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October

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 media@pravo.org.ua.

Political Points for 22–29 October

Political Points for 15–22 October

Political Points for 8–15 October

Political Points for 1–8 October

 

Political Points for 22–29 October

Competition to the High Anticorruption Court began with discrimination

1. CPLR expert opinion

The High Qualifications Commission of Judges adopts discriminatory decisions during the recently initiated competition to the High Anticorruption Court, by allowing the same candidates to participate in the competition and rejecting the others under the same conditions.

Thus, on October 26, 2018, the High Qualifications Commission of Judges did not give a permission to take part in the competition for Larysa Golnyk, a corruption incriminating judge who was brought to disciplinary responsibility for confronting the chairman of the court. At present, the judge appealed the disciplinary penalty, and her case is being considered by the Grand Chamber of the Supreme Court.

Indeed, in accordance with the law, availability of an outstanding penalty makes it impossible to participate in the competition.

At the same time, on October 8, 2018, the Commission allowed a judge Maya Butenko to take part in the competition, despite the fact that she also has an outstanding disciplinary punishment, which was left in force by the High Council of Justice.

2. Respective authorities counter-point/argument

The High Qualifications Commission of Judges has not publicly explained the reasons for such discriminatory practices. There are no justified decisions on non-admission to the competition on the web-site of the Commission.

3. CPLR assessment of the authorities counter-point

The failure of the Commission to publicize well-grounded decisions in the absence of any explanations merely confirms the discriminatory nature of adopted decisions and casts a shadow over its ability to hold the contest impartially and fairly.

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

In accordance with Part 7 of Article 109 of the Law of Ukraine "On the Judiciary System and the Status of Judges", "a judge who has an outstanding disciplinary penalty can not take part in a competition for a post in another court".

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

The High Qualifications Commission of Judges has to either provide well-grounded explanations to the discrepancy in its practice or eliminate the revealed discrimination by reviewing the relevant decisions.

 

Political Points for 15–22 October

Deputies may make the investigation of corruption crimes more complicated due to excessive control over forensic examinations

1. CPLR expert opinion

On September 18, the Verkhovna Rada adopted in the first reading a draft law that could lead to ineffective investigation of corruption and corruption-related crimes due to creating the risks for expert examinations conduct within criminal proceedings. On October 18, the Verkhovna Rada Committee on Legislative Support of Law Enforcement Affairs reviewed this draft law before the second reading and partially took into account the necessary amendments. The CPLR experts prepared a conclusion on this draft law.

2. Respective authorities counter-point/argument

The authors of this draft law believe that its adoption will help restore the proper procedure for conducting forensic examinations, reduce the work burden on judges and speed up pre-trial investigations. The draft law proposes to introduce a state monopoly for conducting forensic examinations; to cancel the possibility of interrogating an expert as a witness by an investigator or prosecutor; to maintain judicial control over conducting some types of expertise, in particular, economic and commodity expertise, which are often appointed in the investigation of corruption crimes; to create a state register, which would contain information on all conducted judicial examinations.

3. CPLR assessment of the authorities counter-point

Creating a state monopoly for conducting forensic examinations significantly increases the burden on state specialized institutions and may adversely affect the timeliness of criminal proceedings, as well as creates opportunities for pressure on experts from these institutions.

Elimination of the possibility to interrogate an expert as a witness at the stage of pre-trial investigation deprives the investigator and the prosecutor of a chance to make preliminary assessment of the credibility of the expert's findings based on personal judgements, and also reduces the possibility of clarifying the expert's position on the conclusions drawn, better understanding of the content of the conclusions. The proposed alternative – written explanations of the expert's conclusion – is not an equivalent substitute and may lead to cases of experts’ manipulation with statements in the conclusion, correction of their previous statements in favor of one of the parties to the criminal proceedings.

Maintenance of judicial control over the conduct of certain types of expertise is also unjustified, since it is unclear what is a significant difference between economic or commodity expertise and, for example, computer and technical expertise, so that it is subject to judicial control. Establishing this control can lead to premature disclosure of the pre-trial investigation information and will negatively affect the completeness and effectiveness of the investigations.

Creating a Unified State Register of Forensic Expertise and Expert Examinations can also lead to the disclosure of information of a pre-trial investigation, as well as creates additional possibilities for pressure on experts to change their conclusions, in particular, through the full or partial change of the positions in the written explanations of the expert's conclusion.

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

Aricle. 2, article 69, part 2 of Article 84, articles 101-102 of the Criminal Procedural Code of Ukraine.

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

Provisions of the draft law create preconditions for the inefficiency of the pre-trial investigation of corruption and corruption-related crimes, therefore, certain provisions of this draft law should be brought in line with international standards and requirements of Art. 2 of the CPC to ensure the fulfilment of the tasks of criminal proceedings.

Proposed rules on the introduction of judicial control over certain categories of expert examinations, which are common in the investigation of corruption and corruption-related crimes; establishment of a Unified State Register of Forensic Expertise and Expert Examinations; introduction of a state monopoly for conducting forensic examinations, should be considered as increasing the risk of pressure on an expert and contrary to the general principles of criminal proceedings, and that is why they should not be adopted.

It is recommended to finalize the draft law before its adoption in the second reading, and if the above comments will be ignored, the draft should be rejected.

 

Political Points for 8–15 October

People’s deputies suggest limiting access to the declarations of the part of law enforcement officers and making their verification ineffective

1. CPLR expert opinion:

On October 1, a group of people’s deputies submitted to the Verkhovna Rada a draft law proposing to establish a special declaration procedure for persons who work in law enforcement agencies and carry out operative and search activities, as well as officers of intelligence and counter-intelligence agencies and units.

2. Respective authorities counter-point/argument:

The authors of the draft law believe that the establishment of such a special declaration procedure and other financial control measures will allow avoiding the disclosure of the place of employment of these persons in the units conducting operative and search, intelligence and counter-intelligence activities.

3. CPLR assessment of the authorities counter-point:

The Law of Ukraine "On the Prevention of Corruption" contains a provision allowing to establish a special procedure for the implementation of financial control measures in relation to persons whose employment constitutes a state secret. This procedure can not be implemented in practice, since the NACP has not yet approved it due to the lack of agreement from intelligence, counterintelligence and law enforcement agencies. Currently, each relevant authority determines independently the procedure of filing and verification of the declarations of these categories of officials.

The proposed provisions also create preconditions for the ineffectiveness of financial control, since the heads of law enforcement, intelligence and counterintelligence agencies upon agreement with the NACP will determine the procedure for its implementation. Only the authorized agents of the Agency will be provided access to the declarations upon the decision of the head of the body where the relevant person is working. The heads of these bodies at their discretion will be able to decline access to relevant information for an unlimited number of reasons. Consequently, these conditions create additional corruption risks and neutralize the efficiency of financial control measures.

Establishing these exceptions for quite a wide range of persons may lead to the fact that other categories of reportable persons will also refer to certain peculiarities of their activities (for example, having access to state secrets) in order to return to the paper form of declaration of assets and property, as well as avoid effective financial control.

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

Articles 45-52-1 of the Law "On the Prevention of Corruption"; paragraph 4 of part 1 of Article 8 "On State Secrets"; a list of information constituting state secrets.

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

 

The draft law should be rejected as containing significant corruption-related factors. Article 52-1 of the Law "On the Prevention of Corruption" allows establishing a special procedure for the implementation of financial control measures for intelligence officers, counterintelligence officers and other persons whose employment constitutes a state secret, which is currently a sufficient measure. The key task is to approve the procedure for carrying out financial control measures of these persons by the National Agency for the Corruption Prevention, in consultation with the relevant authorities.

 

Political Points for 1–8 October

The State Migration Service shows no desire to resolve the problems in the passport area

1. CPLR expert opinion

On July 14, 2016, the Verkhovna Rada of Ukraine adopted the Law "On amendments to certain legislative acts of Ukraine regarding documents certifying the citizenship of Ukraine, identifying a person or his/her special status aimed at liberalization of the European Union visa regime for Ukraine" No. 1474-VIII. The Centre of Policy and Legal Reforms (CPLR) has repeatedly expressed concerns about a number of provisions of this legislative act even before its adoption. The monitoring of its implementation confirmed our projections.

Among the painful problems of the above-mentioned law, the following should be mentioned:

1. Passport fees (both domestic and foreign) are non-transparent. They are represented by several payments, which are determined by the Cabinet of Ministers of Ukraine and by the monopolist - polygraph company "Ukraine". That is, the amount of fee for passport documents is non-transparent and can be changed quickly "manually". In addition, this factor facilitates the collection of illegal payments, as by the State Enterprise (SE) "Document".

2. Information about the place of residence is not applied on the plastic surface of the domestic passport in the form of a card, but only is recorded in a chip (contactless electronic media) when issuing a passport. This requires a separate request for getting a certificate on the registration of the place of residence, since both the authorities and the private sector are not sufficiently supplied with equipment for reading this information from the chip. This certificate is required by banks, public notaries, etc. It has an A4 size, which is uncomfortable. Information on the chip is unchangeable.

3. There is a lack of regulation with respect to the documents required for obtaining domestic and foreign passports. Thus, the Law "On the Uniform State Demographic Registry ..." (UDR) does not provide for the list of documents necessary for obtaining passports, and therefore the practice of setting requirements in the SMS departments, as well as in the Centers for Administrative Services (CAS) is different. Internally displaced persons are suffering from this especially, as they are often required additional documents, although this is not provided by law.

4. A new passport of a citizen of Ukraine (in the form of a card) must contain a digital chip, which makes it significantly more expensive to issue and operate. Special equipment and secure communication channels are required to receive applications for this document, which limits the number of access points to passport services for the rural population. At the same time, such a passport is not used for visa-free travelling to the EU.

5. The SE "Document" ("Passport Service") has been legalized, which illegally charges an additional UAH 400 when issuing passports. This company must either be liquidated or turned into an "accredited subject" (that is, to allow it to withhold, for example, up to 60% of the amount of the passport fee for its own maintenance, but no additional fees should be charged).

Taking into account the existence of the above-mentioned problems, the CPLR prepared a corresponding draft law and sent it to the State Migration Service of Ukraine (SMS).

2. Respective authorities’ counter-point/argument

The SMS sent a reply to the CPLR on the receipt of the draft law. The letter stated that the SMS would consider it during the legislative process. However, at the personal meetings with Viktor Tymoshchuk, the Deputy Head of the Board of the CPLR, the Head of the SMS Maksym Sokoliuk said that he does not support the proposed amendments to the passport legislation.

3. CPLR assessment of the authorities counter-point

The CPLR always draws the attention of the MIA and the SMS to passport problems. This takes place during conversations with the SMS officials, as well as by highlighting problematic issues in the media and at press conferences. No significant arguments against the amendments to the passport legislation proposed by the CPLR, were provided in writing by the SMS.

In verbal communications, the SMS puts forward the following arguments:

1) it is more convenient to establish a passport fee by the acts of the Government, because it is easier to change its amount, if necessary. Nevertheless, this is the essence of our proposal: changes in the amounts of administrative fees should also be transparent to society. There is an option to link them to a minimum wage or subsistence minimum, as is already the case with some groups of administrative services;

2) information about the place of residence should not be recorded on the domestic passport, as it will be necessary to change it when changing the place of residence. In particular, we brought to the SMS the example of Germany, where an appropriate "sticker" is applied on the ID-card when the address is changed;

3) it is indicated that they cannot clearly determine the list of documents. This is not true, because for typical situations of passport issuance, it is not difficult to determine the lists. This is partly done in various bylaws;

4) regarding the possibility of issuing passports with or without a chip, the SMS really has a sound argument about the security of the document itself. However, we would like to remind that these passports are not used for traveling to the EU and they have sufficient number of protection levels for internal purposes, even without a chip;

5) as regards the collection of additional fees by the State Enterprise "Document", the SMS expresses the opinion that this is not a fee for a passport. This is manipulation, because citizens address the SE for obtaining passports and pay money exactly when ordering a passport. Citizens do not need just paid consultations (without a passport).

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

  • The Law of Ukraine "On the Unified State Demographic Registry and Documents Certifying the Citizenship of Ukraine, Identifying a Person or His/Her Special Status" dated 20.11.2012 No. 5492-VI;
  • The Law of Ukraine "On Amending Certain Legislative Acts of Ukraine regarding Documents Certifying the Citizenship of Ukraine, Identifying a Person or His/Her Special Status aimed at the Iiberalization of the European Union visa regime for Ukraine" dated 14.07.2016, No. 1474-VIII.

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

The CPLR has elaborated a draft law proposing the solution of the aforementioned problems in the passport area. The SMS could either take it as a basis and promote it through the Cabinet of Ministers until the Parliament's approval, or prepare its own draft law with similar or other effective solutions to such problems.

 

NABU initiated a pre-trial investigation into possible illegal enrichment of Serhii Semochko, First Deputy Head of the Foreign Intelligence Service

1. CPLR expert opinion

On October 2, journalists of "Nashi Groshi" TV show disclosed the results of an investigation concerning the recently appointed Deputy Head of the Foreign Intelligence Service Serhii Semochko, who was holding various managerial positions in the Security Service of Ukraine for a long time prior to this appointment. As revealed by journalists, Semochko and his family members own real estate worth more than UAH 200 million, an expensive car, and they use a helicopter. Semochko himself was allegedly involved in the pressure on the pharmaceutical business, which supplied Ukraine with drugs necessary for people with renal insufficiency. In addition, investigative journalists found out that family members of the First Deputy Head of the Foreign Intelligence Service hold Russian citizenship.

2. Respective authorities counter-point/argument

On October 4, Artem Sytnyk, Director of the National Anti-Corruption Bureau of Ukraine informed that detectives launched a pre-trial investigation into possible illegal enrichment of Serhii Semochko.

The official reaction of the President of Ukraine, who issued a Decree of July 31, 2018, on his appointment to the high-level position in the Foreign Intelligence Service, is still missing.

3. CPLR assessment of the authorities counter-point

Detectives of the National Anti-Corruption Bureau in accordance with the provisions of Art. 214 of the CPC are required to submit information to the Unified Register of Pre-trial Investigations and to initiate an investigation, in particular, upon independent discovery of any circumstances that may indicate a criminal offense. The mentioned journalist investigation contains information that may indicate to the commission of criminal corruption offenses by Semochko. The preliminary qualification in this criminal proceeding is illegal enrichment (Article 368-2 of the Criminal Code of Ukraine).

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

Articles 214, 216 of the CPC.

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

The National Anti-Corruption Bureau of Ukraine, under the procedural guideline of the SAP prosecutors, should conduct an objective and effective pre-trial investigation in compliance with the provisions of the Criminal Procedure Code, during which all the circumstances mentioned in the journalist investigation should be studied, from the possible involvement of Semochko in the pressure on business, which may contain indications of the abuse of office aimed at obtaining unlawful benefit, to his illegal enrichment. In the case of sufficient evidence, Semochko must be notified of suspicion following by his removal from office.

In addition, it is advisable to consider initiating verifications of the citizenship of other states for persons and their family members during special examinations before appointment to a post, which involves taking a responsible or particularly responsible position. The legislator should also consider introducing legal liability for persons who will be found holding citizenship of the aggressor state.

 

NABU detectives began investigating possible declaration of incorrect information by Justice Minister Pavlo Petrenko

1. CPLR expert opinion

In June of this year, journalists of the TV show "Nashi Groshi"  found two expensive apartments in Kyiv and a car in the ownership of the niece of Justice Minister Pavlo Petrenko, who did not have enough income and cash assets to acquire this property. Lawyers from a public organization sent this information to the National Anti-Corruption Bureau.

2. Respective authorities counter-point/argument

NABU detectives refused to enter information into the Unified Register of Pre-Trial Investigations and did not initiate investigation of these circumstances. Lawyers of a public organization appealed to the investigating judge, who issued a decree obliging them to enter relevant information to the URPTI and start a pre-trial investigation in this criminal proceeding. NABU complied with the decision of the investigating judge and started investigating circumstances that may indicate to the declaration of incorrect information by Minister Petrenko or his illegal enrichment.

3. CPLR assessment of the authorities counter-point

NABU detectives did not comply with the prescription of Article 214 of the CPC, which obliges the investigator, the prosecutor to enter information to the URPTI promptly after filing an application, notification of a criminal offense committed, or following an independent disclosure of any circumstances that may indicate to a criminal offense. In accordance with Articles 303-307 of the CPC, the investigating judge examined the complaint regarding the actions of the detectives and ordered them to enter information to the URPTI and to initiate a pre-trial investigation.

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

Articles 214, 216, 303-307 of the CPC.

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

The National Anti-Corruption Bureau under the procedural guideline of the SAP prosecutors must conduct an objective and effective pre-trial investigation, observing the provisions of the Criminal Procedure Code, during which all the circumstances mentioned in the journalist investigation should be studied.

 

Premature reorganization of appellate courts leads to serious problems

1. CPLR expert opinion

Reorganization of appellate courts has led to serious problems: in many courts, the administration of justice has temporarily stopped; most cases in the appellate instance will need to be heard from the beginning; not all judges of the liquidated courts have received positions in new courts without any explanation for such selectivity; at the same time, most of the presidents of liquidated courts headed the new courts.

Simultaneous transfer of judges has led to the suspension of the administration of justice by a large number of appellate courts. Participants in court proceedings were not informed in advance about such suspension, as well as about the impact of judicial reorganization on the consideration of their cases in general.

Moreover, the newly established appellate courts will be obliged to start consideration of all cases (except for some criminal cases) from the very beginning, which will necessarily lead to delays of procedural terms.

The President did not transfer a certain part of the judges of appellate courts to new courts. The CPLR experts associate this with the need to ensure the appointment of "loyal" presidents in new courts. In most of the new appellate courts, the presidents have been elected from the number of recent presidents of liquidated courts.

Moreover, the process of transferring judges may be questioned, as it does not meet the requirements of the Constitution of Ukraine on the formation of new institutions on the competitive basis.

2. Respective authorities counter-point/argument

On December 29, 2017, the President of Ukraine issued decrees on the liquidation of 27 appellate courts, 9 administrative courts of appeal and 8 economic courts of appeal. Instead, the following courts have been established: 26 appellate courts (instead of two separate appellate courts in the city of Kyiv and Kyiv region, the creation of a single Kyiv Court of Appeal is provided), 8 administrative courts of appeal and 7 economic courts of appeal.

In August-September 2018, the High Council of Justice submitted to the President of Ukraine an application on the transfer of 882 judges to the newly established appellate courts. However, the President transferred only 731 judges (about 83%). The reasons why the rest of the judges were not transferred are unknown.

3. CPLR assessment of the authorities counter-point

The authorities do not comment on the process of reorganization. There is no certainty in the procedures as they happen. Citizens, including the participants in the proceedings, do not receive enough information. It seems that the reorganization is poorly worked out both at the legislative level and in the process of implementation. The lessons of the reorganization of appellate courts should be learned in order to avoid similar problems again during the subsequent reorganization of local courts.

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

Subparagraph 5 of paragraph 16-1 of Section XV of the Constitution of Ukraine provides that in the case of liquidation of certain courts, judges of such courts have the right to apply for resignation or to apply for participation in a competition for another position of a judge in accordance with the procedure established by the law. Specific conditions of the transfer of a judge to a position in another court may be determined by the law. However, part 3 of Article 82 of the Law of Ukraine "On Judicial System and Status of Judges" stipulates that the transfer of a judge to another court may be carried out without a competition in case of liquidation of a court.

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

The High Council of Justice and the High Qualifications Commission of Judges of Ukraine:

  • should ensure compliance with the requirements of the Constitution of Ukraine when transferring the judges, in particular, carry out such transfer only on the basis of the results of the competition. The judges can be transferred without a competition only to those courts where the vacancies remain.

The High Council of Justice and the State Judicial Administration of Ukraine:

  • should make the process of reorganization and liquidation of courts transparent, in particular  ensure that the consumers of court services are properly informed about the impact of these procedures on their cases.

The Verkhovna Rada of Ukraine:

  • should amend the procedural codes in order to enable the transferred judges to continue consideration of the cases that were under their responsibility without having to start the proceedings from the very beginning (implementation of the principle "the case follows a judge", this principle is currently implemented only in criminal proceedings);
  • should amend the Law of Ukraine "On the Judicial System and the Status of Judges" in order to make it impossible to practice the continuous long-term holding by the same persons of the positions of the court presidents.

Political Points for 1–8 October