.

 

Political Points for 15–22 April 2019

Possibility of early termination of powers of the Parliament

1. CPLR expert opinion

During the last week of April, the possibility of early dissolution of Parliament by the new President was actively discussed.

2. Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

In accordance with Part 5 of Article 90 of the Constitution of Ukraine, the powers of the Verkhovna Rada of Ukraine can not be terminated earlier by the President of Ukraine in the last six months of the term of office of the Verkhovna Rada of Ukraine. Part 1 of Article 76 of the Constitution of Ukraine stipulates that the constitutional composition of the Verkhovna Rada of Ukraine is four hundred fifty people's deputies of Ukraine elected on the basis of universal, equal and direct voting right by secret ballot for a term of five years. Thus, the term of office of the Verkhovna Rada of Ukraine is 5 years. The Verkhovna Rada of the VIII convocation gained authority on November 27, 2014, consequently the last day of a possible early termination of parliamentary powers is May 27, 2019.

In accordance with Part 1 of Article 104 of the Constitution of Ukraine, the newly elected President of Ukraine enters into office no later than 30 days after the official announcement of the results of the election, from the moment of taking the oath to the people at the ceremonial session of the Verkhovna Rada of Ukraine. As regards the terms of such an announcement, in accordance with Part 14 of Article 86 of the Law of Ukraine "On Election of the President", during the repeated voting, the same terms shall apply as in the first round. That is, according to Part 8 of Art. 83 "the district election commission is obliged to establish the results of voting within the territorial election district not later than on the fifth day after the election day", and "the protocol on the results of voting within the territorial election district shall be transported to the Central Election Commission immediately after signing" . Further, in accordance with Part 7 of Art. 84, the Central Election Commission "shall, within ten days, but not later than on the third day after the receipt of all protocols of district election commissions on the results of voting”, determine the results of the election of the President of Ukraine, which shall be drawn up by the protocol. Then, "not later than the third day after signing of the protocol on the voting results" (Part 4, Article 86), it officially publishes the election results (Part 6, Article 84). In summary, the district election commission and the Central Election Commission have up to 18 days from the date of the election, that is, until May 9.

In accordance with Part 1 of Art. 103 of the Constitution of Ukraine, the President of Ukraine is elected by citizens of Ukraine for five years. Petro Poroshenko took the oath on June 7, 2014, his five-year term expires on June 7, 2019.

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

The Constitution of Ukraine, the Law of Ukraine "On Election of the President of Ukraine", Resolution of the Verkhovna Rada of Ukraine "On the Procedure of Ceremonial Session of the Verkhovna Rada of Ukraine, devoted to the oath of office of the newly elected President of Ukraine".

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

The Verkhovna Rada of Ukraine should determine June 7, 2019 as the date of the ceremonial session of the Verkhovna Rada of Ukraine devoted to the oath of office of the newly elected President of Ukraine. We would like to emphasize that the President's decision on early termination of parliamentary powers on any grounds taken after May 27 is unconstitutional.

 

The Constitutional Court refused to defend its independence

1. CPLR expert opinion

On April 18, the Grand Chamber of the Constitutional Court of Ukraine issued a Ruling on the refusal to open constitutional proceedings in a case on the constitutional petition of 47 people's deputies of Ukraine on the compliance with the Constitution of Ukraine (constitutionality) of the provisions of the second sentence of the first paragraph of part three, second paragraph of part three, part four of Article 208-4 of the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine" dated February 10, 2010 No. 1861-VI. The Ruling is final. According to the people's deputies of Ukraine, who submitted the constitutional petition and the Centre of Policy and Legal Reform, by adopting this decision, the Constitutional Court of Ukraine leaves itself in a potential dependence on the political influence of the Parliament, and refuses to defend its independence.

2. Respective authorities counter-point/argument

Currently, there is no text of the Ruling on the refusal to open the proceedings on the website of the Constitutional Court of Ukraine, therefore it is impossible to establish the grounds based on which the Grand Chamber of the Constitutional Court refused to open the proceedings. Most likely, this was due to the lack of substantiation of the allegations of unconstitutionality of the act, as there are no other legitimate grounds. Unfortunately, the CCU uses the argument "lack of proper justification" to refuse consideration of politically complicated cases, for example, as in the case of refusing to consider the constitutionality of a monopoly on agricultural land.

3. CPLR assessment of the authorities counter-point

People's deputies addressed the Constitutional Court of Ukraine with a request to effectively defend its independence – to recognize unconstitutional the mandatory political support of candidates for the position of a judge of the CCU in Parliament. This is true that the Parliament has approved unconstitutional amendments to Art. 208-4 of the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine", which established that "the right to submit a proposal regarding a candidate for a position of a judge of the Constitutional Court of Ukraine may be exercised by a parliamentary faction (parliamentary group), a group of non-factional MPs in a number not less than the quantitative composition the smallest deputy group". These proposals shall be submitted to the Verkhovna Rada Committee on Legal Policy and Justice. Back in the autumn of 2017, the Parliament ruled that candidates can not nominate themselves for a competition independently. However, this is contrary to Article 148 of the Constitution of Ukraine, which established competitive selection of candidates for the position of the CCU judge. However, the Third Collegium of the First Senate of the CCU refused to open constitutional proceedings, and the similar decision was adopted by the Grand Chamber of the Constitutional Court of Ukraine.

Therefore, the politicized selection of candidates for the position of a Constitutional Court judge remains, which is the issue of dependence of the Constitutional Court of Ukraine and its ability to protect the Constitution, in particular from unconstitutional actions of Parliament.

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

Art. 148 of the Constitution of Ukraine, art. 12 of the Law of Ukraine "On the Constitutional Court of Ukraine", Art. 208-4 of the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine".

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

We call on the Verkhovna Rada of Ukraine to amend Art. 12 of the Law of Ukraine "On the Constitutional Court of Ukraine", Art. 208-4 of the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine" and ensure the implementation of the constitutional procedure for the selection of the CCU judges.

 

President of Ukraine signed the Law on Criminal Offenses No. 7279-d, which received a negative conclusion of the Council of Europe experts

1. CPLR expert opinion

On April 19, the President of Ukraine signed the Law of Ukraine №7279-д "On Amending Certain Legislative Acts of Ukraine on the Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses".

In 2018, experts of the Council of Europe issued a negative conclusion on this document. In particular, it states: "The need for effective response to mass crimes in relation to minor offenses should not tolerate neglecting basic procedural guarantees. Unfortunately, such neglect will be a consequence of the proposed procedure (by the draft law the author's note), which will allow the use of procedural steps before any information is submitted to the Unified Register both in circumstances that have led to past abuses and in other cases in respect of which no provision has been made for the application of appropriate safeguards against such abuse; in addition, it will leave unclear restrictions on the length of the investigation and will create the possibility of putting pressure on suspects to forcibly convict themselves and deprive the party of the protection of fundamental rights "(paragraphs 193, 194 of the Conclusion).

2. Respective authorities counter-point/argument

Parliament passed the Law of Ukraine № 7279-д in general back on November 22, 2018.

3. CPLR assessment of the authorities counter-point

According to the Council of Europe experts, the following provisions of the Law of Ukraine 7279-d should be deemed inadmissible:

1. Strengthening penalties in a number of crimes, which does not meet either the principle of equality or the principle of proportionality. They will in no way contribute to reducing the burden on the pre-trial investigation bodies, as the investigation procedure will remain unchanged for such cases.

2. Introduction of individual units of inquiry may complicate the functioning of the criminal justice system. Introduction of formal differences between the inquiry bodies and the pre-trial investigation bodies will only create unnecessary duplication of powers and adversely affect the effectiveness of investigations.

3. It is inacceptable to admit another attempt to return to the text of the CCP the possibility of conducting inspections, medical examinations, etc., entering information to the Unified Register of Pre-trial Investigations in "urgent cases". Such changes will draw back the criminal justice reform, as they will inevitably lead to violations of the rights of an individual who will in effect be deprived of the guarantee of judicial control over the actions of the inquirers.

4. Extremely short deadlines are unjustified: 72 hours after notification of suspicion – in case a person finds guilty; 20 days – in case a person does not recognize the guilt or there is a need for additional investigation actions; 1 month – in case of submission of a petition for an expert examination. Proposed terms are unrealistic and they will lead to the use of illegal methods of pressure on individuals by the authorities.

5. Excessively reduced periods for consideration of the indictment, combined with the possibility of considering such a conclusion by the court in the absence of the participants. In the event of unconditional recognition by a person of guilt, a judicial review as such may not be carried out.

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

The Constitution of Ukraine, the Criminal Code of Ukraine, the Code of Ukraine on Administrative Offenses, the Criminal Procedure Code of Ukraine.

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

Before the Law comes into force (January 1, 2020) it is necessary to bring its provisions in line with the Conclusion of the Council of Europe.


Political Points for 8–15 April 2019

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.

 

Political Points for 1–8 April 2019

Presidential candidates express their position on further actions in combating corruption

1. CPLR expert opinion:

In early 2019, more than 20 CSOs presented an Anticorruption Agenda for the candidates for the President of Ukraine, which included four main issues: 1) loss of confidence in the leadership of the Specialized Anticorruption Prosecutor’s Office; 2) failure of the NACPs’ leadership to ensure the institution’s effective functioning; 3) constant attacks on the NABU by political elite; 4) transformation of part of the Security Service of Ukraine into a tool for pressure on business and for illegal enrichment.

2. Respective authorities’ counter-point/argument:

On April 6, Petro Poroshenko conducted a meeting with CSO representatives, during which the issues of the Anticorruption Agenda were raised, among others. In particular, according to Daria Kalenyuk, Executive Director of the Center for Combating Corruption, Petro Poroshenko agreed with the need to reset the NACP and the SAP, expressed his support to the NACP Director Artem Sytnyk, and agreed with the need to eliminate the SSU’s authority in the economy area.

The same evening, the other candidate’s (Volodymyr Zelensky) team presented its position on anticorruption policy priorities. They are much broader than the above four issues, and also cover the remuneration for corruption whistleblowers, deregulation, elimination of law enforcement agencies’ pressure on business, elimination of public servants’ immunities, increased sanctions for corruption acts, prohibition on judicial decisions concerning release on bail, etc. It should be noted that Volodymyr Zelensky was the first of all Presidential candidates to support the Anticorruption Agenda.

3. CPLR assessment of the authorities’ counter-point:

Both Presidential candidates who advanced into the runoff round support the public’s priorities in the anticorruption policy area. Poroshenko essentially had agreed that the problems identified by CSOs in the Anticorruption Agenda are relevant and need to be addressed. However, Zelensky, besides supporting these four priorities, had also announced his other ideas, which cover a much broader range of issues, including in corruption prevention area. At least one of these proposals – the elimination of alternative to pretrial detention in the form of bail for persons suspected of corruption crimes – is dubious in terms of adherence to human rights and freedoms. The candidate’s other ideas of the candidate (e.g., elimination of immunity for certain categories of public servants or the establishing of the High Economic Court) require further details before any final conclusions on them could be formulated.

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 legal instruments available in Ukraine:

Both candidates, in the event of their election, may at the very least initiate legislative changes by submitting to Parliament the necessary draft laws and supporting their adoption. Both candidates declare uncompromising approach towards combating corruption, but the sincerity of their positions could only be assessed based on the actions of either candidate in the event of his election rather than by declarative statements.

 

State bodies delegitimizing the HQCJ composition by their actions

1. CPLR expert opinion

Various entities, including state bodies, create grounds through their actions for making the current composition of the High Qualifications Commission of Judges (HQCJ) seen illegitimate.

On April 4, the Ombudsman appointed as HQCJ member M. Sirosh due to the end of tenure of HQCJ member T. Veselska. As a reminder, on March 4, the Ombudsman announced the competition for this position, and on March 29, the competition commission unanimously recognized retired judge M. Sirosh the winner of this competition.

On March 12, the Head of the State Judicial Administration (SJA) announced competition for the position of HQCJ member to replace S. Shchotka, who was appointed in December 2014. The very fact of announcing the competition for the position of HQCJ member suggests that the Head of the SJA believes that S. Shchotka’s tenure has ended.

The issue regarding the length of tenure of HQCJ members, who first were appointed for six-year terms that the legislature later reduced to four years, is not clear-cut from the legislative point of view, as different interpretations are possible.

In addition, according to information from the website of Kyiv District Administrative Court, there are also disputes in the court concerning the lack of authority of HQCJ members M. Mishyn, A. Zarytska, M. Makarchuk, Y. Titov, and V. Ustymenko. According to the plaintiff, the four-year tenure of these members of the Commission has ended on March 29. Earlier, on February 15, the Congress of Advocates of Ukraine dismissed P. Lutsyuk as an HQCJ member appointed under its quota, replacing him with O. Drozdov. On February 19, Rivne District Administrative Court suspended the decision of the Congress of Advocates until the dispute can be adjudicated in court, and P. Lutsyuk continues to participate in the HQCJ meetings.

2. Respective authorities’ counter-point/argument

The actions of the Ombudsman and the Head of the SJA demonstrate their recognition that the tenures of members appointed by these bodies has ended.

The HQCJ has not published an official position regarding the calculation of tenure of the HQCJ members. Members who were appointed in 2014, including the Head of the Commission, participate in the HQCJ meetings, including during competitions to the Supreme Court and the High Anticorruption Court.

On March 25, Kyiv District Administrative Court, in a case unrelated to competitions for positions of HQCJ members, decided in favor of 6-year tenure of HQCJ members, as it existed at the time of their appointment. The Commission, as the third party in the case, expresses the position that the tenure of HQCJ members appointed in 2014-early 2015 lasts 6 years. This decision has not come into force, and the dispute is currently pending before the Appellate Court.

3. CPLR assessment of the authorities’ counter-point

The lack of legal certainty regarding the authority of certain HQCJ members, including its Head, as well as the status of newly appointed members threatens the legitimacy of the Commission's procedures. Taking into account that disputes regarding the legitimacy of the Commission’s members are taking place in the midst of election campaign, there are serious threats of political influence over these processes.

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

According to part 2 of art. 92 of the Law “On Judiciary and Status of Judges” (the version in effect at the time of appointment of HQCJ members in 2014-early 2015), the term of office of an HQCJ member is 6 years.

According to sub-paragraphs 1, 5 of cl. 5 of Section II of Final and Transitional Provisions to the Law “On Ensuring the Right to a Fair Trial” of December 2, 2015, HQCJ members elected by the Congress of Judges of Ukraine, appointed by the Minister of Justice of Ukraine, the Ombudsman, and the Head of the State Judicial Administration of Ukraine exercise their authority for a term of 4 years from the date of their election/appointment (under the Minister of Justice, Ombudsman, and Head of the SJA quotas) or 4 years from the date of entry into force of the Law “On Ensuring the Right to a Fair Trial” (under the Congress of Judges quota).

According to cl. 26 of the Final and Transitional Provisions to the Law “On the Judiciary and Status of Judges” of June 2, 2016, members of the HQCJ exercise their authority until the end of the term for which they were appointed/elected.

Thus, there is an obvious conflict between the provisions of the laws that set the tenure of HQCJ members appointed in 2014-early 2015.

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

Given the length and different scenarios for deciding the cases regarding the term of office of HQCJ members by courts, the co-dependence between judges and HQCJ members, as well as the numerous problems with HQCJ’s performance during the competition to the Supreme Court and the conduct of qualification assessment, a reset of this body seems to be the optimal way forward. It is necessary to consider the possibility of reorganizing the HQCJ in a way that would allow to include as members of judicial selection and assessment bodies more civic sector representatives trusted by the society (e.g., human rights defenders, journalists, representatives of specialized CSOs) than judges themselves for the period of reform implementation. Participation of international organizations’ representatives in these bodies will strengthen the transparency and credibility of the process in the eyes of international community.