exit
search

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 doboni@pravo.org.ua (Mariana Doboni, Сommunication manager).

Political Points for 25 March – 1 April 

Political Points for 18–25 March

Political Points for 11–18 March

Political Points for 4–11 March

 

Political Points for 25 March – 1 April 

First round of the presidential elections took place in Ukraine

1.   CPLR expert opinion

On March 31, 2019, presidential elections were held in Ukraine. According to preliminary information, none of the candidates received the majority of votes, therefore, a second round of voting is expected to be take place on April 21, 2019.

2.   Respective authorities counter-point/argument

Chairman of the Central Election Commission: "There were many different warnings, the level of tension of the campaign was quite high, a number of very serious issues that could be critical for the electoral process, some scenarios of the use of force, etc. have been raised. Therefore, it is really important for us to state that not only on the day of voting, but also the following night, when the polling stations were counting votes, no systemic violations were recorded."

President of Ukraine: "We have passed the test for our Europeanness. This means that we are doing everything right about the European course. This is in line with the European political culture and civilization standards of the European Union. I am strongly convinced that today Ukraine has successfully passed this exam. Moreover, on April 21 we will also cope with the task of protecting the will of people."

3. CPLR assessment of the authorities counter-point

During the first round of voting at the presidential elections, there were no significant and systemic violations that could affect the outcome of the election, so it can be stated that the elections took place.

According to the results of the National Exit Poll published on March 31, the voting results for the first 5 candidates are as follows: Volodymyr Zelenskiy – 30.6%, Petro Poroshenko – 17.8%, Yuliia Tymoshenko – 14.2%, Yuriy Boyko – 9,7%, Anatoliy Hrytsenko – 7,1%. According to the results of the Central Election Commission's calculation of 98.16% of ballots, the votes were distributed as follows: Volodymyr Zelenskiy – 30.24%, Petro Poroshenko – 15.93%, Yuliia Tymoshenko – 13.39%, Yuriy Boyko – 11,66%, Anatoliy Hrytsenko – 6,93%. According to the findings of the Civic Network "Opora", the regular presidential elections of March 31, 2019 took place under competitive conditions and in compliance with the basic standards of this election, and cases of violations of national legislation did not become a critical obstacle for citizens to exercise their right to elect and be elected.

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

The Constitution of Ukraine, the Law of Ukraine “On the Election of the President”, the Law of Ukraine “On the Central Election Commission”.

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

In summary, now the most important task for the Ukrainian State is to achieve the logical result of the election process – the inauguration of the newly elected President, and one can state that the first step towards successful implementation of this task was made. Repeated voting should take place on April 21.

Political Points for 18–25 March

President will appoint at least 69 new judges to the Supreme Court 10 thereof having negative conclusions of the Public Council of Integrity

1. CPLR expert opinion

On March 19-20, the High Council of Justice (HCJ) was interviewing candidates for vacant positions of judges at the Supreme Court and decided to submit a proposal to the President on the appointment of 69 candidates, postponed the consideration of 8 candidates for 28 March and declined the appointment of 1 candidate.

Earlier, the Public Council of Integrity (PCI) issued conclusions on the unreliability of 10 candidates submitted to the President for appointment to the positions of the Supreme Court judges, of which there are three current members of the High Council of Justice, including its Chairman – I. Benedysiuk, who has received the state award from the President contrary to the law.

In the opinion of the CPLR experts, appointment to the Supreme Court of persons with a dubious reputation will negatively affect the level of trust in the activities of this body. In addition, consideration by the HCJ of the appointment of their colleagues, current members of the Council, to the judges’ positions, will raise legitimate doubts about the impartiality of such decisions. At the same time, the President is only authorized to appoint a person a judge’s position, but may not reject the candidate.

2. Respective authorities counter-point/argument

On March 7, the HCJ adopted a decision that the HCJ members who became the winners of the competition to the Supreme Court will not take part in the consideration of the materials concerning the persons recommended by the HQCJ for the appointment to the positions of a Supreme Court judge.

Before the meeting on the consideration of candidates, Andriy Boyko, a HCJ member, assured that "all reservations made by the PCI and other activists will be subject to the most thorough analysis." When asked about the existence of a conflict of interests among members of the HCJ, he noted: "I do not see any particular problems regarding a possible conflict of interest." "We know these colleagues. We have got an impression about the level of their competence, compliance with integrity standards and professional ethics. I do not think that joint work will have an impact or provide additional preferences," Andriy Boyko summed up, noting that each member of the Council will take a decision personally.

3. CPLR assessment of the authorities counter-point

1. Earlier, the experts were unable to assess the validity of the Commission's arguments to reject the findings of the PCI, as the High Qualifications Commission of Judges (HQCJ) did not make a decision. These decisions have not been made public yet, but were provided upon requests for access to public information.

At present, it can be stated that the Commission has no arguments against the facts set forth in the conclusions of the PCI. After disclosing the information from the PCI conclusion and explanations of the candidate, all decisions of the HQCJ are justified in the same way. The decision of the HQCJ Board contains the following conclusion: "Commission does not see the grounds for giving the candidate 0 points as an assessment on criteria of integrity and professional ethics," while the decision of the HQCJ adopted in the plenary regime is supported by the statement that the board "adopted a well-grounded decision".

While considering the candidates, the HCJ members did not ask them about all the circumstances that compromised them and became known to the HCJ. The HCJ does not provide grounds for positive decisions regarding candidates. Consequently, neither the HQCJ nor the HCJ gave a reasoned assessment to the facts noted in the conclusions of the Public Council of Integrity.

2. Removal of the HCJ members, who won the competitive selection to the Supreme Court, from solving the above issues related to submissions to the President of Ukraine does not mean that the risk of impartiality of other HCJ members is completely minimized, since the HCJ members – winners of the competition, continue to exercise their other powers as the Council members. In particular, they participate in solving working issues, review of disciplinary complaints, retain access to the Council's internal documents, and communicate with other members of the Council who have to decide on their appointment. I. Benedysiuk, as the Chairman of the HCJ, continues to exercise administrative powers in relation to the Council work organization.

Pre-defined impression of the HCJ members regarding the competence, compliance with the integrity standards and professional ethics by their colleagues, as stated by A. Boyko, does not stand in favor of the HCJ's impartiality. The HCJ had the opportunity to postpone consideration of the issue on its colleagues until the formation of the new HCJ, which should take place in the coming months.

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

According to Part 1 of Art. 88 of the Law of Ukraine "On the Judicial System and Status of Judges", the HQCJ adopts a motivated decision on the (non)confirmation of the ability of a candidate to administer justice in a relevant court. If the PCI in its conclusion finds that the candidate for a position of judge does not meet the criteria of professional ethics and integrity, the HQCJ may decide to confirm the ability of such a candidate to administer justice in a relevant court only if this decision is supported by at least eleven of its members.

According to Part 6 of Art. 81 of the Law of Ukraine "On the Judicial System and Status of Judges", on the basis of the results of the competitive selection to the Supreme Court, the HQCJ makes recommendations to the HCJ on the appointment of a candidate for a position of judge. Part 7 of this Article stipulates that the HCJ decides on providing a submission to the President of Ukraine regarding the appointment of a judge to a position in the Supreme Court.

In accordance with Part 4 of Article 37 of the Law of Ukraine "On the High Council of Justice", paragraph 1 of Part 19 of Article 79 of the Law of Ukraine "On the Judicial System and Status of Judges", the HCJ may decide to refuse a submission to the President of Ukraine regarding appointment to a position of a judge on the basis of a reasonable doubt as to whether the candidate meets the criteria of integrity or professional ethics or other circumstances that may adversely affect public confidence to the judicial system in connection with such appointment.

Paragraph 3 of part 5 of Article 20 of the Law of Ukraine "On the High Council of Justice" stipulates that a member of the HCJ is obliged to refuse to participate in the consideration of an issue upon the presence of circumstances that raise doubts in his/her impartiality.

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

Decisions of the HQCJ and the HCJ should be motivated, in particular, in case of rejection of the conclusions of the PCI.

The HJC should postpone consideration of the issue on providing a submission to the President of Ukraine on the appointment of persons who are current members of the HCJ (I. Benedysiuk, N. Volkovytska, M. Husak, T. Malashenkova) to the positions of judges before the expiration of their term of office. This issue could be considered by the newly formed HCJ.

Unfortunately, the activity of the HCJ did not remove justified doubts on the integrity and impartiality of the decisions made both by the HQCJ and the HJC in relation to the candidates. Promotion of candidates with negative findings of the PCI to the positions of judges in the Supreme Court in order for the President to appoint them before the presidential election may point to the political motivation of such appointments.

Results of the competitive selection to the Supreme Court provide another evidence to the necessity of introducing legislative and even constitutional amendments as to the procedure for the formation and composition of the bodies of judiciary governance (HQCJ and HJC), which should include at least half of the members of the public in the Commission

Political Points for 11–18 March

Draft law aimed at establishment of the dependence of judges and legalization of unfaithful conduct has been introduced to the Parliament

1. CPLR expert opinion

On February 26, 2019, 12 people’s deputies registered a draft law No.10090 amending the Law of Ukraine "On Judicial System and Status of Judges" regarding the improvement of certain provisions. The draft law has a chance for adoption since its co-authors are deputies from 5 of the 7 parliamentary factions and groups, most of whom are also representatives of the pro-government coalition (the group of authors does not include representatives of only two parties "Samopomich" and "Volya Narodu"). Key provisions of the draft law are limited to the following:

  1. cancellation of the prohibition for judges to apply to the elected positions in state authorities and local self-government bodies, as well as to participate in election campaigning;
  2. cancellation of the prohibition for judges to accept any kind of awards, including state awards;
  3. judges who participated in the competitive procedures and successfully passed the examination, and in relation to whom the High Qualifications Commission of Judges of Ukraine did not pass a decision on their incompatibility with the position (including those judges for whom the qualification assessment was terminated) are considered to be automatically qualifying;
  4. amendments introduced to the provisions of the law on ensuring adequate housing conditions for judges. Instead of providing judges with "corporate housing", it is proposed to supply "housing" to judges.

In the opinion of the CPLR experts, the adoption of this draft law may seriously worsen the situation with the independence of the judicial system and raise doubts on some of the achievements of judicial reform. Indeed, some provisions of the draft law directly contradict European standards (in particular, regarding the removal of restrictions on accepting awards by the judges), part of the provisions are aimed at legalization of the existing illegal practices, which consists in privatization of corporate housing for personal enrichment, another part thereof allows some judges to avoid verification for integrity within the limits of qualification assessment. It can be argued that these provisions are written for a particular person who heads the court dealing with the majority of lawsuits against the authorities.

Apparently, the only beneficiary of the amendment on the automatic qualification assessment is Pavlo Vovk, Chairman of the Kyiv Regional Administrative Court, who has got a negative conclusion of the Public Council of Integrity. The Public Council of Integrity has adopted such a conclusion because Pavlo Vovk received an award weapon from the Minister of the Interior, facilitated the privatization by the court judges of the apartments provided to them as corporate housing, and was recorded to have improper relations with politicians.

It is likely that the political forces will try to ensure the adoption of this draft law in exchange for guaranteeing a certain outcome of judicial proceedings. At present, the Kyiv Regional Administrative Court is considering the case on the invalidation of the Rules of Procedure of the Public Council of International Experts, as well as lawsuits on the lack of authority of certain members of the High Qualifications Commission of Judges. Satisfaction of these claims may raise questions about the outcome of the competitions to the High Anticorruption Court and the Supreme Court.

2. Respective authorities counter-point/argument

According to the press service of the Kyiv Regional Administrative Court, its Chairman Pavlo Vovk provided the following reasoning for one of the proposals of the draft law No. 10090 on the prohibition for judges to apply for elected positions: "The Basic Law of Ukraine explicitly and exhaustively determine both requirements to candidates for the positions of people's deputies Ukraine and the President of Ukraine, as well as categories of persons who are not eligible for such positions. However, none of the above mentioned legal provisions prohibit judges from being elected to these positions."

We did not manage to find out public opinions of the authorities regarding other provisions of the draft law.

3. CPLR assessment of the authorities counter-point

Abolition of the provision of the law on the prohibition for judges to run for election may potentially affect the independence of the judicial system, especially as regards the public perception of a judge as a politically neutral profession. Pursuant to paragraph 4.2 of the Bangalore Principles of Judicial Conduct, constant public scrutiny imposes additional responsibilities on a judge that he/she must accept voluntarily and willingly.

In addition, we consider that the reference to the provisions of the Constitution regarding the narrowing of the rights of judges in connection with the prohibition to apply for elected positions is manipulative. The current version of the law only interprets the provisions of Article 127 of the Constitution of Ukraine regarding the prohibition for judges to participate in any political activity.

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

According to paragraph 40 of the Joint Opinion of the Venice Commission and the Directorate General for Human Rights and Legal Issues on the Law of Ukraine "On Judicial System and Status of Judges" dated October 18, 2010, the possibility for judges to receive any awards is problematic from the viewpoint of the independence of judges, since it gives the opportunity to return thanks to the right people.

The practice of direct restriction of passive electoral rights of judges is not a Ukrainian innovation, it can be found in some other European countries. In particular, such restrictions exist in Spain, Portugal and Italy.

If a judge who passed a qualification assessment without an integrity check is recognized as qualifying, it will be contrary to the constitutional requirements that a judge should be not only competent but also honest (see Article 3, Article 127, sub-paragraph 4 of paragraph 16-1 of the Transitional Provisions of the Constitution Ukraine).

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

In the opinion of the CPLR experts, it is advisable to draw the attention of the people's deputies and international partners to the risks implied by the draft law No. 10090. Our position is that the draft law "On Amendments to the Law of Ukraine "On Judicial System and Status of Judges" regarding the improvement of certain provisions" No. 10090 dated February 26, 2019 should be rejected.

 

NABU reputation is threatened due to the disclosure of materials of journalistic investigation by Lesya Ivanova and BIHUS.INFO

1. CPLR expert opinion

On March 11, a TV program "Nashi Groshi with Denis Bihus" released a video "What was the price for closing criminal cases in the defense area? Role of NABU, SSU and the prosecutor's office (secret correspondence, pp. 4-5)." From the contents of this story and the corresponding publication "Army. Friends. Bucks. Parts 4 and 5" posted on the site bihus.info, it follows that NABU deliberately delayed the pre-trial investigation of criminal proceedings against theft in the defense sector, and some of its detectives actively contributed to the activities of one of the criminal groups that "specialized" on a systematic theft of public funds through the supply of low-quality or contraband spare parts to military equipment, the supply of these parts at overstated prices, for "kickbacks", etc.

2. Respective authorities counter-point/argument

On March 12, NABU published an explanation "Charging NABU with the facilitation of corrupt schemes in the defense sector is groundless" where it provided arguments to refute "allegations" that were made against NABU in the TV program "Nashi Groshi with Denis Bihus". Moreover, the same publication pointed attention to the fact that "none of the NABU staff members took bribes and for us this is an affair of honor to prove it legally." On March 15, an extended interview with Artem Sytnyk was published, where he denied all allegations to NABU and emphasized that NABU did not receive from the Prosecutor’s General Office all correspondence of the players in defense frauds and bribery of SSU, PGU, and the military prosecutor's office employees. According to the head of NABU, due to this very circumstance, a significant slowdown in the pace of investigation of relevant proceedings occurred. On March 17, "NABU comments on disclosed materials that were transmitted from PGU to NABU” were published in order to prevent manipulation and distortion of information on this issue.

3. CPLR assessment of the authorities counter-point

Absolute majority of "allegations" to NABU is based on correspondence materials, the validity of which has not yet been confirmed (for example, Y. Lutsenko has already stated that the PGU files do not include all information that was disclosed), and on assumptions that have not yet been officially confirmed. In this regard, any conclusions regarding both the above materials of the journalistic investigation and the official position of NABU in these matters would be premature and legally incorrect.

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

Since the published materials refer to the possible facts of committing corruption crimes, according to Article 214 of the Criminal Procedure Code, the competent authorities (State Investigation Bureau and Internal Control Division of NABU) should open criminal proceedings upon these facts.

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

On March 12, the SIB reported that it had already opened a criminal investigation of the possible facts of obtaining an unlawful benefit by officials of the PGU, SSU, SFSU and NABU for non-execution of pre-trial investigation and non-prosecution of persons involved in corruption in the defense sector. According to NABU representatives, an official investigation based on the facts of possible unlawful actions of the NABU employees related to the players of the published video was initiated even before the release of the last part of journalistic investigation into corruption in SE "Ukroboronprom". At the same time, according to Part 5 of Art. 214 of the CPC, the Internal Control Division of NABU must open criminal proceedings based on the facts disclosed on March 11 in the TV program "Nashi Groshi with Denis Bihus".

CPLR experts call on the public and international partners to first wait for the official results of the above criminal proceedings, and only then draw conclusions about the effectiveness, integrity and impartiality of certain employees of NABU and its leadership. Any premature conclusions may negatively affect reputation of the only yet untarnished anticorruption body in Ukraine.


Political Points for 4–11 March

More than 20% of the candidates questioned by the public may be appointed to the Supreme Court

1. CPLR expert opinion

On March 6, 2019, the High Qualifications Commission of Judges of Ukraine (HQCJ) approved the ratings of candidates for vacant positions of the cassation courts judges of the Supreme Court.  Four current members of the High Council of Justice (HCJ) expectedly received Commission recommendations for appointment, while three of them (І. Benedysiuk, N. Volkovytska and T. Malashenkova) had got negative conclusions of the Public Council of Integrity (PCI). The same recommendations were given to another 13 persons with negative conclusions of the PCI. In total, the Commission recommended the appointment of 78 persons to the Supreme Court, of which more than 20% (that is, one in five), do not meet the criteria of integrity and professional ethics, in the opinion of the PCI.

On the same day, recommendations of the HQCJ were provided to the HCJ, which, on their basis, should decide on making a submission to the President of Ukraine concerning the appointment of these persons to the positions of judges. Consideration of this issue is scheduled for March 19-20, 2019.

According to the experts, appointment of persons with dubious reputation to the Supreme Court will adversely affect the level of trust in the activities of this body, and will alternately confirm that the HQCJ selectively uses the findings of the PCI in some cases, unreasonably ignoring them in other cases. Current regulatory framework relating to the activities of the HQCJ and the PCI requires radical changes in terms of strengthening the role of the public. As the US Ambassador to Ukraine M. Jovanovic noted, "the Public Council of Integrity should be given more authority to prevent collapse of the judicial system due to the spoiled personnel."

In addition, if the HCJ is going to consider the appointment of their colleagues who are current members of the Council, to the positions of judges, it will raise reasonable doubts about the impartiality of the decisions taken.

2. Respective authorities counter-point/argument

M. Makarchuk, Member of the Commission, said at the briefing on the results of the competitive selection to the Supreme Court: "The candidates who had negative conclusions provided relevant documents and explanations on the issues that were raised to them. Although the representatives of the Public Council of Integrity did not always agree with explanations of the candidates, their recommendation to the appointment means that the Commission has carried out a thorough legal assessment of all materials, including those from numerous state bodies."

On March 7, 2019, the HCJ adopted a decision stipulating that the HJC members, who became the winners of the competition to the Supreme Court, will not participate in the consideration of materials regarding the persons recommended by the HQCJ for the appointment to position of the Supreme Court judge. This means that such HJC members will be removed from consideration of issues relating to the competitive selection to the Supreme Court.

3. CPLR assessment of the authorities counter-point

Given the absence of published decisions of the Commission at the time of providing recommendations to the HJC on the appointment of judges, it is impossible to assess the reasonableness of the Commission's arguments for rejecting the conclusions of the PCI.

Removal of the HCJ members, who won the competitive selection to the Supreme Court, from solving the above issues related to submissions to the President of Ukraine does not mean that the risk of impartiality of other HCJ members is completely minimized, since the HCJ members - winners of the competition, continue to exercise their other powers as the Council members. In particular, they participate in solving working issues, review disciplinary complaints, retain access to the Council's internal documents, and communicate with other members of the Council who have to decide on their appointment. I. Benedysiuk, as the head of the HCJ, continues to exercise administrative powers in relation to the Council work organization and management of its secretariat.

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

According to Part 6 of Article 81 of the Law of Ukraine "On Judicial System and Status of Judges", based on the results of the competitive selection to the Supreme Court, the HQCJ makes recommendations to the HCJ on the appointment of a candidate for the position of judge. Part 7 of this Article stipulates that the HCJ shall consider the issue of making a submission to the President of Ukraine regarding the appointment of a judge to the position in the Supreme Court.

In accordance with Part 4 of Article 37 of the Law of Ukraine "On the High Council of Justice", paragraph 1 part 19 of Article 79 of the Law of Ukraine "On Judicial System and Status of Judges", the HCJ may take a decision to refrain from making a submission to the President of Ukraine regarding the appointment of a judge on the basis of a reasonable doubt as to whether the candidate meets the criteria of integrity or professional ethics or other circumstances that may adversely affect public trust in the judicial system in connection with such appointment.

Paragraph 3 Part 5 of Article 20 of the Law of Ukraine "On the High Council of Justice" stipulates that the HCJ member is obliged to refuse to participate in the consideration of the issue upon availability of circumstances that raise doubts in his/her impartiality.

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

In the opinion of the CPLR experts, the HCJ should postpone consideration of the issue of making a submission to the President of Ukraine on the appointment of current members of the HCJ (I. Benedysiuk, N. Volkovytska, M. Husak, T. Malashenkova) to the positions of judges until expiration of their term of office. These issues should be considered by the newly formed HCJ.

The HCJ should provide an appropriate and motivated assessment of the circumstances set out in the conclusions of the PCI and prevent the appointment to the Supreme Court of candidates in relation to which there is least reasonable doubt as to their integrity.

Moreover, the results of the competitive selection to the Supreme Court brought another evidence to the need for legislative changes in terms of the formation procedure and composition of the HQCJ, which should provide that at least half of the Commission members are public representatives.