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March

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 19 - 26 March

  • The Verkhovna Rada did not express the desire to release public activists from the responsibility of e-declaration
  • On March 22, 2018, it became known that the NACP does not comply with the recommendations of the European Commission aimed at increasing the effectiveness of the verification of electronic declarations
  • Opinion on the draft Law of Ukraine "On the Election of People's Deputies of Ukraine" № 7366-3

Political Points for 12 - 19 March

  • The work of the criminal justice authorities of Ukraine is paralyzed
  • Opinion on the draft Law of Ukraine "On the Election of People's Deputies of Ukraine (with the party lists open for public discussion)" No. 7366-2Opinion on the draft Law of Ukraine

Political Points for 5 - 12 March

  • The Supreme Anticorruption Court must ensure an effective and fair hearing of high-level corruption cases
  • Opinion on the Draft Law of Ukraine “On the Election of People’s Deputies of Ukraine” (with the party lists open for public discussion) No. 7366-1

Political Points for 26 February - 5 March

  • In any country of the world, the Criminal Code, no matter how strict, has not yet eradicated neither corruption nor terrorism, nor poverty, nor judicial arbitrariness
  • On March 4, the corruption scandal relating to O.O. Bogomolets National Medical University was widely publicized
  • Work on the draft law on the administrative procedure must be accelerated
  • The Constitutional Court ruled the "Language" law as unconstitutional

 

Political Points for 19 - 26 March

The Verkhovna Rada did not express the desire to release public activists from the responsibility of e-declaration

1. CPLR expert opinion                  

On March 23, 2017, the Verkhovna Rada voted (No.1975-19) for the abolition of necessary submission of e-declarations by some military servants, but at the same time, it required the submission of declarations by members of civic organizations.

On March 27, 2017, the President signed the above amendments to the Law "On Prevention of Corruption", but later he requested the deputies to cancel the requirement on the obligation of public activists to submit electronic declarations.

2. Respective authorities counter-point/argument

On March 22, 2018, the Chairman of the Verkhovna Rada of Ukraine tried several times to include in the agenda the draft laws No. 8120 and No. 8120-1, which are supposed to delay the submission of electronic declarations by public activists, as well as the draft law No. 6271 providing for the cancellation of declaration by the activists. However, the MPs have not voted for any of these draft laws.

3. CPLR assessment of the authorities counter-point

The Center for Policy and Legal Reforms has repeatedly expressed its opinion on this issue: the main arguments are set out in the CPLR Opinion (dated April 10, 2017).

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

Amendments introduced by the Law No.1977-19 to Articles 1, 3, 45, 46, 49, 60 of the Law "On Prevention of Corruption", contradict Part 3 of Art. 22, Articles 24, 32, 34, part 2 of Art.43, Articles 64 and 67 of the Constitution of Ukraine.

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

The provisions on the obligation of public activists to submit electronic declarations should be abolished in view of the fact that they contradict the rule of law in terms of violation of legal certainty, the right to freedom of association, the principle of equality and the prohibition of restrictions based on the type of activity, etc.

In addition, making public activists obliged to declare will violate the privacy right, stipulated by Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

On March 22, 2018, it became known that the  NACP does not comply with the recommendations of the European Commission aimed at increasing the effectiveness of the verification of electronic declarations

1. CPLR expert opinion

Based on the results of the in-depth analysis of the procedure of electronic declarations verification by the NACP, as conducted by the experts of the European Commission, a number of problems were identified in this area. Experts from this international organization have prepared 19 recommendations aimed at solving these problems. However, the NACP has considered only a few of them, and so the procedure for checking electronic declarations remained ineffective.

2. Respective authorities counter-point/argument

The NACP’s opinion on this issue is unknown.

3. CPLR assessment of the authorities counter-point

 –

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

There are no official documents that would oblige the NACP to act in this way. However, this should have been done because the recommendations were developed solely for the purpose of improving the NACP’s activities and were based on the analysis of many years of experience in a number of other countries on relevant issues.

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

 The NACP should carefully study the recommendations received, implement all those that can be implemented in current situation and with current possibilities, and start actively working on the launch of an automated system for verifying such declarations.

Opinion on the draft Law of Ukraine "On the Election of People's Deputies of Ukraine" № 7366-3

1.  CPLR expert opinion

In fact, March and April of 2018 are the last possible months for the adoption of an electoral reform, which is one of the most important for Ukrainian society. This should be done right now in order for the next parliamentary elections to be properly conducted by the Central Election Commission under the new rules.

The Verkhovna Rada of Ukraine deliberately sabotages this process for several years now. Apart from the Draft Election Code No. 3112-1, which was adopted in the first reading, there are other draft laws on electoral reform in the Parliament.

The Draft Law of Ukraine "On the Election of People's Deputies of Ukraine" No. 7366-3  (hereinafter referred to as the Draft Law) was registered on December 20, 2017 as an alternative to the  Draft Law No. 7366. The Draft Law was elaborated by MPs V. Chumak, N. Novak, D. Dobrodomov, C. Leshchenko, Y. Derevyanko, I. Popov and B. Bereza.

The provisions of the Draft Law, like of the draft law No. 7366-2,  are almost entirely based on the provisions stipulated by the draft law No. 1068-2, which was rejected by the People's Deputies in 2017. Insignificant differences exist only in the territorial organization of the elections and in the level of the electoral threshold.

2.  Respective authorities counter-point/argument                                                                                                            

None.

3. CPLR assessment of the authorities counter-point

Under the proportional system envisaged by the Draft Law, parliamentary elections will be held in 28 constituencies, the boundaries of which generally correspond to the boundaries of the regions. In the parliamentary elections, each party will put forward two types of lists - a single list of candidates in the national constituency and lists of candidates in the respective electoral regions from which a single list of candidates will be formed. In the electoral regions, voters will vote for the respective regional lists, rather than a single list of candidates. The voting will be exercised by typing the serial number of the list to the ballot paper. In addition, a voter may also optionally vote for a particular candidate included in the list for which he/she votes (also by typing his/her serial number to the voting bulletin). A voting bulletin that does not specify any serial number in the list will be considered invalid.

In accordance with the Draft Law, only those parties that were supported by at least 3% of voters on their regional lists in the national constituency shall be entitled to participate in the distribution of deputy seats. After identifying the parties that have overcome the electoral threshold, the CEC shall determine the election quotas - the number of votes needed to obtain one seat. This quota will be determined by dividing the number of all votes in the national constituency for all the regional lists of parties that have overcome the electoral threshold to the constitutional composition of the Verkhovna Rada of Ukraine (450). After this, the CEC will determine the number of seats that each regional party list will receive. With this purpose, the number of votes cast in the electoral region will be divided by an election quota, and the number received will be rounded to an integer. These seats will be received by candidates from a party in the electoral region who received the largest number of votes in their support. Unallocated seats of a party in the regions will be  given to a list of candidates from the same party in the national constituency. The seats in the list of party candidates in the national constituency will be replaced in the order of precedence, as determined by the list; while the candidates selected in the electoral regions will not be taken into account.

This Draft Law proposes to establish a nationwide quota for the distribution of seats. To some extent, this is an unusual model for systems with regional constituencies. However, in the Ukrainian context the proposed method has several advantages:

- Equal number of voters in the electoral constituencies is not critical for the formation of electoral constituencies.

- The price of a seat is the same throughout Ukraine.

- The national quota prevents the regionalization of parties.

The second feature of the Draft Law is that it proposes to introduce a two-stage method of the distribution of seats. This means that the number of compensatory seats that will be distributed at the national level will be quite significant. In Ukrainian conditions, this can be considered as an advantage rather than a disadvantage. Firstly, the leadership of political parties retains influence on regional party organizations. From 11 to15 seats (10 - 15%) will be distributed to the leading parties at the national level. Instead, for the borderline parties, the proposed system is in fact a system with closed lists, since in the electoral constituencies they will not, for the most part, gain the votes necessary to obtain at least one seat.

In summary, the proposed system:

- Offers a balance between regional party organizations and party leadership.

- Stimulates the nation-wide nature of the parties.

- It does not preserve the existing party system and gives a chance to small parties to get to the Parliament.

The third feature of the Draft Law is the method of moving the individual candidate in the regional list. For this purpose, the percentage of votes cast for him/her is established in comparison with the number of effective voters in that region. This percentage is determined precisely to the whole by rejecting the fractional part. That is, in order for a candidate to move above, it is necessary to score 1% more votes than a neighboring candidate in the list. Although this method reduces the degree of openness of the list, at the same time it prevents unfair intra-party competition.

For the Expert Opinion of the CPLR on the Draft Law on the Election of People's Deputies (Majority System) No. 7366-3, see the link.

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

The introduction of a proportional electoral system with open party lists corresponds to the Coalition Agreement and the Plan of Legislative Support to Reforms in Ukraine.

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

Therefore, the proposed Draft Law is fully compliant with the Coalition Agreement, the recommendations of international organizations (PACE Resolution No. 1549 (2007), PACE Resolution No. 1755 (2010), Opinion of the Venice Commission CDL-AD (2011) 037 dated October 17, 2011), duly protects the rights of internally displaced persons and Ukrainians living abroad, allows the election of the constitutional composition of the Verkhovna Rada of Ukraine.

At the same time, the Draft Law has weaknesses concerning the introduction of a rigid gender quota, the lack of restrictions on the size of the party's election fund and restrictions on political advertising on television and radio. In case of the rejection of the draft Election Code, we recommend to support this draft law in the first reading under condition of its further elaboration.

 

Political Points for 12 - 19 March

 

                                       The work of the criminal justice authorities of Ukraine is paralyzed                                                                 

1. CPLR expert opinion

On March 16, the amendments to the Criminal Procedure Code, which were adopted on October 3, 2017 together with other procedural codes that were necessary for the establishment of the new Supreme Court, entered into force. These amendments also included a number of provisions which are extremely harmful for the investigation of crimes, the so called "Lozovyi amendments." In particular:

1. Appealing to a court with a petition for the application of criminal proceedings measures, especially preventive measures and searches, is possible only to the court at the place of registration of the investigation authorities. That is, all petitions are considered only in 25 local courts of regional centers.

2. Any examination (forensic examination of the causes of death, economic examination for the evaluation of damage, forensic assessment of the severity of bodily injuries, etc.) is currently being conducted only upon the decision of the investigating judge. This creates an excessive burden for ordinary citizens. In the case of death of a person and suspicion of violent death, an investigator may appoint an examination only upon the availability of a court decision.

3. The monopoly of the state for conducting examinations in criminal investigations is established. This will lead to the spread of corruption, since the choice of the place of examination will be narrowed significantly, and it will greatly affect the time for conducting an examination.

4. The terms of pre-trial investigation in criminal proceedings in which no person was notified of suspicion are now limited to 12 months (for crimes of small and medium gravity) and 18 months (for grave and especially grave crimes). That is, the new system changes the time for calculating the pre-trial investigation period from the moment of the notification of suspicion to the moment the information is entered into the registry of investigations. After the expiry of specified deadlines and the absence of suspected persons, the proceedings would need to be closed, although the limitation periods for prosecution under the Criminal Code are not expired.

5. The possibility to cancel suspicion reports by a court brings back the corruption practices that existed before 2012 and leads to blocking investigations.

The new rules of investigation apply exclusively to new cases initiated after March 16. Nevertheless, currently both the courts and the prosecution in practice find it difficult to understand the rules that came into force. It already leads to legal chaos, abuse and worsens the efficiency of the investigation.

2. Respective authorities counter-point/argument

The Prosecutor General, the Head of the National Police, the Minister of the Interior and representatives of the judiciary repeatedly publicly declared that the new rules should not be enforced. They jointly project that this will lead to a "collapse of the law enforcement system". This position was supported by the Committee on Legislative Support of Law Enforcement Activity of the Verkhovna Rada of Ukraine.

3. CPLR assessment of the authorities counter-point

The position of the authorities in general is supported by the expert environment. The amendments violate the balance between an effective pre-trial investigation of crimes and the safeguarding of the rights of individuals. Slowdown of the investigation process by creating queues in the courts will have a negative impact on the investigation process, in particular the restoration of justice for victims of crimes.

At the same time, amendments to the CPC became the subject of political bargaining, rather than weighed legal proposals to the CPC. That is why, in a situation where the expert community and law enforcement agencies are opposed to the amendments, they still enter into force.

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

The Constitution of Ukraine, the Criminal Procedure Code, the Law of Ukraine "On Forensic Examination"

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

On March 15, the Verkhovna Rаda rejected the Draft Law No. 7547 prepared with the involvement of the Center's experts, which provided for the abolition of the new provisions of the CPC for all criminal proceedings. At the same time, the specialized Committee prepared a compromise version of this draft law, which left some of the new rules for crimes in the field of economic activity, official activity and crimes against justice.

After the rejection of this draft law, the problem can be solved by registering a new draft law that would return the text of the CPC to the previous version.

 
Opinion on the draft Law of Ukraine
"On the Election of People's Deputies of Ukraine" No. 7366-2
 

1. CPLR expert opinion

The Draft Law of Ukraine "On the Election of People's Deputies of Ukraine" No. 7366-2 (hereinafter referred to as the Draft Law) was registered on December 20, 2017 as an alternative to  the Draft Law No. 7366. It was elaborated by the People's Deputies L. Yemets, G. Hopko, N. Veselova and N. Yednak.

To a large extent, the provisions of the Draft Law, primarily on the election procedures, are based on the norms stated in the Draft Law No. 1068-2, which was rejected by the People's Deputies in 2017.

2.  Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

Under the proportional system envisaged by the Draft Law, parliamentary elections will be held in 28 constituencies, the boundaries of which generally correspond to the boundaries of the regions (except for the Dnipropetrovsk region and the city of Kyiv). In the elections, each party will put forward two types of lists - a single list of candidates in the national constituency and lists of candidates in the respective electoral regions from which a single list of candidates will be formed. In the electoral regions, voters will vote for the respective regional lists, rather than a single list of candidates. The voting will be exercised by typing the serial number of the list to the ballot paper. In addition, a voter may also optionally vote for a particular candidate included in the list for which he/she votes (also by typing his/her serial number to the voting bulletin). A voting bulletin that does not specify any serial number in the list will be considered invalid.

Only those parties that were supported by at least 4% of voters on their regional lists in the national constituency shall be entitled to participate in the distribution of deputy seats.

After identifying the parties that have overcome the electoral barrier, the CEC shall determine the election quotas - the number of votes needed to obtain one seat. Moreover, these election quotas are determined separately for each electoral region and for the national constituency.

After this, the CEC will determine the number of seats that each regional party list will receive. In each electoral region, deputy seats are distributed among the regional electoral lists of party candidates in proportion to the number of votes cast in support of the respective regional election list. In order to determine the number of deputy seats obtained by a regional election list of party candidates, the number of votes cast in the electoral region in support of the respective regional election list shall be divided by an electoral quota. The whole part of the received share shall constitute the number of deputy seats received by candidates included in the respective regional election list from this party.

Candidates who have the fraction of the division of the votes cast for them by the total number of votes submitted in support of the respective regional party election list of not less than 0.005, shall be placed in the top of the regional election list of the respective party in descending order of their respective shares.

In order to determine the number of seats received by a party within the national electoral constituency, the number of votes cast for all the regional election lists of candidates from this party within the national constituency is divided by an election quota for the national electoral constituency.

With this purpose, the number of votes cast for him/her in the electoral region will be divided by an election quota, and the number received will be rounded to an integer. These seats will be given to candidates from the party in the electoral region who received the largest number of votes in their support. Unallocated seats in the constituencies will be given to a list of candidates from the same party in the national constituency. The seats in the list of party candidates in the national constituency will be replaced in the order of precedence, as determined by the list; while the candidates selected in the electoral regions will not be taken into account.

For the Expert Opinion of the CPLR on the Draft Law on the Election of People's Deputies No. 7366-2, see the  link.

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

The introduction of a proportional electoral system with open party lists corresponds to the Coalition Agreement and the Plan of Legislative Support to Reforms in Ukraine.

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

The proposed Draft Law is fully compliant with the Coalition Agreement, the recommendations of international organizations (PACE Resolution No. 1549 (2007), PACE Resolution No. 1755 (2010), Opinion of the Venice Commission CDL-AD (2011) 037 dated October 17, 2011), duly protects the rights of internally displaced persons and Ukrainians living abroad, contains significant restrictions on political advertising. At the same time, the Draft Law has weaknesses concerning the introduction of a rigid gender quota, and the impossibility of electing the constitutional composition of the Verkhovna Rada of Ukraine. In case of the rejection of the draft Election Code, we recommend to support this draft law in the first reading under condition of its further elaboration.

 
 
Political Points for 5 - 12 March
 
 
The Supreme Anticorruption Court must ensure an effective and fair hearing of high-level corruption cases
 

1. CPLR expert opinion

The Supreme Anticorruption Court must ensure an effective and fair hearing of high-level corruption cases. The judges of this court must go through an honest competition and receive unanimous support from representatives of the public, international partners and, finally, the Ukrainian government bodies.

The draft law No.7740, adopted in the first reading, needs to be substantially revised to achieve these goals.

2. Respective authorities counter-point/argument

The President expressed his opposition to the decisive participation of international experts, as it contradicts the state sovereignty of Ukraine.

3. CPLR assessment of the authorities counter-point

No judge, even the one selected with the participation of international experts, can be appointed without the decision of the Ukrainian government bodies which are adopting the final decision - the Supreme Council of Justice and the President. Consequently, the participation of international experts does not violate the state sovereignty.

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

The Constitution of Ukraine, the Law “On the Judicial System and the Status of Judges”, the conclusion of the Venice Commission, the opinion of the EU, the letter of the IMF and the letter of the World Bank.

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

When finalizing the draft law before the second reading, it is important to consider the following:

1) participation of the Public Council of Integrity in the selection process should be maintained, however, its negative conclusion should hamper the appointment to the position of an anticorruption judge (the IMF insists on preserving the PCI’s participation, and the Venice Commission also recommended that the procedure for selecting anticorruption judges differed from that applicable to the selection of other judges only to the necessary extent);

2) international experts should play a decisive role in the selection process as part of a special panel of the High Qualification Commission of Judges (participation of international experts will reduce the risk of fraud by the existing members of the HQCJ, which was clearly seen during the selection process for the new Supreme Court);

3) a special board of the HQCJ (4 international experts and 3 members of the HQCJ, approved by the Public Council of Integrity) should conduct a positive selection - that is, selection of the best of the contenders;

4) the requirements for future anti-corruption judges stipulated in the draft law are unrealistic for the purpose of selection of the full composition of a court, therefore, it is necessary to expand the range of persons potentially able to take part in the competition;

5) the powers of the cassation authority in cases of high-level corruption should not be exercised  by the current judges of the Supreme Court, selected in a manipulative way, but it is necessary to establish an Anticorruption Chamber of the Supreme Court in accordance with the rules of selection of anticorruption judges.

It is important to note that international experts can be more successful in positive selection (the best choice). In the meantime, the draft law, unfortunately, provides for the participation of international experts in the negative selection (the withdrawal of unfair candidates).

Another important point is that simultaneously with the Law "On the Supreme Anticorruption Court" it is necessary to adopt a law on the formation of this court, the draft of which must be promptly submitted by the President to the Parliament in accordance with the Constitution. Otherwise, the authorities may delay the establishment of the court, even having adopted the Law "On the Supreme Anticorruption Court".

 
      Opinion on the Draft Law of Ukraine “On the Election of People’s Deputies of Ukraine”
(with the party lists open for public discussion) No. 7366-1
 

1.  CPLR expert opinion

The Draft Law "On the Election of People's Deputies of Ukraine (with the party lists open for public discussion)" No. 7366-1 (hereinafter referred to as the Draft Law) was registered on December 20, 2017 as an alternative to the draft Law No.7366. It was elaborated by the People's Deputies from “Batkivshchyna” faction headed by Yulia Tymoshenko.

Legislative support for electoral procedures is at a rather high level; however the authors did not take into account changes in the legislation on political parties, on counteracting political corruption, etc.

The title of the Draft Law (with the party lists open for public discussion) is deliberately misleading, since in reality the Draft Law envisages holding parliamentary elections under proportional electoral system in a national constituency with closed party lists.

2. Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

 Parties that have received support of not less than five per cent of the actual votes of the voters within the national constituency are allowed to participate in seat allocation.

The deputies’ seats are distributed among the national electoral party lists subject to the election process in proportion to the number of votes received by these lists.

The national election list of a party includes not less than one hundred and no more than four hundred and fifty candidates. Each candidate, except for the first five, is assigned to the Autonomous Republic of Crimea, or an oblast, or cities of Kyiv or Sevastopol, and in case of his/her election, he/she will be assigned to this territorial unit as a people’s deputy of Ukraine. The number of candidates assigned to the region is determined on the basis of not more than two candidates per the territorial constituency and at least three candidates per region. The first five people in the national electoral list are not assigned to territorial constituencies. The ranking of candidates in the list is determined at the congress (meeting, conference) of a party, taking into account the equal allocation of candidates by regions.

For the Expert Opinion of the CPLR on the Draft Law on the Election of People's Deputies (Majority System) No. 7366-1, see the link.

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

 The introduction of a proportional electoral system with closed party lists contradicts the Coalition Agreement and the Plan of Legislative Support to Reforms in Ukraine.

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

The Verkhovna Rada of Ukraine, taking into account the pre-assumed obligations, should reject the draft Law on the Election of People's Deputies No. 7366-1.

 

Political Points for 26 February - 5 March

In any country of the world, the Criminal Code, no matter how strict,

has not yet eradicated neither corruption nor terrorism, nor poverty, nor judicial arbitrariness

1. CPLR expert opinion

The draft law on the improvement of specific provisions aimed at the inevitability of punishment for persons who committed corruption crimes No. 8077 dated 28 February, should be withdrawn by the author. On 5 March, the subject of legislative initiative has already done so upon our request.

2. Respective authorities counter-point/argument

This draft law, developed by the Prosecutor General's Office, proposes to increase the punishment for certain corruption crimes and establish other grounds for criminal liability of judges for deliberately unlawful judicial decisions.

3. CPLR assessment of the authorities counter-point

The draft law creates conflicts in the Criminal Code, offends the independence of the court, while all sentences that may be imposed on judges for the adoption of their unlawful decisions must be abolished by higher courts due to the outright legal uncertainty of the law on criminal liability.

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

The draft law contradicts many decisions of the Constitutional Court of Ukraine and the European Court of Human Rights in relation to the obligation of the legislator to adhere to the principles of proportionality and legal certainty, as well as provisions of Articles 61, 65 of the current Criminal Code.

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

In order to ensure the principle of inevitability of criminal liability for corruption crimes, it is necessary to abolish in the Criminal Code and the Criminal Procedure Code the provisions permitting the release of criminal liability  in connection with “active repentance", "admitting to bail", "change of circumstances", "reconciliation with affected party", as well as to determine the specific cases in which the judge is obliged to remove the suspect from office, to seize his/her property, to apply deprivation of the right to hold positions and special confiscation.

On March 4,  the corruption scandal  

relating to O.O. Bogomolets National Medical University was widely publicized

1. CPLR expert opinion

Students of the NMU publicly argue that permanent corruption is going strong in this higher educational institution. Professors require illegitimate benefits for everything, from current assessments (remedy of unsatisfactory grades) to completion of modules, tests and examinations. Representatives of the NGO "Students’ Brotherhood" confirm this fact and add that the management constantly abuses its powers (including in terms of spending budget funds). According to the representatives of the Ministry of Health of Ukraine, the very fact of the high level of corruption combined with the low level of students' knowledge led to the deliberate failure by the management to pass the official licensing testing (KROK), which would have to demonstrate the true knowledge level of medical students.

2. Respective authorities counter-point/argument

The management of the NMU has not yet commented on the situation with corruption in the institution, but argues that the obstruction of official licensing testing at the NMU was due to lack of budget funding.

3. CPLR assessment of the authorities counter-point

The argument of the NMU’s Rector sounds weighty, but the counter-argument of the MOH pointing out that all other medical universities have passed the testing with similar funding, is worth attention.

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

The Law "On Prevention of Corruption", the Criminal Code and the Criminal Procedure Code of Ukraine require: 1) from the management of the NMU - to verify the publicized information and to take measures to stop the offenses and ensure bringing the defaulters to liability; 2) from the NACP - to carry out verification of information and transfer the collected materials to the law-enforcement agencies (in case of confirmation of the relevant facts); 3) from the law-enforcement agencies - to open criminal proceedings and start pre-trial investigation.

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

If each of the above-mentioned state institutions fulfils its obligations imposed by law, then the corruption problem and the problem with the introduction of "KROK" in the NMU will be resolved.

Work on the draft law on the administrative procedure must be accelerated

1. CPLR expert opinion

On 22 February 2018, the first meeting of the working group at the Ministry of Justice of Ukraine aimed at the consideration of the draft law "On the administrative procedure" took place. The working group includes Ihor Koliushko, Head of the Board of the CPLR, and Victor Tymoshchuk, Deputy Head of the Board of the CPLR. The purpose of the working group is to revise the elaborated draft law on the general administrative procedure, which received a positive conclusion of SIGMA Program in the end of 2014. This law is critically important for Ukraine, as Ukrainian administrative bodies adopt administrative rulings under different rules and procedures and predominantly without involving the interested persons, that is, without taking into account their position. However, some members of the aforementioned working group are skeptical about the need for such a law, or they do not realize the essence of its key provisions. The Ministry of Justice of Ukraine had the opportunity to submit the draft law on the administrative procedure, which was elaborated and approved by SIGMA Program and the expert environment, back in 2015, but instead decided to review and improve it.

2. Respective authorities counter-point/argument

The Ministry of Justice of Ukraine is of the opinion that the law on the administrative procedure should be adopted by the end of 2018, as stipulated by the Action Plan for the implementation of Public Administration Reform Strategy in Ukraine for 2016-2020.

3. CPLR assessment of the authorities counter-point

For the last 10 years, the Center of Policy and Legal Reforms is supporting the necessity of adopting a law on the general administrative procedure in Ukraine. In our opinion, the working group at the Ministry does not work effectively and spends time discussing secondary issues. We do not see the reasons for delaying the submission of the draft law on the administrative procedure to the Verkhovna Rada until the third quarter of 2018. This means that the aforementioned draft law must be submitted to the Parliament before the summer of this year. Otherwise, due to lengthy parliamentary procedures and parliamentary holidays, its final adoption will not take place by the end of 2018 or the beginning of 2019.

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

The Action Plan for the implementation of Public Administration Reform Strategy in Ukraine for 2016-2020, approved by the Government Resolution dated 24 June 2016 No. 474, stipulates the approval of the draft law on the administrative procedure by the Government and its submission to the Parliament in the third quarter of 2018. In accordance with this Plan, adoption of this law should take place from the fourth quarter of 2018 to the first quarter of 2019.

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

The above-mentioned working group needs to operate more actively. Its work should be intense and effective. We urge not delaying the submission of the draft law on the administrative procedure to the Parliament and doing it before the third quarter of 2018, as envisaged by the Action Plan for the implementation of Public Administration Reform Strategy in Ukraine for 2016-2020.

The Constitutional Court ruled the "Language" law as unconstitutional

1. CPLR expert opinion

 On February 28, the Constitutional Court of Ukraine adopted a Decision upon the case of a constitutional petition by 57 People's Deputies of Ukraine regarding the compliance of the Law of Ukraine "On Basic Principles of the State Language Policy" of July 3, 2012, No. 5029-VI, as amended, with the Constitution of Ukraine (constitutionality). The Law of Ukraine "On Basic Principles of the State Language Policy" was ruled as unconstitutional in general due to the violation of the constitutional procedure for its adoption, which is a fairly positive factor.

One of the aspects of the violation of the procedure for adoption of the law, as found by the Constitutional Court, was the violation of the provision on personal voting, which, together with other violations of the procedure, caused a material violation of the procedure for the adoption of the law established by the Constitution.

In connection with the decision of the Constitutional Court, the Law of Ukraine "On Basic Principles of the State Language Policy" has expired since the adoption of the decision of the CCU. Therefore, there is a legal vacuum around the language issue today. It requires prompt reaction of the Verkhovna Rada in the form of adoption of a new legislation.

2.   Respective authorities counter-point/argument

"The decision of the Constitutional Court opens an opportunity for us to consider and adopt a new language law," Andriy Parubiy said on March 1, 2018.

3.   CPLR assessment of the authorities counter-point

In terms of adopting legislation, including the language law, the Verkhovna Rada does not depend on the decisions of the Constitutional Court. It is bound by legal positions of the Constitutional Court and can not adopt unconstitutional laws, but the Verkhovna Rada could pass a new "Language" law even before the decision on the unconstitutionality of the "Language" law was adopted.

In particular, four draft laws were registered in the Parliament:  No. 5556, No. 5669, No. 5670, No. 5670-d.

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

Until the adoption of a new "Language" law, only Article 10 of the Constitution of Ukraine, the provisions of which are sufficiently wide, will be in force in Ukraine, and this will create problems for individuals and legal entities in everyday matters, for example, regarding the language of advertising.

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

The Verkhovna Rada of Ukraine must adopt a new "Language" law as soon as possible, in compliance with Article 10 of the Constitution of Ukraine and as prescribed by the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine".