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May

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 27 May – 3 June 2019

Political Points for 20–27 May 2019

Political Points for 13–20 May 2019

Political Points for 6–13 May 2019

 

Political Points for 27 May – 3 June 2019

Constitutional Court of Ukraine opened the proceedings on the unconstitutionality of the dissolution of the Parliament

1. CPLR expert opinion

On May 24, people's deputies of Ukraine raised the issue of unconstitutionality of the Presidential Decree on early termination of parliamentary powers and the appointment of early elections before the Constitutional Court. Experts of the Centre of Policy and Legal Reform support this decision and share the opinion on the unconstitutionality of the Decree.

2. Respective authorities counter-point/argument

Petition was submitted to the Constitutional Court and has already been assigned to the judge-speaker. On May 29, 2019, the panel of the Constitutional Court opened the constitutional proceeding in the case. On June 4, the session of the Grand Chamber of the Constitutional Court determined an oral form of constitutional proceedings in the case under the constitutional petition and recognized constitutional proceedings as urgent. Consideration of the case is scheduled on June 11 at 10-00.

3. CPLR assessment of the authorities counter-point

It is of crucial importance that the Constitutional Court issues a Decision before the day of voting, otherwise, if the unconstitutionality of the presidential decree on early termination of parliamentary powers and appointment of early elections will be determined, the legality and, as a consequence, legitimacy, of the next convocation of Parliament will be in jeopardy. It is important to prevent such a development of events. Right now, the Constitutional Court, as the only body of constitutional jurisdiction, should take a proactive position and resolve the conflict between the Parliament and the President. Reaching the point when the political crisis will turn into a constitutional one is unacceptable.

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 CCU should adhere to the one-month term for the consideration of urgent cases and in accordance with Article 75 of the Law of Ukraine "On the Constitutional Court of Ukraine" adopt the Decision by June 29.

 

Attack on the HQCJ continues. In the frames of a civil case, the judge to be subject to assessment, prohibited the HQCJ to carry out an assessment

1. CPLR expert opinion

On May 27, 2019, I. Shepitko, the judge of the Suvorovsky District Court of Odessa, ruled on securing a claim in a civil case under a lawsuit of the High Qualifications Commission of Judges of Ukraine and a number of individuals regarding the misrepresentation of information, obligation to refute the invalid information, the recognition of actions as violating the right to a fair trial and the obligation to terminate them. By means of the said ruling the judge prohibited Kozyakov S.Y., Shchotka S.O., Zaritska A.O., Makarchuk MA, Mishyn M.I., Titov Y.G., Ustimenko V.E., Veselska T.F., as well as the HQCJ, as an entity, on behalf of which these persons act, to perform any actions on conducting a qualification assessment until the resolution of the case in essence. The ruling contains no rational justifications.

Having secured a civil claim by his ruling, the judge created the obstacles to the HQCJ in the exercise of its authority.

The judge, having opened the proceedings on the invalidation of information about the term of office of the HQCJ members, by ignoring the rules on the determination of jurisdiction, has secured the claim in a way that paralyzed the activities of the state body.

On May 29, 2019, the Odessa Court of Appeals suspended the effect of the ruling by I. Shepitko, putting forward the following grounds: "The very fact of the absence in the national legislation of Ukraine of a clear procedure for the effective and timely suspension of arbitrary court decisions adopted in the course of securing a claim, can not create reasonable obstacles for a court of appeals to prevent them from being enforced by terminating the effect of such decisions." That is, the Court of Appeals actually assumed that the ruling of Judge I. Shepitko was arbitrary.

We would like to remind that earlier in the political points dated 1-8.04.2019 and 20-27.05.2019, we reported on the facts of different entities’ actions that create the grounds for considering the current composition of the HQCJ to be unlawful.

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 Art. 92 of the Law of Ukraine "On the Judicial System and Status of Judges", the HQCJ is a state body for judiciary governance, which operates on a permanent basis in the justice system of Ukraine. Disputes with the HQCJ should be considered in accordance with the rules of administrative rather than civil proceedings. Lawsuits regarding appeals against decisions, actions or omissions of the HQCJ fall under the jurisdiction of the Supreme Court in accordance with Part 4 of Art. 22, Art. 266 of the Code of Administrative Proceedings of Ukraine. The law (part 3 of Article 151 of the Code of Administrative Proceedings of Ukraine) prohibits securing of a lawsuit by issuing an injunction for the HQCJ to take certain actions.

It follows from the contents of the ruling, that the judge considered a defamation dispute regarding the dissemination of information, which is incorrect, in the opinion of the claimant, about the existence of a six-year term of authority of the HQCJ members. Instead, securing of the lawsuit concerned the prohibition to the HQCJ members to exercise their powers that, in accordance with the provisions of Article 19 of the Code of Administrative Proceedings of Ukraine, falls into disputes, which are subject to the jurisdiction of administrative courts. In addition, the enforcement measure elected by a judge, was in no way relevant to the subject of the claim and did not affect the possibility of resolving the dispute in essence. Consequently, the judge, acting arbitrarily within the framework of a civil dispute, has satisfied the claim, which was to be decided by another court under the administrative procedure. There are also grounds to claim that in this case the territorial jurisdiction was artificially changed. In particular, in order to get the case to the Suvorovsky District Court of Odessa, the claimant indicated his neighbor as one of the co-defendants.

In addition, as it follows from the agenda of the HQCJ meetings, an interview with judge I. Shepitko should take place on June 4, 2019, that is, one week before the judge's ruling on securing the claim. Consequently, the motive for the judge's decision could be the intention to avoid qualification assessment by creating an artificial conflict of interests with the members of the HQCJ.

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

We believe that in this case there is every reason to initiate a disciplinary proceeding against a judge and also to file a statement on a crime with the State Bureau of Investigations for the introduction of information about the criminal offense into the Unified Register of Pre-trial Investigations, in accordance with Article 375 of the Criminal Code of Ukraine – issuing by a judge (judges) of a deliberately unjust sentence, decision, decree or ruling.

 

Director of the SBI dismissed the leadership of the territorial department contrary to the requirements of the Law

1. CPLR expert opinion

On May 28, the Director of the State Bureau of Investigations dismissed from the office the following officials: the Director of the Territorial Department in Poltava, the Head of the Second Office for Pre-trial Investigations, the Head of the Planning and Finance Department and the Head of the Operation Support Department. They were dismissed due to inconsistency with their positions following the probation period provided for by the Law "On Civil Service".

2. Respective authorities counter-point/argument

The Director of the SBI immediately commented on the above decision to dismiss officials, stating that "the probation period is a normal practice both in state bodies and in private companies".

3. CPLR assessment of the authorities counter-point

Such a dismissal procedure does not meet the requirements of the Law "On the State Bureau of Investigations". In particular, the Law states that the director of the SBI shall appoint and dismiss from office the directors of territorial bodies, heads of departments of the central apparatus of the SBI upon submission of the Competition Commission (Article 13). In addition, the Director must approve such a submission with his deputies (Paragraph 1 of Part 9, Part 2 of Article 12 of the Law). The Director of the SBI did not bring legal arguments in favor of his position. Moreover, the First Deputy Director Olga Varchenko made a public statement against his decision.

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

The Constitution of Ukraine, the Law "On the State Bureau of Investigations".

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

The Director of the SBI should cancel the said decisions and further resolve personnel issues exclusively in a manner determined by the law.

 

President of Ukraine expects tangible results in the investigation of corruption crimes

1. CPLR expert opinion

On May 31, the newly elected President of Ukraine Volodymyr Zelensky met with Director of the National Anti-Corruption Bureau of Ukraine Artem Sytnyk and Head of the Specialized Anti-Corruption Prosecutor's Office Nazar Kholodnytsky. As stated on the official website of the President, the purpose of the meeting was to discuss proposals for improving the interaction of specialized anti-corruption bodies, seeking ways to increase the efficiency of their work.

The President assured that he would ensure the independence of these bodies and protect them from interference in their activities, and also noted that "the presence of tangible results in the investigation of resonant corruption crimes over the next three months will be an indicator of the ability of the SAP and the NABU to respond to the expectations of Ukrainians."

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

In general, the position of the newly elected President is correct, but only the actions of the President himself and his team members can testify to the extent to which he is ready to adhere to the positions he has declared. Presently, one of the first steps of the President has demonstrated his support for specialized anti-corruption bodies: Volodymyr Zelensky instructed the Ministry of Foreign Affairs to immediately inform the Council of Europe and the UN about the authority of the NABU to carry out international cooperation in criminal proceedings with the competent authorities of foreign states. Experts from the USA, Denmark and Ukraine, who carried out an expert analysis of the NABU's activity, expressed this recommendation a year ago.

It is difficult to assess the realism of the President's demand to the leadership of the NABU and the SAP to demonstrate tangible results in the investigation of resonant corruption crimes over the next three months. Obviously, such a short period may not be sufficient for a complete, comprehensive and unprejudiced investigation of complex corruption schemes. Three months may not be enough to collect all the necessary evidence. Another fact that complicates the situation is that it is not clear what will be "the achievement of tangible results" in the understanding of the President – notification of individuals about suspicion of committing corruption crimes, sending indictments to the court or sentencing against the persons concerned? Moreover, earlier, the NABU and the SAP demonstrated their ability to effectively investigate criminal proceedings against high-ranking officials (although it seems that the dynamics of such investigations has somewhat deteriorated over the last year), however, the sentences in resonant proceedings are still not issued due to excessive length of trial.

At the same time, the statement of the Acting Head of the Security Service of Ukraine Ivan Bakanov, who said that the President had set the task "to overcome corruption" to the SSU is of somewhat concern. This may lead to duplication of the functions of various pre-trial investigation bodies and does not correspond to the objectives of the SSU's reform, according to which this body should be deprived of irrelevant functions. One of them is combatting corruption. A more effective step would be to eliminate the problems, due to which at present there is no effective interaction between the NABU and the SAP with the SSU, in particular during the conduct of secret investigative (search) actions. For example, it is extremely important to ensure the effective cooperation between the NABU and the SSU in the course of the wiretapping activities and eliminate the opportunities for information leakage.

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

The President should adhere to the positions declared by him on the comprehensive support of specialized anti-corruption bodies and ensuring their independence. The first step to support the NABU has already been made and the presidential team should not stop with it.

The NABU and the SAP should intensify their investigations into high-level corruption crimes, however, the high level of investigation efficiency should not be achieved at the cost of incompleteness and deterioration in the quality of pre-trial investigations.

The priority in the SSU’s activities should be not to combat corruption in isolation from all other bodies, but to provide the necessary support to detectives of the NABU and prosecutors of the SAP, in particular in terms of withdrawal of information from transport telecommunication networks and elimination of opportunities for information leakage on the conduct by the NABU detectives of pre-trial investigation of specific corruption crimes.

Subsequently, the President could propose the adoption of a new Anticorruption Strategy, which would define the main goals and priorities of this state policy for the period of his authority. Attention should also be paid to restoring confidence and enhancing the capacity of the National Agency for the Corruption Prevention and the SAP.

 

Political Points for 20–27 May 2019

62 people’s deputies addressed the Constitutional Court regarding the unconstitutionality of the dissolution of Parliament

1. CPLR expert opinion

On May 24, people's deputies of Ukraine raised the issue of unconstitutionality of the Presidential Decree on early termination of powers of the Parliament and the appointment of early elections before the Constitutional Court. Experts of the Centre of Policy and Legal Reform support this decision and share the position on the unconstitutionality of the Decree.

2. Respective authorities counter-point/argument

The Constitutional Court received the submission and, at this stage, assigned it to the judge-speaker.

3. CPLR assessment of the authorities counter-point

The Constitutional Court should consider the submission of people’s deputies and adopt a Decision on the (un)constitutionality of early termination of parliamentary powers.

This is critical for the Constitutional Court to adopt it before the day of voting, because in the opposite case, subject to the establishment of unconstitutionality, the legality and, as a consequence, legitimacy, of the next convocation of Parliament will be in jeopardy. It is important to prevent such a development of events. Right now, the Constitutional Court, as the only body of constitutional jurisdiction, should take a proactive position and resolve the conflict between Parliament and the President. It is unacceptable to reach the point at which the political crisis will turn into a constitutional one.

To this end, the Constitutional Court should determine this constitutional proceedings as urgent, and, in accordance with the procedure stipulated by part three of Article 75 of the Law of Ukraine "On the Constitutional Court of Ukraine", consider constitutional proceedings within one month.

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.

We call on the Constitutional Court to determine constitutional proceedings as urgent and to consider it within one month.

 

Rivne precedent: return of repressive practices against participants in peaceful gatherings?

1. CPLR expert opinion

According to the media, in Rivne, two members of the peaceful gathering in support of the impeachment of the President of Ukraine V. Zelensky were detained by the police for "unauthorized" peaceful assembly. The police officers issued administrative protocols in relation to the participants of the action under Article 185-1 of the Code of Ukraine on Administrative Offenses (CUoAO) "Violation of the procedure for organization and holding of peaceful gatherings". Bringing them to administrative liability is motivated by the fact that the participants of the peaceful assembly did not notify on its holding in accordance with the established procedure. In addition, since one of the "offenders" is a minor girl, an administrative protocol was drawn up against her mother for the failure of parents to perform their duties on the education of children under Art. 184 of the CUoAO.

Experts of the Centre of Policy and Legal Reform are of the opinion that the detention of the participants in the gathering and the drawing up of administrative protocols against them is a manifestation of arbitrary actions of the police. In accordance with the case law of the European Court of Human Rights, which is the source of law in Ukraine, breaking up the demonstration solely because of the lack of prior notification, in the absence of any unlawful actions by the demonstration participants, is not in line with the criterion of "the need for a democratic society". Thus, in the case “Bucta agaings Hungary”, the European Court concluded: "In cases where an immediate response to a political event in the form of a demonstration is being considered, the decision to break up the demonstration solely because of a lack of prior notification, in the absence of any unlawful actions by the demonstrators, constitutes a disproportionate restriction of the freedom of peaceful assembly" (p. 36).

In addition, although the Constitution of Ukraine contains a general provision on the need to notify executive authorities and local self-government bodies on the holding of a peaceful assembly, there are no legislative norms in Ukraine that specify this provision. In particular, the laws do not have specific provisions as to which executive authorities or local governments should be notified, and the timing for making such a prior notification. In view of the existence of such legal gaps, the question arises whether citizens can, under existing legal regulation, foresee the consequences of their actions of not reporting about the peaceful assembly. The answer to this question was given by the European Court of Human Rights in the case of “Verentsov against Ukraine”. According to the Court’s opinion, "the Constitution of Ukraine provides certain general rules on possible restrictions on freedom of assembly, but these rules require further development in national legislation .... Having analyzed the national law on peaceful gatherings, the European Court of Human Rights resolved that "it is impossible to conclude that the "procedure" specified in Article 185-1 of the Code of Ukraine on Administrative Offenses is sufficiently clear in order to enable an applicant to foresee, to the extent that it was substantiated by circumstances, the consequences of his/her actions " (paragraph 54).

2. Respective authorities counter-point/argument

The Spokesman  of the National Police stated, that the police would conduct an official investigation of the police officers’ actions during the incident in Rivne, when administrative protocols were drawn up against the participants of the gathering for the impeachment of the President. According to him, from the legal point of view, police officers acted within the framework of their responsibilities, but they could apply milder methods of influence, for example, conduct a preventive and explanatory conversation and issue a verbal warning. The National Police Spokesman also informed that an explanatory discussion will be conducted with the staff member of the police department about one of the principles of police reform, namely – in which cases the methods of communication with citizens on the clarification of compliance with the requirements of the law should first be applied.

The President of Ukraine V. Zelensky also reacted to the situation on Facebook. "I explored the situation regarding the alleged arrest of a boy and girl who arranged a protest against me in Rivne. There was no detention, but police officers could act less severely. The police will conduct an official check. I urge the Ministry of Internal Affairs not to take actions against political protesters if people do not violate the public order. I'm not afraid of the criticism."

3. CPLR assessment of the authorities counter-point

Experts of the Centre of Policy and Legal Reform do not agree with the assessment of the Spokesman of the National Police of Ukraine on the actions of the police officers as being carried out within the limits of their responsibilities. Commentary by the Spokesman of the National Police of Ukraine and actions of the police officers testify to the insufficient level of police awareness on Ukrainian legislation and international standards regarding the right to peaceful assembly. At the same time, we can welcome the decision of the National Police leadership on the appointment of an official investigation on this incident.

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

According to Article 39 of the Constitution of Ukraine, citizens have the right to gather peacefully, without weapons and to hold meetings, rallies, campaigns and demonstrations, about which executive bodies and local self-governments are notified in advance.

Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order - in order to prevent disturbances or crimes, to protect public health or the rights and freedoms of others.

Article 92 of the Constitution of Ukraine provides that the rights and freedoms of a person and a citizen, guarantees of these rights and freedoms and main duties of a citizen may be determined only by the laws;

According to the judgment of the European Court of Human Rights in the case “Verentsov against Ukraine”, "the Constitution of Ukraine provides certain general rules on possible restrictions on freedom of assembly, but these rules require further development in national legislation .... Having analyzed the national law on peaceful gatherings, the European Court of Human Rights resolved that "it is impossible to conclude that the "procedure" specified in Article 185-1 of the Code of Ukraine on Administrative Offenses is sufficiently clear in order to enable an applicant to foresee, to the extent that it was substantiated by circumstances, the consequences of his/her actions " (paragraph 54).

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

In the opinion of the CPLR experts, a law on the abolition of liability under Article 185-1 of the CUoAO should be adopted.


Political Points for 13–20 May 2019

There are no constitutional grounds for early termination of the powers of the Verkhovna Rada of Ukraine

1. CPLR expert opinion

President Volodymyr Zelensky has no constitutional grounds for early termination of the powers of the Verkhovna Rada of Ukraine of the VIII convocation.

2. Respective authorities counter-point/argument

The newly elected President of Ukraine Volodymyr Zelensky took office on May 20, 2019 after taking an oath, and in his speech he announced the "dissolution" of the current composition of the Parliament. A Decree of the President of Ukraine "On Early Termination of the Powers of the Verkhovna Rada of Ukraine" is expected, which will come into force on the day of its official publication.

Extraordinary elections to the Verkhovna Rada of Ukraine shall be appointed by the President within 60 days from the date of publication of the Decree "On Early Termination of the Powers of the Verkhovna Rada of Ukraine".

3. CPLR assessment of the authorities counter-point

The newly elected President Volodymyr Zelensky, has the right to dissolve the Verkhovna Rada of Ukraine upon the presence of constitutional grounds for early termination of its powers since his entry into office from May 20 until May 27, that is, before this right can no longer be exercised, as during the last 6 months of the term of office of the Parliament it is not possible to terminate its powers earlier.

Obviously, the only probable case for early termination of the powers of the Verkhovna Rada of Ukraine may be the absence of a parliamentary majority and the inability to create a new one within a month term after its termination (Article 90 of the Constitution of Ukraine).

The Chairman of The Verkhovna Rada of Ukraine announced the termination of the parliamentary majority on May 17. Consequently, the Verkhovna Rada of Ukraine has the time until June 16 to form a new parliamentary majority. Therefore, the President will have constitutional grounds to terminate the powers of the Parliament of the VIII convocation only after June 16, and provided that such a majority is not created. However, such a ground for dissolution can not be applied due to restrictions on the right to dissolution 6 months before the expiration of the term of office of the Verkhovna Rada of Ukraine.

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

Constitution of Ukraine, Resolution of the Verkhovna Rada of Ukraine "On the Procedure for Holding a Ceremonial Session of the Verkhovna Rada of Ukraine Devoted to the Oath of Office of the Newly Elected President of Ukraine"

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

We call on the newly elected President of Ukraine, as the guarantor of the observance of the Constitution of Ukraine, to act only within the limits of his constitutional powers and, accordingly, to refrain from terminating the powers of the Verkhovna Rada of Ukraine of the VIII convocation in an unconstitutional manner in the absence of grounds for this.

In case of publication of the relevant Decree, at least 45 MPs should raise the issue of its constitutionality before the Constitutional Court of Ukraine.

 

Another aggravation of the "personnel" crisis in the HQCJ

1. CPLR expert opinion

As reported by the CPLR experts in the political points for April 1 – 8, 2019, various persons by their actions create the grounds for considering the current composition of the High Qualifications Commission of Judges of Ukraine (HQCJ) to be unlawful. The new phase of the "personnel" crisis was caused by the Kyiv District Administrative Court, which on May 15, 2019 applied the measures to enforce the claims by establishing:

  • prohibition for S. Kozyakov to exercise his powers of a HQCJ member. The court also adopted a decision, which established the termination of authority of a HQCJ member from October 25, 2018;
  • obligation on the HQCJ Chairman to immediately adopt a decree on the inclusion of S. Ostapets to the HQCJ in connection with the termination of the powers of the HQCJ member S. Shchotka. The decision has not been found in the Unified State Register of Judicial Decisions.

There are grounds to state that the uncertainty surrounding the legislative regulation of the term of office of the HQCJ members appointed in 2014 is used to destabilize the work of this body, to strengthen its dependence, and possibly, in this way to create the legal basis for the abolition of the results of the competitive selection to the High Anticorruption Court, the second selection to the Supreme Court and the qualification assessment of individual judges, as these procedures were conducted with the participation of the HQCJ members, whose term of office is currently being challenged in court.

2. Respective authorities counter-point/argument

The HQCJ reacted to the said court decisions, stating that "the documents available in the Commission indicate otherwise, that is, it can be assumed that the HQCJ did not agree with the court's conclusions on the expiration of the term of office of S. Kozyakov and S. Shchotka. In this case, the communication contains a reference to the decision of the District Administrative Court of Kyiv dated March 25, 2019 in the case No. 640/2620/19, in which the court found that the term of office of S. Shchotka expires on December 5, 2020, and refused to satisfy the claim requirements for recognition of his termination of powers from December 5, 2018. The notice also refers to the decision of the Administrative Court of Cassation under the Supreme Court of Ukraine dated April 25, 2019 in the case No.9901/66/19, whereby the court confirmed the conclusion about the 6 years’ term of office of S. Kozyakov and S. Shchotka. These decisions have not yet come into effect.

In addition, in the explanations dated March 15, 2019 in the case No. 640/2620/19, the representative of the State Judicial Administration of Ukraine argued that the term of office of S. Shchotka is six years from the date of his appointment. However, a few days earlier, on March 12, 2019, the Chairman of the SJA of Ukraine announced a competitive selection for a position of the Commission member, and on May 6, 2019, appointed S. Ostapets as a HQCJ member and terminated the powers of S. Shchotka. That is, for the purposes of considering a separate court case, the SJA of Ukraine took one position, and subsequently changed it radically.

The massive receipt of administrative claims relating to the term of office of the HQCJ members has been observed since February 2019. In particular, on February 15, 2019, claims were received by the District Administrative Court of Kyiv regarding the recognition of the termination of powers of S. Kozyakov, S. Shchotka and T. Veselska. In April, claims were received on the recognition of the termination of powers in relation to 5 more members of the HQCJ (A. Zaritska, M. Makarchuk, M. Mishyn, Y. Titova, V. Ustymenko). Before that, the issue of the term of authority of individual HQCJ members has not been considered by the court.

That is, currently the District Administrative Court of Kyiv decides on the fate of the HQCJ members and to a large extent, on the legitimacy of its procedures. That is why, the fact that   in April 2019, 30 judges of this court did not appear to pass the exam in the framework of the qualification evaluation procedure, does not seem to be coincidental.

3. CPLR assessment of the authorities counter-point

Decisions in cases No. 640/2620/19 and No.9901/66/19, which are referred to in the communication of the HQCJ, have not yet come into force. At the same time, a decision on taking measures to enforce the claim is executed immediately from the date of its adoption, regardless of the appeal (Part 1 of Article 156 of the Code of Administrative Procedures of Ukraine). That is, since the adoption of the said decision, S. Kozyakov and S. Shchotka can not exercise the powers of the HQCJ.

At the same time, the practice of enforcing claims in the way that the Regional Administrative Court of Kyiv did, in particular regarding the inclusion of a new member to the HQCJ, is non-typical and may also lead to the illegitimacy of the procedures with the participation of this new member if the court subsequently establishes his/her lack of authority. That is, enforcing the claim in this way has a manipulative nature and indicates the politicization of the work of this court.

Application of negative measures in relation to the judges of the District Administrative Court of Kyiv, for example, during a qualification assessment, may be presented by them as a revenge for specific decisions.

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

In accordance with Part 2 of Article 92 of the Law "On the Judicial System and Status of Judges" (in the wording that existed at the time of the appointment of the HQCJ members in 2014 - at the beginning of 2015), the term of authority of a HQCJ member was 6 years.

In accordance with subparagraph 5 of paragraph 5 of Section II of the Final and Transitional Provisions of the Law "On Ensuring the Right to a Fair Trial" dated February 12, 2015, the members of the HQCJ appointed by the Minister of Justice of Ukraine and the Chairman of the SJA of Ukraine, exercise their powers within 4 years from the date of appointment to office.

According to paragraph 26 of the Final and Transitional Provisions of the Law "On the Judicial System and Status of Judges" dated 02.06.2016, the HQCJ members exercise their powers until the expiration of their term of appointment.

Therefore, there is an obvious conflict between the provisions of the laws that define the terms of office of the HQCJ members, appointed in 2014 - at the beginning of 2015.

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

Given the length and the different scenarios for disputes regarding the term of office of the HQCJ members in courts, the mutual dependence of judges and members of the HQCJ, and also due to numerous problems in the work of the HQCJ during the competitive selection to the Supreme Court and within the framework of the qualification assessment, the best way would be to re-launch this body. Consideration should be given to the possibility of reorganizing the HQCJ so that during the period of the reform, more civil society representatives (human rights defenders, journalists, representatives of specialized NGOs) are included in the bodies for the selection and evaluation of judges, than the judges themselves. Participation of representatives of international organizations in the activities of such bodies will increase the transparency and credibility of the process from the perspective of international community (this recommendation was expressed in the Political Points for April 1 – 8, 2019).

As for immediate response, the HQCJ members, whose term of office is the subject of the court consideration, should refrain from participating in the procedures conducted by the Commission. It is expedient to consider the activity of judges of the District Administrative Court of Kyiv within the framework of disciplinary procedures.

 

President of Ukraine appointed two members of the High Council of Justice, bypassing the court injunction

1. CPLR expert opinion

On March 11, 2019, the President of Ukraine signed Decree No.65/2019, which defined the procedure for conducting an open competition for the appointment of members of the High Council of Justice (HCJ) under the quota of the President of Ukraine and the composition of the relevant Selection Commission.

On April 22, 2019, the District Administrative Court of Kyiv satisfied a claim to secure a lawsuit regarding the prohibition to the Commission to submit recommendations to the President on the appointment of any candidates. The court grounded its decision on the fact that failure to take appropriate measures could significantly impede or make it impossible to enforce a court decision, jeopardize the effective protection and restoration of the violated rights and interests of the claimant for which he/she was seeking protection.

However, on May 11, 2019, the President abandoned this injunction by amending his decree of 11.03.2019. On May 13, 2019, the head of state appointed A. V. Vasylenko and M. G. Isakov to the positions of the HCJ members.

2. Respective authorities counter-point/argument

According to the wording of the Decree dated May 11, 2019 on amending the Presidential Decree of March 11, 2019, No. 65, if the commission for any reason can not recommend candidates for appointment, all candidates included in the list of persons subject for a special check, shall be considered as recommended. The President is entitled to appoint any of the candidates recommended in this way as a member of the HCJ.

Thus, the President has got a possibility to appoint members of the HCJ at his quota, formally not violating the injunction.

3. CPLR assessment of the authorities counter-point

In the opinion of the CPLR experts, the appointment of A.V. Vasylenko and M.G. Isakov as the HCJ members is a political appointment aimed at preserving the influence of the former President's Petro Poroshenko team, on the key authority in the system of judiciary governance. This is confirmed by the facts that, in particular, the HCJ members were appointed without a competition, a week before the end of the powers of President Poroshenko, and bypassing the court injunction. At the same time, the very fact of imposing a court injunction aimed at preventing the President from exercising his powers, as well as a number of other dubious resonance judgments of the District Administrative Court of Kyiv during the last month (regarding the nationalization of Privatbank, the termination of the powers of the HQCJ members, etc.) indicate that this the court is a politicized body.

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

According to Art. 131 of the Constitution of Ukraine, the HCJ consists of twenty one members, of which 10 are elected by the Congress of Judges of Ukraine from among current judges or retired judges, 2 are appointed by the President of Ukraine, 2 are elected by the Verkhovna Rada of Ukraine, 2 are elected by the Congress of Advocates of Ukraine, 2 are elected by the All-Ukrainian Conference of Prosecutors, 2 are elected by the Congress of Representatives of Legal Higher Educational Establishments and Scientific Institutions. The Chairman of the Supreme Court is a member of the HCJ based on the position.

The procedure for the appointment of the HCJ members at the quota of the President is determined by the Law "On the High Council of Justice". According to this procedure, for the purpose of appointment by the President of the HCJ member, an announcement about holding of an open competition is posted on the Official Presidential website. Regulations on conducting an open competition for the appointment by the President of the HCJ members are approved by the President of Ukraine.

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

The appointment of newly elected HCJ members in a political way indicates that the key body in the system of judicial governance remains primarily a political instrument. Under such conditions, it is not capable of ensuring the independence of the judicial system. In view of this, it is advisable to amend the Constitution of Ukraine as to the way of forming this body. We believe that, under the current conditions, not less than half of this body should be appointed on the basis of public opinion. The specific method of public participation can be determined taking into account the experience of electing members of the Public Council of Integrity and the Public Council of International Experts. If the constitutional amendments can not be achieved, the law should provide for mandatory verification of the integrity of the candidates for the post of HCJ members. Currently, candidates for the HCJ members are only subject to a special check.

 

Law on Improving the Activities of the State Bureau of Investigations has been approved

1. CPLR expert opinion

On May 17, the Verkhovna Rada of Ukraine adopted in general, and on May 18, the President of Ukraine signed Law No. 5395-d, aimed at increasing the efficiency of the work of the State Bureau of Investigations.

This Law allows the SBI to form its own operational units, in particular on operational and technical activities and personal security.

However, the adopted Law contains a controversial provision: it stipulates special titles for the SBI officials, but there is no defined list of positions that require the assignment of these titles. In other words, the decision making on this issue remains at the discretion of the Director of the SBI and his deputies. It should be reminded that initially the SBI was planned as an exclusively "civil" body.

2. Respective authorities counter-point/argument

The State Bureau of Investigations announced the competitive selection for the relevant posts in the operational units immediately after the Law came into force.

3. CPLR assessment of the authorities counter-point

The decision of the management of the SBI on the immediate launch of the competitive selection of operational staff will quickly improve the efficiency of the body.

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

The Constitution of Ukraine, the Law of Ukraine "On the State Bureau of Investigations"

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

The SBI management should determine that special titles to be assigned only to employees of operational and technical units and personal security units.

 

Political Points for 6–13 May 2019

Chairman of the High Anticorruption Court has been elected and the date of commencement of the Court’s work has been determined

1. CPLR expert opinion

On May 7, during the first Congress of Judges of the High Anticorruption Court (hereinafter – the HACC), the Chairman of the HACC was elected and the date of commencement of its operation was determined. Olena Tanasevych, the judge of the first instance was elected to the position of the Chairman and Yevhen Kruk became her deputy. In addition, on the same day, the Congress of Judges of the HACC ruled that the date of commencement of this court’s operation would be September 5, 2019.

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 paragraphs 4, 6 of Section VI of the Law "On the High Anticorruption Court", the day of the commencement of the HACC’ operation is determined by the decision of this court’s congress, which is published on the web-portal of the judiciary and in the newspaper "Holos Ukrainy".

According to Part 2 of Art. 20 and p.1 Part 2 of Art. 31 of the Law "On the Judicial System and Status of Judges", the Chairman of the HACC and his/her deputies are elected to their positions by the Congress of judges of the HACC (from among its member judges). At the same time, Article 6 of the Law "On the High Anticorruption Court" stipulates that the Chairman of the HACC may have only one deputy.

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

In order to ensure timely and full-scope launch of the HACC in the shortest possible time, the following conditions should be met:

1) the HACC should be provided with additional (or other, but much larger) premises that would accommodate and ensure the proper functioning of the HACC chambers for the administration of justice in the first instance;

2) all buildings and structures, which accommodate judges and staff of the HACC, and are used for the administration of justice, should be repaired;

3) office furniture, computer, multimedia, copying devices and other equipment and machinery necessary for the proper functioning of this court should be purchased;

4) most positions of the HACC apparatus should be filled (currently only 5 out of 180 positions are filled in the HACC apparatus);

5) all permits and certificates necessary for obtaining access to classified materials by the HACC judges and authorizing them to hold secret investigatory actions should be received;

6) operative and efficient document management system should be implemented, which not only ensures the automated distribution of criminal proceedings and the most convenient and operative exchange of documents and information, but also excludes any possibility of information leakage about the activities of the HACC and its decisions;

7) all necessary measures related to the protection of the HACC premises, judges and their homes should be taken.

In addition, the HACC judges are advised to use their annual leave before 5 September (in particular, in order to solve their own domestic issues), which would ensure the effective functioning of the Court in the second half of 2019.