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January

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 21–28 January

Political Points for 14–21 January

Political Points for 7–14 January

 

Political Points for 21–28 January

Shooting team of the "Stop corruption" project was attacked in Kyiv

1. CPLR expert opinion

On January 24, "Stop Corruption" shooting team which was making a story about illegal extraction of sand in Vydubychi was attacked in Kyiv. Attackers have beaten representatives of the public and journalists, picked up a bag with documents and money of one of them, and literally "chopped" their car with an ax. In addition, the criminals shot the gun and threatened to kill them the next time.

2. Respective authorities counter-point/argument

Immediately after receiving information about the fact of committing this offense, the police announced an interception plan in Kyiv. During January 24-25, officers of the Ministry of Internal Affairs carried out operative and investigative actions aimed at the search and detention of offenders. As early as January 25, law enforcement agencies detained seven persons, who were notified suspicion of committing an offense under Article 187 of the Criminal Code (robbery). Organizer of this crime (Mykhailo Burda) was declared wanted (he is currently hiding). Representatives of the NGO "Stop Corruption" have repeatedly noted on their Facebook pages the excellent work of the police and the prosecutor;s office in investigating and disclosing this crime.

On January 26, the Holosiyivsky District Court in Kyiv elected a preventive measure in the form of a house arrest for the detainees. This decision caused an upsurge of indignation from both the public and the police and prosecutors who demanded the detention of these individuals.

3. CPLR assessment of the authorities counter-point

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

Articles 392–423 of the CPC, Article 187 of the CC.

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

It is expedient to appeal the decision of the Holosiyivsky District Court in Kyiv on electing a preventive measure in order to ensure the determination of a more severe type of preventive measure. In the future, the public should ensure systematic coverage of the activities of law enforcement bodies in the context of investigating and disclosing this crime, as well as activities of the court in terms of the impartiality and objectivity of the consideration of this criminal proceeding.

 

Political Points for 14–21 January

Unconstitutional selection of candidates for the positions of the Constitutional Court judgesin the Parliament: consideration by the Constitutional Court

1. CPLR expert opinion

The Third Board of the First Senate of the Constitutional Court of Ukraine refused to open constitutional proceedings in the case under the constitutional petition of 47 people's deputies regarding the compliance with the Constitution of Ukraine (constitutionality) of the provisions of the second sentence of the first paragraph of part three, the 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" of February 10, 2010, No. 1861-VI. The case concerns giving the possibility exclusively to deputy factions (deputy groups), groups of non-factional people’s deputes to present candidates for the position of a judge of the Constitutional Court. This situation increases the political influence on the judges of the Constitutional Court back at the stage of their appointment, and contradicts part three of Article 148 of the Constitution of Ukraine, which, as a result of the constitutional reform in 2016 established the selection of candidates for the position of the CCU judge on a competitive basis.

2. Respective authorities counter-point/argument

According to the Third Board of the First Senate of the Constitutional Court of Ukraine, opening of the constitutional proceedings should be declined. Further, in accordance with the Law of Ukraine "On the Constitutional Court of Ukraine", the final decision whether to open or not open proceedings should be taken by the Grand Chamber of the Constitutional Court.

On Wednesday, January 23rd, the Grand Chamber will consider this issue at its meeting.

3. CPLR assessment of the authorities counter-point

Parliament approved unconstitutional amendments to Article 208-4 of the Rules of Procedure, which established that "the right to submit a proposal for a candidate of the position of a judge of the Constitutional Court of Ukraine may be exercised by a parliamentary faction (parliamentary group), a group of non-factional people’s deputies in the number not less than the quantitative composition of the smallest deputy group". These proposals are submitted to the 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 the selection of candidates for the position of a CCU judge on a competitive basis.

In such a critical situation, which is in essence the capability of the Constitutional Court to protect itself from unconstitutional provisions that adversely affect the independence of the Constitutional Court, the CCU should take a principle position and consider the issue of unconstitutionality of Article 208-4 of the Rules of Procedure.

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

Article 148 of the Constitution of Ukraine, Article 208-4 of the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine", Article 12 of 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 Grand Chamber should open constitutional proceedings in this case and consider in essence the issues of unconstitutionality of the provisions of the second sentence of the first paragraph of part three, the 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" of February 10, 2010, No. 1861-VI.

Otherwise, the unconstitutional procedure for selecting candidates for a position of the CCU judge in the Parliament will be used for future appointment of the CCU judges, and in fact we will have 6 judges of the Constitutional Court appointed by the Parliament solely for political support, without selection on a competitive basis.

 

Political Points for 7– 14 January

Public Council of International Experts has questioned the integrity of 47 of the 113 candidates for the positions of judges of the High Anticorruption Court

1. CPLR expert opinion

On January 11, 2019, the last (fourth) meeting of the Public Council of International Experts (PCIE) took place, during which the issue of compliance with the integrity criteria of another 15 candidates for the positions of judges of the High Anticorruption Court (HAC) was initiated. In total, the PCIE questioned the integrity of 47 out of 113 such candidates. They include 35 judges, 9 lawyers and 3 scholars.

2. Respective authorities counter-point/argument

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 Part 5 of Article 8 of the Law "On the High Anticorruption Court", the issue of whether these candidates for the positions of judges of the HAC meet the integrity criteria (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. Decision on the compliance of each of these 47 candidates with the integrity criteria should be approved by a majority of the joint composition of the HQCJ and the PCIE (provided that at least half of the members of the PCIE have voted for it). If the decision is not taken, the candidate is deemed to have terminated participation in the competitive selection.

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

It is already known that on January 18 and 21, 2019, two special joint meetings of the HQCJ and the PCIE will take place to consider the issues of the compliance of these candidates with the integrity criteria. Ukrainian authorities represented by the HQCJ, representatives of the public and international institutions should make every effort to ensure that after these meetings the following candidates terminate their participation in the competitive selection:

  • candidates who can not confirm the legality of origin of their property;
  • candidates whose standard of living (or living standard of the members of their families) does not correspond to the declared income;
  • candidates whose lifestyle does not correspond to the status of a judge of the HAC;
  • candidates who do not have sufficient and necessary knowledge or practical skills to deal with cases under jurisdiction of the HAC.