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February

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 media@pravo.org.ua.

Political Points for 25 February  4 March

Political Points for 11-18 February

Political Points for 4–11 February

Political points for 28 January – 4 February 

 

Political Points for 25 February – 4 March

Article of the Criminal Code on illegal enrichment was recognized unconstitutional by the Constitutional Court

1. CPLR expert opinion

On February 26, 2019, judges of the Constitutional Court adopted a decision on the unconstitutionality of Article 368-2 of the Criminal Code, which provided for criminal liability for illegal enrichment. According to the media, four judges voted against this decision, and individual opinions of two of them have already been made public.

The CPLR experts are convinced that even despite some drawbacks of the design of this article, there were no grounds to declare it unconstitutional. Such a conclusion was provided earlier upon request of the reporting judge of the Constitutional Court in a case under the constitutional petition of 59 people's deputies of Ukraine on the compliance of Article 368-2 of the Criminal Code of Ukraine with the Constitution of Ukraine (constitutionality). Previously, experts involved by the EU Anticorruption Initiative in Ukraine expressed a similar position.

Decision of the Constitutional Court has led to the situation when 65 criminal proceedings of NABU and SAP concerning illegal enrichment are subject to closure. This number includes 4 cases under this article that were earlier submitted to the court. In accordance with Article 50 of the Law "On Prevention of Corruption", the National Agency for Corruption Prevention carries out comprehensive inspections of the declarations of officials, which include, in particular, verification of the presence of signs of illegal enrichment, but after the adoption of the Constitutional Court's decision, the Agency has virtually no definition of what is considered "illegal enrichment" and what criteria should be applied for the verification of declarations for this purpose.

2. Respective authorities counter-point/argument

The Constitutional Court’s decision states that the wording of Article 368-2 of the Criminal Code, which established criminal liability for illegal enrichment, contradicts the principle of presumption of innocence of a person, violates the right of a person to not testify against him-/herself, and the article itself, in the opinion of the judges of the Constitutional Court, does not correspond to the principle of legal certainty.

3. CPLR assessment of the authorities counter-point

The CPLR experts repeatedly denied all the aforementioned statements. Article 368-2 of the Criminal Code in its wording, which came into force in April 2015, has a very similar content to Article 20 of the UN Convention against Corruption, which states that intentional illegal enrichment, that is, a significant increase in assets of a public official, which exceeds his/her legal income and which can not be reasonably justified, is recognized as a crime. However, at the same time, the Verkhovna Rada deliberately formulated the Ukrainian version of the article of the Criminal Code in such a wording that this article would differ from the article of the Convention, in order to avoid imposing the burden of proof on the suspect or accused.

Constitutional Court’s arguments can easily be refuted. First of all, the violation of the presumption of innocence principle does not occur, since the recognition of the person's guilt takes place only on the basis of the conviction of the court. Pre-trial investigation bodies and the prosecutor's offices should ensure a thorough examination of the case circumstances, having checked all possible versions of the lawfulness of the grounds for acquiring assets by the official, and only if none of the versions has been proven, that would give rise to the criminal liability for the acquisition of significant amounts of assets , the legality of which sources of origin has not been confirmed.

Criminal investigation procedure, including illegal enrichment, is determined by the Criminal Procedure Code, which does not contain any special procedures for criminal proceedings against illegal enrichment, and therefore the burden of proof of the guilt of a person lies exclusively with an investigator and a prosecutor; a person has the right to remain silent and not to testify against him-/herself, but retains the right to provide appropriate and admissible evidence in his-/her defense. All doubts about the provability of the person's guilt are interpreted in his-/her favor, and the guilt of a person must be proved by the prosecution party beyond the reasonable doubt.

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

Article 20 of the UN Convention against Corruption; Articles 62, 63 of the Constitution; Article 368-2 of the Criminal Code; Articles 17, 18, 20, 22 of the CPC; Article 50 of the Law "On Prevention of Corruption".

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

Since the Constitutional Court's decision is final and is not subject to appeal, it is necessary, in the light of this decision, to develop legislative amendments to the Criminal Code concerning criminal liability for illegal enrichment, and the article itself should be formulated in the new wording. Two draft laws on the introduction of a new article to the CC, presented earlier by President of Ukraine and the people’s deputy, do not comply with the provisions of Art. 20 of the UN Convention against Corruption.

Presidential draft law contains two key disadvantages. First, it is proposed to establish a criminal liability for "acquiring ... property of a large amount of assets without legitimate grounds", but it will be virtually impossible to bring a person to liability under this article, since in the vast majority of cases, the acquisition of assets takes place on lawful grounds (for example, on the basis of a contract for the sale of property). It is not only the issue of whether the right to property has been acquired legally, but also whether the legal income of an official was sufficient to acquire ownership of certain property. Secondly, in the proposed wording, the crime is clearly distinguished from two other crimes: "... in the absence of signs of abuse of power or office, or of signs of acceptance of a proposal, promise or receipt of an unlawful benefit by an official." It is unclear why the distinction was made only with these two crimes, and all other corruption crimes (committed through the use of the official position and related possibilities to obtain an unlawful benefit) remained unconsidered.

Wording of another draft law provides for criminal liability for "acquiring ... property of a large amount of assets, when the illegality of the grounds for such acquisition has been recognized by the court". Firstly, implementation of such a procedure will take long time, since in order to bring a person to criminal responsibility, consideration of circumstances within the civil justice will be required. Secondly, criminal proceedings recognize the prejudice of only those court decisions, which establish violation of human rights and fundamental freedoms, when the court decides on the admissibility of evidence. It is unacceptable to make the execution of criminal proceedings depend on civil proceedings.

Now, the experts should put forward their suggestions and propose such a wording for the article of the Criminal Code, which, on the one hand, would be as close as possible to the international standard, but, on the other hand, would be in accordance with the Constitution and the decision of the Constitutional Court.

Due attention should also be paid to the possibility of confiscation of public servants’ assets, when the legality of their sources is not confirmed by evidence, within the framework of civil proceedings. This practice has shown its efficiency in many countries, but in Ukraine the confiscation of unjustified assets is not effective, since it depends on the conviction by a court in relation to a person for committing a corrupt crime or legalization of proceeds from crime. The scope of persons whose assets can be confiscated in this way only covers public servants themselves. The package of legislative changes to the Civil Code, the Civil Procedure Code, and anti-corruption legislation will make it possible to turn the civil confiscation instrument into an effective tool for counteracting the acquisition of unjustified wealth by officials.

 

Political Points for 11-18 February

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.

 

Political Points for 4–11 February

NACP started operating a register of persons who committed corruption and corruption-related offenses

1. CPLR expert opinion

On February 4, 2019, the National Agency for Corruption Prevention finally launched the Unified State Register of Persons who committed Corruption and Corruption-Related Offenses. Prior to this, officials of the Ministry of Justice of Ukraine were in charge of the Register.

This register allows finding out all court decisions that have come to legal effect in relation to persons who committed corruption and corruption-related offenses. Search can be done by the person's name and surname or by the article of the Criminal Code or Code of Ukraine for Administrative Offences.

Information from this Register will be used primarily for special checks before a person comes to the public service, as well as for inspection of persons participating in public procurement procedures.

In addition, the Register should help to analyze information about the persons under prosecution in order to identify the most vulnerable sectors, the conditions conducive to committing corruption and corruption-related offenses.

2. Respective authorities counter-point/argument

Maintenance of this Register by the National Agency for Corruption Prevention is foreseen by the Law of Ukraine "On Prevention of Corruption". However, almost three years after the appointment of the leadership and start of the NACP, the Ministry of Justice of Ukraine continued to operate this Register. In 2018, the purchase of services for the development of the appropriate software for the register took place. As it is seen, all information accumulated by the Ministry of Justice of Ukraine for the entire time of operation of the relevant register has been transferred to the NAPC Register. Currently, an automated analysis of the register information is not possible in the open access, and the search information is limited to only 50 first records.

List of offenses identified as corruption or corruption-related is imperfect, which is why the register data are incomplete.

3. CPLR assessment of the authorities counter-point

In order for the Register to begin performing its important analytical function, it is necessary to make technical improvement of its software so that the number of records corresponding to the search query is displayed in any number; in addition, the creation of an automated data analysis module that will be available to all users free of charge is needed.

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

Paragraph 9 of Part 1 of Article 11 of the Law of Ukraine "On Prevention of Corruption"; Decision of the NACP №166 dated 09.02.2018 "On Approval of the Regulation on the Unified State Register of Persons who Committed Corruption or Corruption-Related Offenses"; Article 1 of the Law of Ukraine "On Prevention of Corruption"; Article 45 of the CC.

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

The NACP should update the software of the register of persons who committed corruption and corruption-related offences as soon as possible in order to:

- eliminate the restrictions of displaying the number of records that match the search query;

- create a module for automated analysis of information contained in the Unified State Register of Persons who Committed Corruption and Corruption-Related Offenses, according to different criteria.

The Verkhovna Rada of Ukraine should adopt the necessary legislative changes to eliminate the contradiction between the definition of "corruption offense" in the sense of the Law of Ukraine "On Prevention of Corruption" and the list of corruption crimes specified in the note to Article 45 of the CC. In addition, it is necessary to identify a list of criminal offenses related to corruption. Only then the register information will be complete and relevant.

 

Plenary sessions of the High Qualifications Commission of Judges on candidates to the Supreme Court may be held without representatives of the Public Council of Integrity

1. CPLR expert opinion

The High Qualifications Commission of Judges (HQCJ, Commission) is finalizing interviews with candidates to the Supreme Court. According to the requirements of the law, those candidates in relation to whom the Public Council of Integrity (PCI, Council) has approved the conclusion can be deemed as confirmed their ability to administer justice in the relevant court (that is, to continue participation in the selection), if such a decision was supported by not less than 11 members of the Commission. The Commission will address these issues at its plenary sessions in (full) composition, which will begin on February 19, 2019.

During the first selection procedure to the Supreme Court held in 2017, in the course of plenary sessions, the HQCJ members listened to the candidates and a member of the PCI in order to form a common opinion on the candidates.

However, the HQCJ has changed its Rules of Procedure by eliminating the provision on the hearing of the candidate and the position of the Public Council of Integrity.

The CPLR experts consider that the intention of the HQCJ to prevent members of the PCI from attending plenary sessions on those candidates to the Supreme Court, in relation to whom the Council approved the conclusions, is contrary to the requirements of paragraph 4 of part 6 of Article 87 of the Law "On the Judicial System and Status of Judges", which determines that the PCI has the right to delegate an authorized representative to participate in a meeting of the Commission on the qualification of a judge (candidate for a position of judge). The law does not impose any restrictions on such participation, depending on whether the Commission meets in the plenary assembly or as a member of the panel.

2. Respective authorities counter-point/argument

As the representative of the HQCJ stated: "During the competitive selection to the Supreme Court (it is about the first one – author’s remark), interviews with the candidates in the framework of their qualification were conducted by the panels and upon availability of the PCI conclusion, and the panel was deciding on whether to submit this issue for consideration at the plenary Commission meeting. Time has shown that this procedure is consuming a lot of efforts and time. The Commission in the plenary assembly was repeatedly considering all the same questions from the very beginning."

That is, the procedure for considering conclusions at the plenary meeting has been changed in order to save time-consuming resources of the HQCJ.

In January 2019, the PCI published a statement calling on the HQCJ to: "hold plenary meetings in relation to all candidates who have the negative opinion of the Public Council of Integrity, as required by law, with the participation of representatives of the Council and providing them an opportunity to speak."

3. CPLR assessment of the authorities counter-point

In the amended Rules of Procedure, the HQCJ has determined that, at a plenary meeting, the speaker shall inform the Commission members present at the meeting about the decision taken by the panel, in particular on the content of the conclusion and explanation of the judge (candidate for the position of judge). The role of the plenary meeting is to formally approve the panel's decision and reject the conclusion of the PCI.

That is, by amending its own Rules of Procedure, the Commission deprived the PCI of the right not only to submit a conclusion to the plenary meeting of the Commission, but also to ask questions to the candidate, so that the HQCJ members could directly perceive and assess the adequacy and validity of the responses. By such actions, the Commission virtually brings to nothing the role of the Council in the procedure for the selection of judges to the Supreme Court.

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

According to Part 1 of Article 88 of the Law "On the Judicial System and Status of Judges", if the PCI established in its conclusion that a candidate for a position of judge does not meet the criteria of professional ethics and integrity, the HQCJ may adopt a decision confirming the eligibility of such a candidate to administer justice in the relevant court only if such a decision will be supported by at least eleven of its members.

In accordance with paragraph 4 of Part 6 of Article 87 of the Law of Ukraine "On the Judicial System and Status of Judges", the PCI shall delegate an authorized representative to participate in the meeting of the HQCJ regarding the qualification of a candidate for a position of judge.

Sub-paragraph 2.1.1 of paragraph 2.1 of Section II of the Commission's Rules of Procedure specifies that the organizational forms of the Commission's activities are panel meetings, chamber meetings or plenary assembly meetings.

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

The HQCJ should ensure compliance with the direct requirement of the law on the right of the PCI members to take part in Commission meetings (paragraph 4 of part 6 of Article 87 of the Law of Ukraine "On the Judicial System and Status of Judges") in order to submit a negative opinion in relation to the candidate to the whole composition of the HQCJ. For this purpose, the HQCJ would have to bring the provisions of its Rules of Procedure back to the wording that was in force during the first competitive selection to the Supreme Court in order to allow the PCI members to participate in plenary meetings of the Commission, which will consider the conclusions of the PCI.

 

Political points for 28 January – 4 February 

High Qualification Commission of Judges demonstrates different standards of conduct while interacting with the Public Council of International Experts and the Public Council of Integrity

1. CPLR expert opinion

In Ukraine, the processes of the formation of the High Anticorruption Court and the Supreme Court (filling out vacant positions) are going on in parallel. Both processes are being implemented by the High Qualification Commission of Judges (HQCJ), however the first process involves the Public Council of International Experts (PCIE), and the second one involves the Public Council of Integrity (PCI).

On January 28, 2019, the PCIE held its last joint meeting with the HQCJ on the selection of judges to the High Anticorruption Court. As a result of joint meetings, 39 candidates out of 113 discontinued further participation in the competitive selection due to non-compliance with the criteria specified by law. 3 candidates have terminated their participation on their own initiative. Prior to that, the PCIE questioned the integrity of 49 candidates. Consequently, 86% of the doubts expressed by the PCIE resulted in the withdrawal of candidates from the competition.

Instead, in the framework of selection to the new Supreme Court, as of February 1, 2019, the HQCJ interviewed 97 candidates. About 28 of them have got negative conclusions of the PCI. The HQCJ suspended participation in the competition by only 6 candidates with negative conclusions of the PCI. In addition, the PCI claimed that a number of conclusions was illegally left without consideration due to their receipt in less than 10 days, as explained by the HQCJ. Interviews will continue until mid-February.

Comparing the processes of formation of the High Anticorruption Court and the Supreme Court  brings to the following preliminary conclusions:

1) Both the PCIE and the PCI have approved the criteria for assessing candidates in accordance with the law; instead, the HQCJ has no clear criteria and anticipated practice that allows to act in a manipulative way in the case of the Supreme Court;

2) The HQCJ ensured appropriate working conditions for the PCIE – it provided full access to the Candidates' file, including contact information. Instead, the PCI did not get access to the full information in the files, which is contrary to the law;

3) The PCIE had strong secretariat support and enough time to consider the candidates’ files; instead, there was no such secretariat in the PCI, and the HQCJ provided less time to prepare conclusions with larger workload;

4) Having the same indicators of candidates' nonconformity with the integrity criterion, the mechanism with the participation of the PCIE turned to be much more effective than with the participation of the PCI, since the PCIE adopted decisions jointly with the HQCJ and had the "blocking" voice. Instead, the PCI has solely an advisory role.

This situation threatens the low level of public trust in the outcome of the competitive selection to the Supreme Court, while the High Anticorruption Court will have a high level of public legitimacy and international support. At the same time, the Supreme Court is the court of cassation in respect of all courts, including the High Anticorruption Court.

2. Respective authorities counter-point/argument

3. CPLR assessment of the authorities counter-point

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

According to Part 5 of Article 8 of the Law "On the High Anticorruption Court", the question of whether these candidates for the positions of judges of the High Anticorruption Court meet the criteria of integrity (Part 4 of Article 8 of the Law "On the High Anticorruption Court") should be considered at a special joint meeting of the HQCJ and the PCIE. The decision on the eligibility of candidates for the criteria of integrity should be approved by the majority of the joint composition of the HQCJ and the PCIE (provided that at least half of the PCIE members have voted for it). If the decision is not adopted, the candidate is deemed to have ceased to participate in the competitive selection.

According to Articles 87-88 of the Law "On the Judicial System and Status of Judges", the PCI may provide the HQCJ with a conclusion as to the non-compliance of the candidate with the criteria of integrity and professional ethics. The HQCJ can overcome such a conclusion by at least 11 votes out of 16.

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

It is important to review the competition procedures for all courts, including the Supreme Court, using the experience of forming the High Anticorruption Court. Instead of advisory role of the representatives of the PCI, it is expedient to include public representatives in the structure of the HQCJ with full voting rights. These changes require legislative work.

At the same time, before the legislative changes will come into effect, the HQCJ has to:

- learn how to effectively use the assistance provided to it by the PCI, without creating obstacles to the legal activities of the PCI, taking care of the public legitimacy of the process;

- ensure predictability of its practice, in particular, approve the indicators by which the HQCJ establishes non-compliance of candidates with the criteria of integrity and professional ethics.