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July

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 busol@pravo.org.ua (Yaryna Busol, communications manager of the CPLR).

Political Points for 16 - 23 July

Political Points for 9 - 16 July

Political Points for 2 - 9 July

Political Points for 16 - 23 July

People’s deputies requested the Constitutional Court to abolish e-declaration for activists

1. CPLR expert opinion

On March 28, 2017, the Verkhovna Rada extended an e-declaration obligation, which was aimed at persons performing functions of the state in order to fight corruption, on anti-corruption activists.

New legislative provisions are discriminatory, contradictory to the Constitution, contain obvious legislative errors and are simply unclear (even to the specific state body – the National Agency for Corruption Prevention). Discriminatory provisions that set inappropriate reporting obligations for civic organizations and activists caused exceptionally negative statements and criticisms from both the expert community and the international community.

2. Respective authorities counter-point/argument

The President “insisted on the immediate abolition of e-declaration for activists”, the Speaker “was calming the internal tension” by invalidating these provisions while the two largest pro-government factions, the BPP and the People’s Front, promised to vote for the same abolition of e-declarations. However, in March and April, parliamentary attempts to abolish discriminatory provisions did not succeed. Thus, the discriminatory provisions are still in effect today.

On June 13, the Ombudsman of the Verkhovna Rada for Human Rights after receiving a request from the coalition of civil society organizations of the RPR, addressed  the Constitutional Court with her own petition regarding the recognition of provisions on the declaration of activists as unconstitutional.

3. CPLR assessment of the authorities counter-point

The Center of Policy and Legal Reforms considers such provisions unconstitutional and inadmissible in a democratic society. That is why the public (under legal supervision of the CPLR) prepared an open constitutional petition for the recognition as unconstitutional of e-declarations for activists and appealed to the President, people’s deputies and the Ombudsman for Human Rights (subjects of the right to a constitutional petition) with a request to submit it to the Constitutional Court. And on July 20, the Constitutional Court of Ukraine received a constitutional petition of 65 people’s deputies of Ukraine on the compliance with the Constitution of Ukraine (constitutionality) of the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” of October 14, 2014, No. 1700- VII and paragraph 2 of Section II “Final Provisions” of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine regarding the Peculiarities of Financial Control of Certain Categories of Officials” of March 23, 2017.

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

Setting for an indefinite range of individuals who receive funds within certain categories of programs, are engaged in a certain type of activity, participate in public organizations engaged in a certain type of activity, of anti-corruption prohibitions, restrictions and obligations intended for persons exercising state functions, contradicts the principle of the rule of law (part one of Article 8 of the Constitution of Ukraine) in terms of violation of legal certainty, as well as contrary to the constitutional right to freedom of association (Article 36 of the Constitution of Ukraine), to the principle of equality and the prohibition of restrictions on the basis of the type of activity, non-interference in private life (Articles 21, 24, 32 of the Constitution of Ukraine).

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

The Constitutional Court of Ukraine should open proceedings upon the petition of 65 people’s deputies and declare unconstitutional the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” of October 14, 2014, No. 1700-VІІ and paragraph 2 of Section ІІ “Final Provisions “of the Law of Ukraine” On Amendments to Certain Legislative Acts of Ukraine regarding the Peculiarities of Financial Control of Certain Categories of Officials” of March 23, 2017.

Political Points for 9 - 16 July

Solving the problem of judicial impunity and dependence is impossible without unification of disciplinary practice with regard to judges: results of a study 

1. CPLR expert opinion

Last year, the institute of disciplinary liability of judges was reformed in Ukraine. The changes were aimed at improving the efficiency of this institution and minimizing its use for pressure on judges.

The CPLR publicized results of the study of the new disciplinary practice of the High Council of Justice (HCJ) and its bodies. Attention was made to the decisions of the HCJ disciplinary chambers in 2017, as well as the subsequent practice of reviewing these decisions in the HCJ and in the Supreme Court (as of July 10, 2018).

Key findings of the study:

1. Disciplinary chambers of the HCJ are overloaded with complaints about judges. On average, in 2017, one member of the HCJ disciplinary chamber had to prepare about 500 decisions in disciplinary matters. Disciplinary chambers and different members of the HCJ consider complaints about judges with varying degrees of diligence.

2. A serious problem of disciplinary practice is the lack of unified approaches of various disciplinary chambers in imposing disciplinary penalties for similar offences. Different sanctions for similar disciplinary offenses also occur within the same disciplinary chamber. The HCJ is inconsistent in assessing the same data that characterizes a judge's personality. There are widespread cases of apparent inappropriateness of disciplinary offenses committed by judges and penalties imposed by disciplinary chambers of the HCJ.

3. The practice of the HCJ and its disciplinary chambers demonstrates a noticeable tendency towards lenient treatment of the chairs of courts as compared to other judges.

4. Various approaches of the disciplinary chambers and the disproportionate nature of imposing disciplinary penalties for the most part can not be corrected at the level of the HCJ, since disciplinary chambers do not grant applicants the right to appeal – even in those cases where the speaker proposed to apply to a judge another penalty rather than being elected by a disciplinary chamber.

5. The HCJ has withdrawn from checking judges' declarations (property, family relations, integrity) within disciplinary procedures, although false information in these declarations forms the basis for disciplinary liability.

6. Judges successfully appealed against the decisions of disciplinary chambers to the HCJ. In almost every second case (25 out of 54) the HCJ agreed with the arguments of the judges and satisfied or partially satisfied their complaints about the decision of the chambers on bringing them to disciplinary responsibility.

7. As a result of the consideration of claims by judges against decisions of the HCJ, adopted in 2017, the Supreme Court satisfied 23% of such claims (as of July 10, 2017).

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

Based on the results of the study, the following recommendations for the High Council of Justice have been developed:

1. Development of an online system for submitting disciplinary complaints about judges via the Internet. Introduction of such a system will reduce the time expenditures of employees of the office and members of the HCJ for the processing of disciplinary complaints, and in the long run will reduce the number of improperly executed disciplinary complaints.

2. Working out and publication of the criteria for the inadmissibility of disciplinary complaints based on the practice of returning disciplinary complaints and decisions to decline opening of disciplinary proceedings. In the future, clear, unified and accessible criteria will reduce the number of non-motivated disciplinary complaints.

3. Generalization of disciplinary practice and working out and publication of legal positions on the application of the law for the resolution of such cases. Unification of approaches to assessing the same data that characterize a judge's personality and the application of the principle of proportionality.

4. Demonstration of the same attitude to judges who committed similar offenses, regardless of their administrative position or the level of court in which they implement justice. Prevention of the use of disciplinary liability mechanisms with an illegitimate purpose (both for the avoidance of liability of judges and for the prosecution).

5. Granting to the complainants the right to appeal against a decision to bring a judge to disciplinary liability in the event that the disciplinary sanction applied to the judge is not related to removal from post, especially in cases where the speaker proposed to apply to the judge another penalty rather than the one elected by a disciplinary chamber.

6. Use of the possibilities provided by the law to verify complaints related to non-declarations or improper declarations within the framework of a disciplinary procedure.

7. Formulation of a consistent disciplinary practice, in particular, regarding the imposition of one or another type of disciplinary punishment for similar misconduct. In the case of a departure from previous practice – thorough justification of the reasons.

Political Points for 2 - 9 July

CPLR calls on to resolve problems caused by the poor preparation of certain provisions of the Law on the Anticorruption Court

1. CPLR expert opinion

In the Parliament, the draft law on amendments to the Law “On the Judicial System and Status of Judges” is being prepared for the second reading in connection with the adoption of the Law “On the Supreme Anticorruption Court” (No. 7441). This draft law makes it possible to resolve some problems caused by poor-quality preparation of the law on the Anticorruption court, if the relevant amendments of the people's deputies will be supported.

In particular, the following threats exist for the independent review of top-level corruption cases:

  1. cases of high-level corruption, which are already considered by the courts, are not directed to the Supreme Anticorruption Court, even in the appellate instance;
  2. the cassation instance for such cases will be the Supreme Court, the current composition of which was elected in accordance with the general procedure, without taking into account anti-corruption specialization; the general procedure was rather manipulative.

Also, the current Law creates serious problems for the procedure of selecting the Anticorruption Court judges: international experts will be able to participate in the evaluation of integrity, but not professional ethics of candidates, and the deadline for such an evaluation is just one month.

Draft law No. 7441 does not address these shortcomings. In addition, there are provisions in this draft that are in no way conditioned by the adoption of the Law “On the Supreme Anticorruption Court”, but may paralyze the work of the Public Council of Integrity.

2. Respective authorities counter-point/argument

International partners of Ukraine, in particular, the International Monetary Fund and the US Department of State, as well as representatives of civil society, including the Centre of Policy and Legal Reforms and the Reanimation Package of Reforms, pointed to the above-mentioned problems.

The Speaker of the Ukrainian Parliament agreed with the possibility of solving the problem of appeal review by means of the draft law No. 7441. Ukrainian authorities have not yet responded publicly to other issues raised. However, some people's deputies of Ukraine submitted the necessary proposals to the draft law No 7441 to address these problems.

3. CPLR assessment of the authorities counter-point

The CPLR supports the creation of an independent system of judicial review of top-level corruption cases, in particular by introducing necessary amendments through the adoption of the draft law No. 7441 with the relevant amendments of the people's deputies.

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

On June 7, the Parliament passed the Law “On the Supreme Anticorruption Court”. On June 11, the President signed it and the Law came into force. On June 21, the Law “On the Establishment of the Supreme Anticorruption Court” was adopted. In such a way, a legal basis for the beginning of the formation of the judges of this court was created. However, the legislative framework on these issues needs to be improved.

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

The CPLR calls on the Verkhovna Rada of Ukraine Committee on Legal Policy and Justice to support the amendments of the people's deputies during preparation for the second reading of the draft Law No. 7441, which:

  1. provide for an appeal review by the Supreme Anticorruption Court of even those top-level corruption cases, the proceedings whereon were initiated by local courts in the first instance;
  2. introduce the Anticorruption Chamber in the Supreme Court for cassation review of such cases, while the selection of its judges will be conducted with the participation of international experts;
  3. extend the competence of international experts also to the evaluation of the professional ethics of candidates by establishing a realistic deadline for assessing questionable candidates;
  4. remove barriers to the activity of the Public Council of Integrity for participation in the qualification assessment of all judges.

The President signed the Law on the Disciplinary Statute of the National Police

1. CPLR expert opinion

On the day of celebrating the third anniversary of the police formation (July 4th), the President of Ukraine signed the Disciplinary Statute of the National Police, passed by the Parliament almost 4 months ago (March 15). This Law is intended to replace the outdated Statute of the Ministry of Internal Affairs dated 2006.

2. Respective authorities counter-point/argument

The draft Law was prepared by the Ministry of Internal Affairs and submitted by the Government. However, the draft law was successfully improved before the second reading in the Parliament after sharp criticism from the experts of the CPLR and the calls for the necessity of granting to police officers of the rights guaranteed by the Constitution.

3. CPLR assessment of the authorities counter-point

The importance of this Law is that it allows the police to be protected from unreasonable prosecution or dismissal from the police. The Statute sets out an exhaustive list of duties for the violations of which the police officers will be prosecuted, guarantees the rights of the police officers to access the materials of a disciplinary case, to involve a lawyer, and also provides for an exclusive commission procedure for an official investigation.

At the same time, the Statute has no clear definition of a disciplinary offense and violations of professional discipline as grounds for disciplinary liability of a police officer, which may lead to abuses in this procedure. There is also no obligation to involve public representatives in the activities of disciplinary commissions.

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

Subsequently, the Disciplinary Statute of the National Police will require improvements as regards the recognition of a disciplinary offense as the sole basis for disciplinary liability of a police officer, as well as the mandatory participation of public representatives in the work of disciplinary commissions.