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

Political Points for 21 - 29 May

Political Points for 14 - 21 May

Political Points for 30 April - 7 May

Political Points for 21 - 29 May 

Non-publication of acts on the termination of the ATO creates uncertainty about the possibility of applying many laws

1. CPLR expert opinion

Introduction of “measures for ensuring national security and defense, repression and deterrence of armed aggression of the Russian Federation in the Donetsk and Luhansk oblasts” on April 30, 2018 by a number of acts of the President of Ukraine with limited access, caused legal uncertainty as to the effect of many provisions of the legislation (on judicial system, criminal responsibility, taxes, social security, etc.) that are applied during the anti-terrorist operation (ATO). It is not clear whether the ATO has been officially terminated and whether these provisions can still be applied.

In particular, during the ATO, the courts informed litigation participants residing in the ATO area of the court hearings and court decisions through announcements on the official judicial web portal. They are still doing this. However, if the ATO is terminated, then there may be disputes as to the appropriateness of informing the litigation participants of its results, the adopted court decisions may be canceled.

The CPLR is of the opinion that the by-laws, the publication of which is related to the effectiveness of laws, should be made public.

2. Respective authorities counter-point/argument

On April 30, 2018, the President of Ukraine issued a Decree “On Approval of the Decision of the National Security and Defense Council “On a Large-scale Anti-terrorist Operation on the Territory of Donetsk and Luhansk Oblasts”. This decision of the National Security and Defense Council has not been made public as a document for official use. According to the notification on the site of the President of Ukraine, it is about changing the format of a large-scale anti-terrorist operation, which commenced in 2014. It is indicated that the President also signed the Order of the Supreme Commander-in-Chief of the Armed Forces of Ukraine “On the Commencement of the Operation of the Joint Forces for the National Security and Defense, Repression and Deterrence of Armed Aggression of the Russian Federation in the Territory of Donetsk and Luhansk Oblasts”, according to which starting from 14.00 April 30, 2018, an operation was launched to ensure national security and defense, repression and deterrence of Russian armed aggression in Donetsk and Luhansk oblasts. And although the President of Ukraine stated that the ATO was over, no legal document that would be made public confirmed this statement.

Experts of the CPLR sent a number of requests for obtaining access to public information asking to provide texts of the relevant acts on the termination of the ATO, but received a number of different replies without real answers (reply of the Presidential Administration 1, Annex and 2,  reply of the National Security and Defense Council, reply of the Ministry of Defense, replies of the Security Service 1 and 2).

Only the response of the Security Service can lead to the conclusion that on the basis of the Presidential Decree “On Approval of the Decision of the National Security and Defense Council “On a Large-scale Anti-terrorist Operation in the Territory of Donetsk and Luhansk Oblasts”, by the decision of the First Deputy Head of the Anti-Terrorist Center under the Security Service of April 30, 2018, No. 33-1/4129 the ATO was terminated. The text itself was not provided.

At the same time, the responses of the Presidential Administration and the Ministry of Defense are focused on the fact that the ATO can be conducted simultaneously with the operation of the Joint Forces.

3. CPLR assessment of the authorities counter-point

Refusal to publish by-laws on the termination of the ATO, the content of which is related to the effectiveness of laws, will lead to controversial situations, increase the burden on the judicial system, lead to delays in the consideration of cases due to the possible cancellation of court decisions.

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

According to Article 57 of the Constitution of Ukraine, everyone is guaranteed the right to know his/her rights and obligations; laws and other normative legal acts defining the rights and obligations of citizens must be brought to the knowledge of the population in accordance with the procedure established by law. Laws and other normative legal acts defining the rights and obligations of citizens that are not brought to the knowledge of the population in accordance with the procedure established by law, are deemed to be ineffective.

The Law of Ukraine “On Temporary Measures for the Period of Anti-Terrorist Operation” dated September 2, 2014 defines the period of the anti-terrorist operation as the time between the date of entry into force of the Decree of the President of Ukraine “On the Decision of the National Security and Defense Council of Ukraine of April 13, 2014 “On Urgent Measures concerning Overcoming the Terrorist Threat and Maintaining the Territorial Integrity of Ukraine” dated April 14, 2014, No. № 405/2014, and the date of entry into force of the Presidential Decree on the completion of the anti-terrorist operation or military actions on the territory of Ukraine.

According to the Security Service's response, the Decree of the President of Ukraine on the completion of the anti-terrorist operation is the Decree of the President “On Approval of the Decision of the National Security and Defense Council "On a Large-Scale Anti-terrorist Operation in the Territory of Donetsk and Luhansk Oblasts” of April 30, 2018. However, this is not evident from the published part of the text of the Decree.

In the course of the ATO period, numerous provisions were introduced into the legislation to be applied during the ATO. In particular, many provisions of procedural laws, Tax and Customs Codes, social security laws, etc. relate to the conduct of the ATO. The formal replacement of the ATO with the Joint Forces operation would have to terminate these provisions, while the need to preserve their validity may remain.

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

The following actions are needed to solve this problem:

  • publication of acts relating to the continuation or termination of the ATO in connection with the commencement of operations for the maintenance of national security and defense, repression and deterrence of armed aggression of the Russian Federation in the territory of Donetsk and Lugansk oblasts;
  • in case of termination of the ATO, through amendments to the laws, prolongation of the validity of the provisions, the application of which is also relevant in the event of the replacement of the ATO with the operation of the Joint Forces.

Political Points for 14 - 21 May 

Political forces and financial clans want to have an influence on the selection of judges of the Anticorruption Court. It is important to prevent it 

1. CPLR expert opinion

On May 21, 2018, the Speaker of the Verkhovna Rada Andriy Parubiy stated that the law on the Anticorruption Court is a key law for the current plenary week (its adoption in general is likely). The Speaker also informed that the draft law was agreed with the IMF and the Venice Commission. The discussions continue only with respect to the authority of the Public Council of International Experts.

It should be reminded that the draft law "On the Supreme Anticorruption Court", initiated by the President of Ukraine provides that the selection of candidates for the Anticorruption Court would be carried out by the current composition of the High Qualifications Commission of Judges (HQCJ), and the Public Council of International Experts would only be able to issue recommendations as regards the unfairness of individual candidates (the Public Council of Integrity played the similar role while forming the new Supreme Court, and most of its conclusions were rejected).

During the selection of the Supreme Court judges, which was conducted by the HQCJ, the key issues were: manipulations by its members, which brought the victory for far not the best candidates, as well as the impossibility of verifying the fairness of the result.

The Public Council of International Experts being isolated from the process of determining the selection results can be used to "cover" the competition results, on which the political and oligarchic elites want to have influence through active members of the HQCJ.

In addition, according to the presidential draft law, the role of the cassation instance in cases of high-level corruption is assigned to the acting composition of the Supreme Court. This may lead to the fact that the Supreme Anticorruption Court, even fairly established, may prove to be ineffective, as the Supreme Court's judges under the control of the political authorities will be able to cancel the decision of the Supreme Anticorruption Court following their instructions.

2. Respective authorities counter-point/argument

An analysis of the text of the draft law and proposals of representatives of key political forces in the parliament demonstrates that in the Public Council of International Experts internationalists are supposed to take a role of international experts, who will provide advisory negative conclusions about the candidates.

Moreover, there are proposals to provide for the possibility of appealing against the decisions of this Council in court (it should be reminded that the political authorities have instruments of influence on judges).

Only some proposals of people's deputies are aimed at including international experts directly into the composition of the HQCJ, so that they were involved in all stages of the competition and prevented the possibility of manipulative determination of its results.

3. CPLR assessment of the authorities counter-point

According to the CPLR, in case of isolation of international experts from the procedure of selecting the best candidates, the international community will have no opportunity to control the fairness of the determination of the competition winners.

Even giving internationalists the right to veto individual candidates will not ensure the fairness of selection in the context of non-transparent determination of the competition results by the current composition of the HQCJ, which compromised itself during the competition procedure to the Supreme Court.

Secondly, the HQCJ will remain uncontrolled and will be able to place candidates in the ranking under the influence of political and oligarchic elites.

Thirdly, the model proposed by the President and the Speaker of the Verkhovna Rada of Ukraine (a separate international body isolated from the selection process of the competition winners) is not in line with the recommendations of the Venice Commission:

“Additional safeguards should be introduced to ensure that the decision-making body in the appointment procedure of judges is sufficiently independent of the executive and legislative powers. This could be achieved, for example, by giving a non-political agency such as the High Qualifications Commission of Judges (HQC) the right to nominate members to that body, in addition to the members proposed by international donors. Another option would be not to create an additional body such as the proposed Competition Commission but, as a temporary measure pending completion of the judicial evaluation, to include experts proposed by international donors as supernumerary members of the HQC to participate in the selection procedure for judges in the anti-corruption courts and to give them a crucial role in that procedure. The procedure for involving international organisations and donors in the selection procedure needs to be regulated more in detail so as to provide for a high degree of transparency and compliance with the Constitution”.

Secondly, it is more difficult for international experts to assess the past of the candidates in order to deselect the worst candidates than to evaluate their capabilities and identify the best candidates.

In addition, the Venice Commission proposed: “special rules for anti-corruption courts and judges (including their appointment and status) which deviate from the general LJSJ provisions should be limited to what is necessary for them to work effectively”.

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

In order to solve the main problem that emerged during the competition to the Supreme Court, in the opinion of the CPLR, internationalists should be involved in the selection of the best, rather than the deselection of the worst. If the HQCJ will be entrusted to conduct selection, then internationalists should be included in this very structure in order to minimize the room for manipulation, and hence the possibility of forming a pocket anticorruption court. Therefore, we support the proposals of the people's deputies to create a special panel for the selection of judges of anti-corruption courts as part of the HQCJ (consisting of three members of the HQCJ and four international experts).

At the same time, it is necessary to preserve the stages of selection determined by the current legislation and participation of the Public Council of Integrity, which can ensure the negative selection of candidates (deselection based on the integrity criterion).

In addition, it is necessary to create a separate autonomous anticorruption chamber in the Supreme Court, and its judges should be selected according to the same procedures as the judges of the Supreme Anticorruption Court.

The draft law on improving the activities of the SBI was adopted at the first reading

1. CPLR expert opinion

The Draft Law on Amendments to Certain Legislative Acts of Ukraine on Improving the Activities of the State Bureau of Investigations (Reg. No. № 5395-d) was adopted at the first reading on May 17, 2018. This Law will allow quicker start of the SBI's work and will solve a number of issues regarding the authority of the Bureau.

2. Respective authorities counter-point/argument

The main provisions of Draft Law 5395-d are:

  • introduction of the position of a detective, which will allow to announce competitions for positions in all operational departments of the Bureau;
  • providing separate SBI divisions with authorities to conduct operational and investigative activities. At present, only internal security and personal security divisions are delegated with this authority, and the Bureau can not carry out operational activities in the frames of the pre-trial investigation;
  • transfer from the External to the Internal Competition Commission of the authority to select employees of the central office of the Bureau.

3. CPLR assessment of the authorities counter-point

The draft law proposes to transfer territorial departments from Mykolaiv to Odessa and from Poltava to Kharkiv, which has a corruption risk and may jeopardize the objective consideration of Bureau cases in the courts. The model of the layout of the territorial units, as foreseen by the current law, intentionally establishes the jurisdiction of cases involving high-ranking officials from cities with millions of inhabitants to courts in smaller cities of the country.

The draft law proposes a recruitment of internal control officers without the participation of External Competition Commission. Instead, the current law guarantees the selection of all internal security personnel with the utmost care, independently and in a transparent manner, since they will be responsible for the integrity within the Bureau.

The draft law proposes to establish strict requirements for candidates for the positions of a director of the territorial office of the Bureau (10 years of experience) and a head of the division in the central office (7 years of experience). Such requirements will not allow involving young legal professionals in the Bureau’s work, and will provide benefits to "old" personnel from the law enforcement agencies.

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

The draft law 5395-d may be supported in general only upon elimination of these shortcomings before its second reading in the Parliament. 

The public calls on the President, People's Deputies and the Ombudsman to make a constitutional submission regarding the unconstitutionality of e-declaration for activists

1. CPLR expert opinion

On April 3, 2018, the Verkhovna Rada of Ukraine repeatedly tried to correct the mistake and cancel unconstitutional electronic declaration for public activists. Voting was defeated by people's deputies, despite the international community's call for the abolition of these discriminatory rules for the public, as well as the negative conclusions of the Venice Commission.

In order to protect the right of Ukrainian citizens to an active civic position against discriminatory norms that are not in compliance with the Basic Law, the Center for Policy and Legal Reforms and the Reanimation Package of Reforms prepared an open constitutional petition for the recognition of the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” dated October 14, 2014, No. 1700-VII and paragraph 2 of Section II “Final Provisions” of the Law of Ukraine “On Amendments to some Laws of Ukraine on the Peculiarities of Financial Control of Certain Categories of Officials” dated March 23, 2017, as such that do not comply with the Constitution of Ukraine.

2. Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

Application of anticorruption prohibitions, restrictions and duties in respect to individuals is contrary to the constitutional right to freedom of association, the principle of equality and the prohibition of restrictions on the basis of the type of activity, non-interference in private life. In addition, imposition on an indefinite number of individuals of anticorruption restrictions and obligations that are imposed on persons exercising state functions is contrary to the principle of the rule of law in terms of violation of legal certainty and also contradicts the constitutional right to freedom of association, the principle of equality and the prohibition of restrictions on the basis of the type of activity, non-interference in private life.

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

Articles 150, 152 of the Constitution of Ukraine. 

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

The persons having the right to a constitutional petition - the President of Ukraine as a guarantor of observance of the Constitution of Ukraine, people's deputies and the Ombudsman of the Verkhovna Rada of Ukraine, should support the petition prepared by the public and urgently submit it to the Constitutional Court of Ukraine with a request to:

  • recognize the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine "On Prevention of Corruption" dated October 14, 2014, No. 1700-VII, as non-corresponding to the Constitution of Ukraine (unconstitutional), as they do not comply with the provisions of part one of Article 8, part one of Article 21, part two of Article 24, part one of Article 32, part four and part five of Article 36, part one of Article 64 of the Constitution of Ukraine;
  • recognize the provisions of paragraph 2 of Section II "Final Provisions" of the Law of Ukraine "On Amendments to some Laws of Ukraine on the Peculiarities of Financial Control of Certain Categories of Officials" dated March 23, 2017, as non-corresponding to the Constitution of Ukraine (unconstitutional) as related with unconstitutional provisions of paragraph 5 of part one of Article 3, paragraph three of part three of Article 45 of the Law of Ukraine "On Prevention of Corruption" dated October 14, 2014, No. 1700-VII.

The Constitutional Court of Ukraine should open proceedings under the constitutional petition and recognize the above provisions as non-corresponding to the Constitution of Ukraine.

Political Points for 30 April - 7 May 

The law on the inevitability of responsibility for corruption crimes does not work even in the most notorious cases

1. CPLR expert opinion

Serhii Bochkovsky, after three years from the date of his detention, could already serve part of his sentence, however he has not even been convicted, but instead reinstated by the court in his position as the head of the State Emergency Service.

2. Respective authorities counter-point/argument

On March 25, 2015, Serhii Bochkovsky, the Head of the State Emergency Service, was arrested at a government meeting during the live broadcast. He was charged with abuse of office, which consisted in organizing a corruption scheme for tender procurement of fuel and lubricants at overstated prices, service forgery and obtaining unlawful benefits. Meanwhile, on April 26, 2018 the District Administrative Court of Kyiv declared illegal and cancelled Bochkovsky's dismissal from the position of the head of the State Emergency Service, and collected from the SES the average salary in his favor for a period of a forced unemployment. According to the court decision, Bochkovsky could not be dismissed for the violation of the Oath of a civil servant, since he did not take such an oath. However, the Minister of Internal Affairs Arsen Avakov believes that Bochkovsky has no moral or ethical right to hold the post of the SES’ Head, and therefore he was not allowed to work.

3. CPLR assessment of the authorities counter-point

Instead of thinking about morality, steps needed to be taken to remove Bochkovsky from office or dismiss him on the grounds of the law. 

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

Articles 154-158 of the Criminal Procedural Code of Ukraine, Articles 36, 40, 41 of the Labor Code of Ukraine.

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

The Cabinet of Ministers of Ukraine must comply with the decision of the District Administrative Court of Kyiv of April 26, 2018. But this does not prevent it from applying different, correct grounds for dismissal. While this issue will be under consideration, the prosecutor's office in the meantime may apply to the court that is considering the relevant criminal case with a petition to remove him from office.

On April 26, the Government submitted to the Parliament the low-quality draft  Аnticorruption Strategy for 2018-2020

1. CPLR expert opinion

At the end of September 2017, the NACP approved the draft law "On the Anticorruption Strategy for 2018-2020". The NACP did not hold any public or expert discussions on this document. The expert environment learned about the existence of a working group for the development of this highly important document as late as at the presentation of this project.

According to CPLR’s experts, such anticorruption strategy was unable to provide significant progress in the implementation of anticorruption reform in Ukraine. Therefore, on October 13, 2017, the Center of Policy and Legal Reforms prepared and sent to the NACP a detailed expert Opinion containing many comments and proposals for systematic improvement of this document. As a result of an in-depth analysis of the document, experts of the EU Anticorruption Initiative in Ukraine (EUACI), United Nations Development Program (UNDP) and the project "Support to Leading Organizations in Combating Corruption in Ukraine" “Vzaemodia!” (SACCI) prepared and submitted (on October, 25) to the NACP a Joint Expert Opinion on the Draft Anticorruption Strategy of Ukraine for 2018-2020.

Unfortunately, the NACP took into account only a few (the least crucial) of these comments and sent a draft of this low-quality document for approval by the Government. In the Government, this draft law "was stored" for more than six months (it was no finalized, neither sent to the Parliament). Only on April 25, 2018 the Cabinet approved the document actually in the initial (law-quality) version, and on the next day registered it in the Parliament under number 8324.

2. Respective authorities counter-point/argument

Since the NACP has taken into account only a few (minor) remarks of the expert environment, it seems to consider this document as qualitative. The Government's position on this document is unclear. On the one hand, the Government representatives have repeatedly (mostly unofficially) expressed their position on the unacceptability of the adoption of the Anticorruption Strategy in this version (that is why it was not submitted to the Parliament for so long). On the other hand, on April 25, 2018, the CMU approved this document actually in the initial (low-quality) version. 

3. CPLR assessment of the authorities counter-point

Neither the NACP nor the Government provided any arguments regarding their position. In general, the NACP and the Government have demonstrated not only an absolute inability, but also a fundamental reluctance to form a high-quality anticorruption policy of the state. 

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

Paragraph 2, part 1 of Article 11, Article 18 of the Law of Ukraine “On Preventing Corruption”. 

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

The draft Law "On the Anticorruption Strategy for 2018-2020" should be substantially reviewed within the framework of parliamentary procedures prescribed by the legislation.