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June

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 24 June – 1 July 2019

Political Points for 17–24 June 2019

Political Points for 10–17 June 2019

Political Points for 24 June – 1 July 2019

The President established the Commission on Legal Reform

1. CPLR expert opinion

On 21 of June Decree No 421/2019 “On Commission on Legal Reform” was published on the official web-site of the President of Ukraine.

2. Respective authorities counter-point/argument

According to this Decree President established the Presidential Commission on Legal Reform as a consultative and advisory body and dismantled the Judiciary Reform Council and the Constitutional Council.

Drafting suggestions on amending the Constitution and laws of Ukraine and submitting them to the President of Ukraine was defined as a priority task for the Commission on Legal Reform. Such amendments shall be aimed at ensuring proper implementation of constitutional norms and principles, that is primacy of protection of fundamental right and freedoms of persons, further development of legislation on organization of judiciary and administration of justice, improvement of legislation on criminal liability and criminal procedural legislation of Ukraine, reform of law enforcement agencies, as well as creation of conditions for reintegration of temporarily occupied territories of Ukraine and their population into single constitutional ambit of Ukraine.

3. CPLR assessment of the authorities counter-point

The Centre of Policy and Legal Reform regrets that establishment of the Commission and its staffing happens in closed mode. In particular, there is no information that the President appealed to relevant civil society organizations and think-tanks asking to delegate experts to the Commission.

The Centre of Policy and Legal Reform is one of the oldest think-tanks in Ukraine. It has been researching on constitutional and judiciary reforms, as well as reform of constitutional justice since 1996.

Representatives of the CPLR as part of the Secretariat of the President worked on constitutional reform proposals during operation of the National Constitutional Council convened by President Yushchenko. Representatives of the Centre also participated in the work of the Constitutional Assembly during the presidency of Yanukovych and in the Council on Judiciary Reform during the presidency of Poroshenko. The Constitutional Commission utilized outcomes of the Centre’s work, in particular in its work on constitutional reform as regards judiciary.

We think that the results of more than 10 years of Centre’s work would be useful for the operation of the new consultative and advisory body. The Centre of Policy and Legal Reform is ready to cooperate and provided recommendations regarding its experts to the President of Ukraine.

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

Decree No 421/2019 “On Commission on Legal Reform”.

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

To ensure proper cooperation between civil society and public authorities as well as inclusive work of the Commission on Legal Reform we suggest to include to the Commission representatives of the CPLR and other independent reputable think-tanks with long-term experience in relevant areas.

 

The Court made a final judgement about the unlawfulness of certain provisions of the High Qualification Commission of Judges’ Rules of Procedures that limited Public Integrity Council activities on the claim of Council’s member

1. CPLR expert opinion

On 25 of June, Grand Chamber of the Supreme Court left confirmed the decision of the Court of Cassation on regarding as unlawful of some provisions of the Rule of Procedures of the High Qualification Commission of Judges of Ukraine (HQCJ) and cancellation of these provisions. The Court cancelled provisions which set requirements to the content of the Public Integrity Council’s conclusions (PIC, the Council), set an obligation for the Council to inform judges about the content of conclusions, and provided the HQCJ with a right not to consider conclusions of the PIC. These provisions were one of the reasons behind suspension of the PIC’s participation in the procedure of qualification evaluation in March 2018.

Powers of the HQCJ to regulate issues mentioned above were not prescribed by the law, therefore the HQCJ violated article 19 of the Constitution of Ukraine by making respective apdates to its Rules of Procedures.

According to the PIC’s data, while litigation lasted (since March 2018) the Commission has managed to evaluate near 2500 judges without considering conclusions approved by the PIC. The Commission justified its actions referring to the provision of the Rules of Procedure which are cancelled. That means, that there are reasons to believe, that results of qualification evaluation of some judges are dubious.

2. Respective authorities counter-point/argument

The resume of decision defines that provisions of the Rules of Procedures are recognized as unlawful and cannot be further applied not since the date when they were adopted but since the date when the Court’s decision enters into force (25 of June).

3. CPLR assessment of the authorities counter-point

The way the Court cancelled unlawful provisions of the Rules of Procedures once again questioned the legitimacy of results of qualification evaluation held by the HQCJ.

As appears from the essence of decision, the Court decided that making respective updates to the Rules of Procedures the Commission had acted not by virtue of the authority given to it by the law. That is, it did not have a right to make respective updates. Taking this into consideration, the respective provisions of the Rules of Procedures were unlawful since the date of adoption, and their application in practice leads to the unlawfulness of the defined results.

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

Section 2 of the article 19 of the Constitution of Ukraine states the public authorities and bodies of local self-government and their officials shall be obliged to act only on the grounds, within the powers, and in the way determined by the Constitution and the laws of Ukraine.

According to par. 2 part 2 of art. 88 of Law of Ukraine “On Judiciary and Status of Judges” if the Public Council of Integrity states in its conclusion that a judge (judicial candidate) does not meet criteria of professional ethics and integrity, the High Qualification Commission of Judges of Ukraine may adopt a decision on confirming capability of such a judge (judicial candidate) to administer justice in respective court only if such a decision is upheld by not less than eleven members thereof.

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

In order to achieve goals of the qualification evaluation and to ensure real involvement of the public, it is necessary to hold second evaluation of those judges regarding whom conclusions of the PIC were approved. Such a “restart” is not possible without amendments to legislation.

However, experts of the CPLR emphasize that current rules of the Commission formation make this body inefficient. The case on the unlawfulness of Rules of Procedures’ provisions showed that the HQCJ is inclined to place obstacles for the participation of the public in qualification evaluation rather than to make objective evaluation of judges and information about them. The PIC has succeeded in cancellation of unlawful provisions of the Rules of Procedures after almost year and a half since its appeal to the court. Bearing this in mind, it is necessary to consider the possibility of reorganization of the Commission in order to prevent similar acts in the future and to include in bodies selecting and evaluating judges more members of the civil society who are trusted by the public.

 

“Cleansing” of the High Qualification Commission of Judges staffing?

1. CPLR expert opinion

On 27 of June, media published the information that Ukrainian Parliament Commissioner for Human Rights fired a member of the High Qualification Commission of Judges (HQCJ) A. Kozlov allegedly for lack of professional experience required by his position.

According to part 1 art. 94, par. 3 part 3 art. 96 of the Law of Ukraine “On Judiciary and Status of Judges” the ombudsman indeed has a right to do so.

However, A. Kozlov was appointed to the position in October 2016 and during almost three years no one has been raising questions about his professional experience. In opinion of the PROSUD project, A. Kozlov is de facto the only member of the Commission who ‘tried to implement the judicial reform in line with its goals’, and being a member of the Commission ‘wrote separate opinions on Commission’s decision to confirm integrity of dubious judges and asked inconvenient question during interviews’. Apart of that, as CPLR experts reported, at the beginning of June A. Kozlov publicly claimed that the HQCJ manipulated voting while making decisions about judges with the PIC’s conclusions; since then he has not been attending plenary meetings of the Commission. Taking these facts into account, the dismissal of A. Kozlov may be related to intention to get rid of the independent HQCJ member, to introduce more loyal member instead of him, and to declare integrity of as many dubious judged as possible before the formation of the new Parliament. Let us remind, that at the beginning of June T. Lukash, a member of HQJC appointed on the quota of the State Court Administration of Ukraine, resigned of his own accord.

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

According to part 1 art. 94 of Law of Ukraine “On Judiciary and Status of Judges” the HQCJ shall consist of members who are citizens of Ukraine and have, among others, at least fifteen years of professional activity in the field of law. One of grounds for dismissal of a member of the Commission is finding circumstances regarding his/her failure to meet these requirements (par. 3 part 1 art. 96 of the Law of Ukraine “On Judiciary and Status of Judges”). In this case, such a decision is made by the body which appointed the member of the Commission (part 3 art. 96 of the Law of Ukraine “On Judiciary and Status of Judges).

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

Another staff scandal in the HQCJ demonstrates that different political forces are trying to establish or maintain control over this body by any means. These problems can only be solved by radical reload of HQCJ.

 

The Constitutional Court of Ukraine brought the usage of preventive measures into conformity with the European standards

1. CPLR expert opinion

On 25 of June, the Constitutional Court of Ukraine made a decision to recognize the unconstitutionality of provisions of part 5 art. 176 of the Criminal Procedural Code which provided for the exclusive use of detention in relation to persons suspected or accused in committing crimes against pillars of the national security including those connected with a terrorist organization. Alternative preventive measures such as personal commitment, guarantee given by another person, house arrest, and bail could not previously be used in relation to such persons.

The Constitutional Court opined that these provisions of the Code allowed detaining a person only on the ground of a formal court decision justified by the severity of the incriminated act. This did not ensure the protection of the constitutional right to liberty and security of the person (article 29 of the Constitution).

2. Respective authorities counter-point/argument The Prosecutor General immediately commented on this decision and claimed that it would result in “thousands of accused of terrorism being released”. He also urged the Parliament to enshrine in the Criminal Procedural Code a provision that detention was the only preventive measure for persons accused in crimes against the state. De facto the Prosecutor General suggested adopting a law similar to that which the Court declared unconstitutional. Such suggestions are manifestations of disrespect to the Constitutional Court and human rights.

3. CPLR assessment of the authorities counter-point

The decision of the Court to recognize the law as unconstitutional does not mean the automatic release of all persons suspected in terrorism as it might seem from words of the Prosecutor General Y. Lutsenko.

In every proceeding investigating judges shall consider the motion of prosecution party about prolonging detention. During respective hearings, a prosecutor must prove the validity of suspicions that a person committed a respective crime as well as one of the risks – hiding, destruction of evidence or traces of the crime, influence on witnesses, etc. If a person is suspected of committing a crime related to violence or death of persons, then a court is limited in the possibility to choose a bail as an alternative to detention.

However, there are other alternative preventive measures which allow for the prevention of the escape of suspected persons. They include, for instance, round the clock house arrest with electronic movement monitoring and removal of passports.

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

Constitution of Ukraine, Criminal Procedural Code of Ukraine.

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

The Prosecutor General shall direct prosecutors at proving the validity of suspicion and the presence of procedural risks during the procedure of preventive measures selection. The practice of using alternative preventive measures which prevent the escape of suspected persons shall be improved.


Political Points for 17–24 June 2019

Constitutional Court adopted a Decision in relation to the Decree on early termination of powers of the Parliament

1. CPLR expert opinion:

On June 20, the Constitutional Court of Ukraine adopted a Decision in the case under the constitutional petition of 62 people's deputies of Ukraine on compliance with the Constitution of Ukraine (constitutionality) of the Decree of the President of Ukraine "On Early Termination of Powers of the Verkhovna Rada of Ukraine and the Appointment of Early Elections" dated May 21, 2019, No. 303/2019.

2. Respective authorities counter-point/argument:

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3. CPLR assessment of the authorities counter-point

The decision of the CCU is extremely important in terms of its impact on the socio-political situation.

The CCU adopted its Decision before the day of voting, preventing the possibility of establishing unconstitutionality of the presidential decision on early termination of parliamentary powers and the appointment of early elections, which would undermine the lawfulness and, consequently, the legitimacy of the next convocation of Parliament.

The CCU complied with the one-month deadline for urgent proceedings, which was also extremely important in this context.

It is worth mentioning that the CCU Secretariat quickly communicated the main provisions of the Decision, even before the official announcement, which is of paramount importance in the conditions of the Ukrainian information space and can only be assessed positively.

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

The Constitution of Ukraine, 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 Constitutional Court of Ukraine should not avoid solving complex "political" cases and in the future consider them within the established terms.

 

The HCJ held a discussion of the Annual Report on the State of Independence of Judges in Ukraine for 2018 against the background of the scandal regarding the possible intervention of the Presidential Administration in the work of the judicial system

1. CPLR expert opinion:

On June 21, a professional discussion was held in Kyiv on the Annual Report on the State of Independence of Judges in Ukraine for 2018, issued by the High Council of Justice (hereinafter – the HCJ, Council) in April 2019. Earlier, the CPLR experts published an Alternative Report on the independence of the judicial system in Ukraine, which concerned the events that took place in the judicial area, and provided their own, critical evaluation of conclusions, publications and opinions of the HCJ. In particular, the experts noted that the report lacks information about threats to the independence of judges, which are generated by the judicial system itself.

Discussion of the Annual Report took place against the backdrop of a scandal regarding the possible intervention of the new administration of the President of Ukraine in the work of the judicial system. Thus, the Chairman of the Council of Judges of Ukraine Oleh Tkachuk stated: "On the eve of this day, information from judges from different regions of Ukraine, members of the Council of Judges of Ukraine began to arrive tonight and in the morning, that the chairmen of the courts received telephone calls from the Administration of the President of Ukraine requiring to order the judges delegated from these courts to the Council of Judges of Ukraine to disrupt the meeting of the Council of Judges. The situation indicated is of great concern and in no way consistent with the principles of democracy, it shows a real threat to the judiciary and may undermine its credibility as an impartial arbiter in social, political, and economic disputes."

2. Respective authorities counter-point/argument:

At the Presidential Administration, the words of the Chairman of the Council of Judges of Ukraine are denied. "What Tkachuk said is a statement by a group of people who have taken control of the judicial system in the past and now are trying to keep it under control. Last week, the president said that we will review the judicial reform and, obviously, people felt some fear of losing control", – said Ruslan Ryaboshapka, Deputy Head of the Presidential Administration.

In addition, there is widespread information in the media about the dissatisfaction of some members of the Council of Judges of Ukraine with the work of this body. According to Vadym Butenko, Deputy Chairman of the Council of Judges of Ukraine, the Council of Judges of Ukraine practically does not deal with the problems of the courts of first instance, and all the successes of the reform are limited to the creation of the Supreme Court and the High Anticorruption Court. In his opinion, a new stage in the reform should begin with the replacement of the Chairman of the Council of Judges of Ukraine, who ignores the problems of the courts of first instance.

3. CPLR assessment of the authorities counter-point

In the opinion of the CPLR experts, press reports on possible interference of officials in the work of the judicial system confirm fears of continued dependence of the judicial system on political influences. Under the presidency of Viktor Yanukovych, the judicial system was under the full control of political power, which was provided through the controlled bodies of judicial self-governance. Despite significant legislative changes aimed at strengthening the independence of the judicial system, the control of political power over the judicial system remained during the presidency of Petro Poroshenko. The current report of the Chairman of the Council of Judges of Ukraine, if true, may indicate that the new administration is trying to re-subordinate the judicial system to its own interests, following the traditions of its predecessors.

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:

It is necessary to review the procedure for the implementation by representatives of the professional community of their right to vote at the congress of judges by introducing a direct ballot for candidates to positions in bodies of judicial governance and self-governance using modern information technologies. Such a step in the event of implementation will complicate political control over the election of judges to the bodies of judicial governance and self-governance. It is also advisable to introduce control over compliance with integrity criteria for the candidates to the positions in the judicial governance bodies, and to ensure the participation of civil society representatives with impeccable reputation in these bodies.

 

The "Servant of the People" (Sluha Narodu) party presented its action plan to combat corruption

1. CPLR expert opinion:

On June 18, the "Servant of the People" party announced in its Telegram channel a number of steps to eradicate systemic corruption in Ukraine, which include the creation of a fully-fledged national e-governance system; radical cleaning and reloading of the prosecutor's office; ensuring the real independence of anti-corruption bodies; transfer of the maximum number of public services into online format; strengthening of responsibility for corruption crimes and introduction of compulsory confiscation of property of corrupt officials; creation of a witness protection system and introduction of a monetary compensation system for citizens for the revealed corruption; adoption of modern legislation on the temporary investigative committees of the Verkhovna Rada, which will allow the prosecution of corrupt and incompetent officials; grounding of any business investigation on the principle of the presumption of integrity.

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

As regards the steps on combating corruption announced by the party, which, according to sociological surveys, has the highest support rates before the extraordinary parliamentary elections, although they have a correct vector, but they seem to be selective, incomplete and unsystematic. They lack specificity and unambiguousness.

Ensuring the independence of anti-corruption bodies is an important element for significant enhancement of their efficiency and effectiveness, but it is equally important to build institutional capacity and strengthen their powers.

In the context of anticorruption policy, it is important to ensure protection not only of witnesses in criminal proceedings, but also of corruption revealers who are not always participants in criminal proceedings. The financial reward should be one of the elements of encouraging reports of known cases of corruption and corruption-related offenses.

Some of the proposed measures have already been implemented: for example, the Criminal Code provides for sanctions in the form of confiscation and special confiscation. The mechanism of civil confiscation of unjustified assets is also provided for by law, although it is not currently effective. Probably, the party's message is about improving the civil asset confiscation procedure so that it becomes an effective practical tool.

Some issues are not clear. For example, it is unclear what is "based on the principle of the presumption of integrity” in the context of business investigations. These points indicate the need for clearing and "reloading" the prosecutor's office. However, it is unclear what will "reloading" the prosecutor's office mean in practice: will this include the introduction of a competitive selection for the administrative office of the Prosecutor General? Is it about creating a compact office of the Prosecutor General in opposition to the existing Prosecutor’s General Office? Should we expect some changes in the work of the Prosecutors' Qualifications and Disciplinary Commission and the Prosecutors' Council?

Measures to transfer services online or to create a fully-fledged e-governance system are really the elements that will eliminate some of the preconditions for corruption at the domestic and administrative levels, however, these measures are unlikely to be crucial for counteracting political, high-level corruption. In addition, despite the unequivocal recognition of the benefits of IT tools in preventing corruption, these very IT tools can themselves be the subject of abuse, which should also be effectively countered.

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 the legal instruments available in Ukraine

As a leader of the election race, the party should publish a more detailed and concrete program in relation to anti-corruption measures. The latter should be more systematic and evenly cover the aspects of the corruption prevention and punishment for corruption offences. More attention needs to be given to deeper transformation of the public sector, which can eliminate a significant amount of corruption risks. Digitalization of the public service is only one of such areas.

Political Points for 10–17 June 2019

Parliament approved the Law on Temporary Investigatory Commissions

1. CPLR expert opinion

On June 6, the Parliament approved the draft law on temporary investigatory commissions and temporary special commissions of the Verkhovna Rada of Ukraine. By this Law, the Verkhovna Rada regulates operating procedure for temporary investigatory commissions and the extent of their powers.

2. Respective authorities counter-point/argument

Verkhovna Rada of Ukraine: The Law of Ukraine "On Temporary Investigatory Commissions and Temporary Special Commissions of the Verkhovna Rada of Ukraine" has been adopted. The Law defines the legal status of temporary investigatory commissions, special temporary investigation commission and temporary ad hoc commissions of the Verkhovna Rada of Ukraine, their powers and organizational framework of activities.

3. CPLR assessment of the authorities counter-point

The law extends the regulation of the work of temporary investigatory commissions, covered by Article 89 of the Constitution of Ukraine and the Law of Ukraine on the Rules of Procedure of the Verkhovna Rada of Ukraine. The Law also establishes the limits and extent of the powers of the mentioned commission.

Adoption of such a Law is a positive factor for the formation of the possibility of real parliamentary control in the Verkhovna Rada.

However, it is important to emphasize that such legislative changes are not enough to implement a real impeachment procedure. To do this, it is necessary to amend Article 111 of the Constitution of Ukraine, and the regulation of the work of temporary investigatory commissions is only one of the stages of this procedure.

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

The Constitution of Ukraine, the Law of Ukraine "On Temporary Investigatory Commissions and Temporary Special Commissions of the Verkhovna Rada of Ukraine" (draft), 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

The next convocation of the Parliament should amend Article 111 of the Constitution of Ukraine in order to create a real procedure for impeachment.

 

The practice of blocking business and state structures through court decisions has become widespread

1. CPLR expert opinion

Court decisions on the enforcement of claims that create barriers in the activities of businesses and public authorities have become widespread. The use of courts to capture or destroy businesses was a common occurrence in the years 2000-2013 and was called "raidership". Gradually, as a result of introducing changes in both legislation and judicial practice, the opportunities for such practices were reduced. Now this phenomenon has returned, but in addition to businesses, state bodies have become subject to raidership.

On May 24, Baryshivsky District Court of Kyiv Oblast, in order to secure the claim of a person whose flight was allegedly delayed, terminated the validity of the license for the air transportation of the low-cost company SkyUP.

A few days later, it became known that on June 11, the same Baryshivsky Court prohibited the first deputy Chairman of the National Bank of Ukraine to exercise her powers in a case on the recognition of inaccurate information.

Earlier, on May 15, the Kyiv Regional Administrative Court prohibited the Chairman of the High Qualifications Commission of Judges (hereinafter – the HQCJ, Commission) S. Kozyakov to exercise the powers of a Commission member, and, by another decision, ordered to include S. Ostapets, who was appointed instead of S. Shchotka, as a member of the HQCJ.

On May 27, the Suvorovsky District Court of Odesa having considered a civil case regarding the recognition of inaccurate information under the lawsuit of one person to his neighbor, prohibited the HQCJ to take any actions to conduct a qualification assessment. However, on May 29, the Odesa Court of Appeal terminated the effect of this ruling.

Instead, a new Supreme Court started playing political games on the other hand, by prohibiting the members of the Commission to evade exercising their powers in the first instance.

All decisions were taken as rulings to secure the claim. Unlike the decisions adopted as a result of the consideration of the whole case, the decisions on securing a claim can be taken without calling the parties and must be executed immediately and regardless of the fact of the appeal. Although it has a temporary effect – for the period of the proceedings – the consideration can be extended to as long as someone will benefit from the ruling.

All such decisions are the result of the dependence of judges on politicians and oligarchs.

2. Respective authorities counter-point/argument

Commenting on the situation with the suspension of the license of the SkyUp carrier, Minister of Infrastructure of Ukraine V. Omelyan said: "The district court has no competence to adopt such decisions, especially in the security part" and assured that the company will continue its work.

Regarding the reaction of the HQCJ to the decision of the District Administrative Court of Kyiv, it can be assumed that it disagreed with the court's conclusions about the expiration of the term of office of S. Kozyakov and S. Shchotka, as on its web site there was a notice that: "the documents available to the Commission indicate otherwise", which contained references to the decisions of the courts concluding that these members of the HQCJ have the six-year term of office. However, S. Kozyakov and S. Shchotka did not take part in the plenary sessions of June 12-13.

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 Part 2 of Art. 149 of the Civil Procedure Code of Ukraine, securing of a claim is allowed both before bringing of the claim and at any stage of the consideration of the case, if the non-application of such measures can significantly impede or prevent the execution of a court decision or effective protection, or renewal of the claimant's rights or interests that are contested or challenged, for protection of which he/she appealed or intends to appeal to the court. In addition to this ground, Part 2 of Art. 150 of the Code of Administrative Proceedings of Ukraine also provides that the securing of a claim is permissible if there are obvious signs of unlawfulness of a decision, action or omission of the subject of authority, and violation of the rights, freedoms or interests of the person who appealed to the court by such a decision, action or omission.

According to Part 3 of Art. 151 of the Code of Administrative Proceedings of Ukraine, it is inadmissible to secure a claim by imposing a prohibition on the HQCJ to take certain actions, suspend the decisions of the National Bank of Ukraine, as well as establish a prohibition or obligation for the National Bank of Ukraine to perform certain actions.

Obviously, the claimants and the courts have circumvented these legal restrictions through evident manipulation of the rules of jurisdiction (taking measures to secure a claim that are typical for administrative proceedings in a civil case) and arbitrability (adding as co-defendants of persons who have nothing to do with the case, at the location of the court).

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

Restoration of raidership was made possible due to the non-implementation of the goals of judicial reform – the refinement of the judiciary corps almost did not take place. Prevalence of corruption and actual impunity for the court decisions allowed judges to go for such decisions.

In order to overcome these challenges in the short term, it is important to bring judges who have made such decisions to disciplinary and even criminal liability, in order to ensure the inevitability of punishment for such actions. In the medium term, it is necessary to improve the mechanisms for refining the judiciary corps.

 

High Qualifications Commission of Judges makes every effort to keep in the office the judges with negative conclusions from the Public Council of Integrity

1. CPLR expert opinion

On June 12, during the consideration of the decision of the HQCJ Board on judge I. Gryban, an incident occurred that could indicate that the HQCJ members had falsified the results of the qualification assessment. As the Public Council of Integrity (hereinafter referred to as the "PCI") approved the conclusion on her non-conformity with the criteria of integrity and professional ethics, it would be possible to overcome this conclusion if at least 11 of the 16 members of the HQCJ would vote in favor of this decision.

On that day, 12 members of the HQCJ were present at the meeting. After considering the issue on the judge, the members of the HQCJ went to the consultative room and returned with a decision to announce a break. As it turned out, the break was announced due to the fact that the decision to confirm the ability to administer justice did not gain enough votes, as two members of the HQCJ voted against. This was stated both by the PCI, whose members witnessed a telephone conversation of one of the Commission members with the Chairman of the HQCJ, and by one of the Commission members, А. Kozlov, who left the meeting after the incident.

In accordance with the law, such a result of voting is the basis for making a recommendation to dismiss a judge from office. That is, the HQCJ deliberately manipulated the results of voting. This testifies that the Commission's activities are aimed not at the actual refinement of the judiciary corps through the mechanism of qualification assessment, but at keeping of the judges questioned by the public, in their positions.

Such a statement is confirmed by the events, which happened on the following days. In particular, on June 13, the Commission postponed plenary consideration of issues concerning all judges with the conclusions of the PCI, substantiating this with the receipt of materials requiring additional study, in particular from the PCI. However, the chairman did not indicate what materials were received, whom they are referring to, and why the issues concerning all judges are postponed. The next day, the Commission without any explanations withdrew from the consideration the issue on supporting the decisions of the board in relation to all judges.

In the opinion of the CPLR experts, the Commission can not "collect" enough votes to overcome the PCI conclusion, since the powers of the three members of the HQCJ are questioned (the court has prohibited S. Kozyakov to exercise the powers of a HQCJ member, the Chairman of the State Judicial Administration of Ukraine appointed S. Ostapets to the position of a Commission member to replace S. Shchotka, and the Commissioner of the Verkhovna Rada of Ukraine for Human Rights appointed M. Syrosh to replace T. Veselska), another member of the Commission was appointed to the PCI, and A.Kozlov refused to participate in the plenary meetings. That is, there are only 11 members of the Commission left, and therefore the decision to confirm the judge's ability to administer justice should be unanimous. Perhaps, because of the incident with judge I. Gryban, the members of the HQCJ decided not to take the risk.

In addition, on June 14, it became known that T. Lukash, a member of the Commission, filed an application on resignation, which was satisfied. That is, if A. Kozlov continues to "boycott" the plenary meetings of the Commission, and disputes over the powers of the three members of the HQCJ remain unresolved, it is unlikely that the Commission will be able to fully conduct the qualification assessment procedure.

2. Respective authorities counter-point/argument

Prior to these events, the HQCJ, in a joint public statement with the High Council of Justice (hereinafter – the HCJ, Council), the Council of Judges of Ukraine, the State Judicial Administration of Ukraine, the National School of Judges of Ukraine, and the Chairman of the Supreme Court, recommended to consider the possibility of accelerating the course of the qualification assessment.

3. CPLR assessment of the authorities counter-point

The leadership of the judiciary is trying to speed up the judges' qualification, but the HQCJ is becoming less capable of fulfilling its powers. The qualification assessment itself is merely an imitation of the refinement of the judicial system, which shows scant results.

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

Part 1 of Art. 88 of the Law of Ukraine "On the Judicial System and the Status of Judges" determines that the HQCJ shall adopts a motivated decision to confirm or decline the judge's ability to administer justice in a relevant court. If the PCI in its conclusion finds that the judge does not meet the criteria for professional ethics and integrity, the Commission may decide to confirm the ability of such a judge to administer justice in a relevant court only if such decision is supported by at least 11 of its members.

According to pp. 4, p. 16-1, Section XV of the Constitution of Ukraine, the establishment of the judge's inconsistency with the position occupied based on the results of the assessment by the criteria of competence, professional ethics or integrity, is the basis for the dismissal of a judge from office.

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

Events that happened this week have confirmed the inability of the HQCJ to ensure a full-scope judicial refinement. As already noted by the CPLR experts, it is necessary to consider the possibility of reorganization of the Commission in order to include in the structure of the bodies for the selection and evaluation of judges more representatives of the public sector trusted by the society (human rights defenders, journalists, representatives of specialized NGOs) than the judges themselves during the period of the reform.

As for the immediate response, the Commission should stop conducting a qualification assessment until the problems with its staff composition are solved.

 

President canceled the decrees of his predecessor on the appointment of members of the High Council for Justice

1. CPLR expert opinion

On June 10, the President of Ukraine V. Zelensky canceled the decrees of his predecessor on the appointment of A. Vasylenko and М. Isakov as members of the HCJ.

Experts of the CPLR believe that the problem of the composition of the HCJ should be solved in a comprehensive and legal manner.

2. Respective authorities counter-point/argument

President of Ukraine V. Zelensky did not motivate cancellation of decrees.

On June 12, the HCJ held an extraordinary meeting, which considered the issue of further activities of the Council. At this meeting, A. Vasylenko and M. Isakov addressed to the HCJ with applications for leave: "in connection with the situation that has arisen, the possibility of its resolution by the court, in order to avoid doubts about the legitimacy of the work of the High Council for Justice." According to the results of the meeting, the HCJ approved a statement which says that it is authoritative and continues to perform its functions. In addition, it became known that A. Vasylenko appealed the decree on the cancellation of his appointment in the court.

3. CPLR assessment of the authorities counter-point

Experts of the CPLR previously noted that A.Vasylenko and M. Isakov were appointed by P. Poroshenko in a political manner, without holding a competition, one week before the expiration of his term of office and bypassing the court injunction, by way of amending his decree on the procedure for conducting the competition. However, despite the questionable way of their appointment, yet they began to exercise their powers.

The CPLR experts believe that, under such conditions, the members of the HCJ would have to resign from these positions on their own. However, they did not.

At the same time, the President of Ukraine, having canceled the decrees on the appointment of A. Vasylenko and M. Isakov, tried to terminate their powers in a manner not provided for by law. He also initiated the procedure for a new competition for these positions in the absence of relevant vacancies.

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

Article 24 of the Law of Ukraine "On the High Council of Justice" defines an exhaustive list of grounds for the dismissal of a member of the HCJ from office. The mechanism of dismissal involves the maximum non-dependence of the existing members of the Council from the subjects that have appointed them, in particular, the authorized body may dismiss the members of the HCJ only on a case-by-case basis and solely on the basis of the respective Council's submission.

In accordance with Part 1 of Art. 24 of the Law of Ukraine "On the High Council of Justice", the grounds for the dismissal of a HCJ member from office are as follows:

1) inability to exercise their powers due to health conditions in the presence of medical findings;

2) submission of an application for dismissal of a member of the HCJ at own discretion;

3) gross or systematic neglect of duties that is incompatible with the status of a member of the High Council of Justice or has revealed his/her inconsistency with the position held, commission of another behavior that undermines authority and public trust in justice and the judiciary;

4) determination of the substantiality of the existing circumstances regarding his/her non-compliance with the requirements specified in Article 6 of this Law;

5) significant violation of the requirements established by the legislation in the field of prevention of corruption;

6) systematic non-participation in the work of the HCJ or the body of the HCJ, in which he/she is included.

According to Parts 2 and 3 of this Article, a decision to dismiss a member of the HCJ from office on the grounds specified in paragraphs 1, 2 shall be taken by the HCJ itself, and on the grounds specified in paragraphs 3-6 – by the body that appointed the member of the Council, upon submission of the HCJ.

Article 25 of the Law of Ukraine "On the High Council of Justice" defines the grounds for termination of the powers of a member of the HCJ, which are:

1) expiration of the term for which he/she has been elected (appointed), except in case when the HCJ becomes unauthorized due to the expiration of the term of authority of this member;

2) coming into effect of the conviction against him/her;

3) termination of citizenship of Ukraine or acquisition of citizenship of another state;

4) recognition of his/her absence or declaration of death, recognition of incapacity or limited capacity;

5) termination of a judge's authority or dismissal;

6) his/her death. The authority shall be terminated upon occurrence of the relevant event.

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

Another scandal with the membership composition of the HCJ shows that the key body in the judiciary system remains primarily a political instrument. The way in which the powers of A. Vasylenko and M. Isakov were terminated has demonstrated that it is important for the political authorities to maintain control over the activity of the HCJ.

The composition of the High Council for Justice can not be reformatted without amending the Constitution, however it is possible to introduce a check on the integrity of the current members, and the failure to pass this check would be the basis for termination of authority. Such an examination could be provided by international experts, delegated by international organizations, for example, the Public Council of International Experts, which participated in the formation of the High Anticorruption Court.

It is also necessary to explore the possibilities for making constitutional changes to the procedure of the establishment of this body. As noted by the CPLR experts, under the present conditions not less than half of the membership of this body should be appointed with due regard of the public opinion.