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September

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 24 September  1 October

Political Points for 17  24 September

Political Points for 10  17 September

Political Points for 3 - 10 September

Political Points for 24 September – 1 October

Yuriy Lutsenko alleged that NABU shows no results of its work

1. CPLR expert opinion

On September 23, the Prosecutor General Yuriy Lutsenko in an interview to TSN.Tyzhden said: “It's easy to call someone corruptors, scammers who want evil all over the country, but it's the way to nowhere. This is the road to nowhere, which, unfortunately, is persistently followed by the leadership of NABU”. After that he stated that NABU shows no results of its work. “They do not exist,” added the Prosecutor General.

2. Respective authorities counter-point/argument

As a counter-argument, NABU demonstrates the results of its work in 2016–2018, as well as the conclusions of international experts  which state that NABU is currently the most effective specialized anti-corruption body in Ukraine. In particular, over two and a half years, NABU completed pre-trial investigation under 155 criminal proceedings and sent them to the court, many of which concern most top corrupt officials. As of October 1, 2018, there are still 644 criminal proceedings being investigated by NABU detectives, of which 161 notices of suspicion have already been made.

3. CPLR assessment of the authorities counter-point

Taking into account the problems with which NABU faces almost daily in their activities, the counter-arguments of NABU look more than convincing.

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

None

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

Indeed, the general situation with ensuring the inevitability of criminal responsibility for committing corruption offenses does not look very encouraging. NABU manages to reveal only a small part of corruption-related crimes committed by high-ranking officials. Pre-trial investigation in such proceedings often takes more than a year. Only 21 verdicts of guilty were given in the proceedings completed by NABU, and just a few persons were sentenced to “real” punishment in the form of imprisonment.

At the same time, the absolute majority of these problems is not due to the NABU actions/omissions, but the peculiarities of obtaining certain evidence (for example, often detectives have to apply for international legal assistance), drawbacks in the criminal and criminal procedural law (in particular, the so-called “Lozovyi Amendments”), deliberate delaying and rendering innoxious of cases in the courts, as well as permanent interinstitutional conflicts (NABU – special anti-corruption prosecutor's office (SAP), SAP – General Prosecutor's Office (GP), NABU – GP).

Therefore, in order for the fight against top level corruption to be more effective, the following actions should be taken:

  1. making thorough analysis of the causes of long or poor-quality investigation of individual crimes;
  2. introducing all necessary amendments to the criminal and criminal procedural legislation;
  3. launching the High Anticorruption Court as soon as possible;
  4. establishing effective cooperation between NABU and SAP;
  5. ensuring powerful scientific and expert support to NABU and SAP.

Guarantor of the Constitution of Ukraine: “Onyshchenko is a criminal”

1. CPLR expert opinion

On September 30, the President of Ukraine Petro Poroshenko stated in an interview to GPS program on CNN that Oleksandr Onyshchenko is a criminal. Since at the time of this statement, O. Onyshchenko was not convicted of any crime, by saying this the President of Ukraine violated the provisions of Art. 62 of the Constitution of Ukraine, according to which a person is considered to be innocent in committing a crime, until his/her guilt is proved in a legal manner and established by a conviction of a court.

In addition, during the same show, P. Poroshenko stated that the former employee of the National Agency for Corruption Prevention (NACP) Hanna Solomatina lied about the fact that in 2017, representatives of the Presidential Administration interfered in the work of the NACP. Meanwhile, the truthfulness of the statements made by H. Solomatina is currently being verified within the framework of the appropriate criminal proceedings. Therefore, the final assessment of this information as being true or false can be made exclusively by the court as a result of the consideration of the case. Making such statements by the President of Ukraine is a gross violation of the requirements of the Constitution and the CPC of Ukraine regarding the conduct of pre-trial investigation and justice.

2. Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

None.

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

 Articles 62, 102, 124 of the Constitution of Ukraine, articles17, 30, 38 of the CPC of Ukraine.

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

The President of Ukraine should make a public statement and refute this information as untrue. In turn, O. Onyshchenko and H. Solomatina have the right to apply to the court with a claim against P. Poroshenko to protect his honor and business reputation.

Political Points for 17 – 24 September

Voting of the Verkhovna Rada on parliamentary immunity

1. CPLR expert opinion

On September 20, the Verkhovna Rada by 274 votes approved the Resolution on further elaboration of the Draft law on Amending the Constitution of Ukraine on the Immunity of People's Deputies of Ukraine (No. 7203/П1) as the basis and in general.

In fact, this means that the Verkhovna Rada has suspended the procedure for amending Article 80 of the Constitution of Ukraine as regards the abolition of parliamentary immunity.

As the CPLR has a critically negative attitude towards the abolition of parliamentary immunity, we support this vote of the Verkhovna Rada.

2. Respective authorities counter-point/argument

According to the Resolution, consideration of possible amendments to the draft Law No. 7203 will continue until November 21.

3. CPLR assessment of the authorities counter-point

Abolition of parliamentary immunity may adversely affect the development of parliamentarism and, accordingly, the democracy, in Ukraine. The existence of the deputies’ immunity is conditioned by the need to protect parliamentarians from unjustified pressure by law enforcement authorities, prosecutors and other actors, which may try to prevent parliamentarians from exercising their powers. In fact, this institution provides a balance of the power branches division and constrains possible encroachment of the executive power on the legislative, and is an element of the system of checks and balances. That is why any amendments to Article 80 of the Constitution of Ukraine should be considered through the prism of the purpose of this institution existence.

Both draft laws (No. 6773 and No. 7203) propose complete abolition of the parliamentary immunity. Undoubtedly, there are countries with constitutional democracy where the need for such constitutional provisions (concerning parliamentary immunity) has already exhausted itself, since the practice of implementing the Constitution and common practice ensure a system of checks and balances.

However, as the Venice Commission noted in its Conclusion CDL-AD (2015)013 of June 19, 2015, in the political system of vulnerable democracy, which is Ukraine, the complete abolition of parliamentary immunity may be dangerous for the functioning and autonomy of the parliament. Consequently, these draft laws may disrupt the system of checks and balances of the state power in Ukraine. In addition, concerns of weakening parliamentarism through the abolition of parliamentary immunity are justified, given the general tendency of the Ukrainian president's institution to authoritarianism.

We would like to emphasize that the provisions of Article 80 of the Constitution of Ukraine really require adjustments in terms of restricting of parliamentary immunity, but not its entire abolition. Unduly broad interpretation of the provisions of the Constitution of Ukraine actually creates a caste of untouchable persons and distorts the implicated constitutional idea. In particular, the Constitutional Court has repeatedly emphasized that the immunity of people's deputies is not a personal privilege, an individual right of a people's deputy, but has a public-law nature. This issue is disclosed in more detail in a number of separate opinions of the Constitutional Court judges, in particular Melnyk, Sas, and Slidenko judges.

In view of this, the provisions of Part 3 of Article 80 of the Constitution of Ukraine can be set forth in the following wording: “A people's deputy can not be detained or arrested until the conviction is passed by a court without the consent of the Verkhovna Rada, except for the commission of a grave crime.”

It should be emphasized that there is no unambiguous understanding of the current provisions of the Constitution on parliamentary immunity. The Decision of the Constitutional Court No. 9-рп/99 of October 27, 1999, in which the CCU interpreted the provisions of Art. 80 of the Constitution of Ukraine, states that the consent of the Verkhovna Rada of Ukraine to bring a people's deputy of Ukraine to criminal liability should be obtained before he/she is charged with a crime in accordance with the current Criminal Procedure Code of Ukraine. However, in the current CPC, there is no such category as “charging with a crime”. Therefore, the scope and content of the category of “parliamentary immunity” at present are not clearly defied.

The content and scope of parliamentary immunity can be determined by the Constitutional Court through the interpretation of the text of the Constitution. The Constitutional Court opened constitutional proceedings in a case under the constitutional petition of 59 people's deputies of Ukraine regarding the official interpretation of the provisions of Part 3 of Art. 62, part 1, 3 of Art. 80 of the Constitution of Ukraine. The decision of the CCU in this case will significantly affect the understanding of the scope and content of parliamentary immunity in Ukraine.

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

Section ХІІІ of the Constitution of Ukraine, Chapter 26 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.

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

The Centre for Policy and Legal Reforms believes that complete abolition of the parliamentary immunity in Ukraine is premature. This could became a threat of weakening the parliamentarism and disrupting the balance of power branches in the context of the president's institution tendency towards authoritarianism and a low constitutional culture. Therefore, we welcome the voting of the Parliament, which postponed the consideration of possible amendments to draft Law No. 7203 until November 21st.

The draft law on criminal offenses violates European standards and requirements of the Constitution

1. CPLR expert opinion

The adoption in 2012 of the new Criminal Procedure Code of Ukraine laid the grounds for further changes, in particular the introduction of the institution of criminal offences. This implies the division of violations depending on the level of their gravity, limitations on the application of penalties related to deprivation of liberty, etc.

In order to complete these tasks, the draft Law No 7279-д “On Amending Certain Legislative Acts of Ukraine on the Simplification of Pre-trial Investigation of Certain Categories of Criminal Violations” was elaborated.

2. Respective authorities counter-point/argument

The draft Law No. 7279-д was adopted in the first reading on June 7, 2018. A profile parliamentary committee considered the document at its meeting on September 20 and recommended it for adoption by the parliament in general.

This decision was adopted without taking into account the opinion of the Council of Europe, the experts of which have not yet completed the evaluation of the document and have not prepared their conclusion.

3. CPLR assessment of the authorities counter-point

Introduction of a criminal offense institution is primarily aimed at the creation of an effective system for investigating violations by introducing a differentiated procedure depending on the severity of the crimes and actual lessening of the burden on the pre-trial investigation bodies. While supporting the idea of this draft law, it is worth paying attention to its provisions, which carry serious risks of violation of human rights and freedoms:

1. Extremely short deadlines for initial investigation are established: 72 hours in the case of admission of guilt by a person, 20 days – in the case of non-admission of guilt or the need for additional investigative actions. The proposed deadlines will allow the investigation authorities to apply unlawful methods of influence on individuals.

2. The court is authorized to consider the cases of offences without court hearings, in the absence of participants in hearings. These innovations will lead to violation of the person’s right to defense and abuse by law enforcement and prosecution authorities. Even in the cases of administrative offenses, there is no such procedure for the consideration of cases in the absence of a person who is prosecuted.

3. New types of “evidence” are introduced: person's explanation, medical examination, expert's conclusion, indications of technical devices that can be collected before the formal start of criminal proceedings without providing any guarantees for defense. At the same time, the draft law does not establish a procedure for such actions, which creates a broad field for violation of individual’s rights.

4. Establishment of new grounds for the detention of persons violates the requirements of the Constitution. In particular, the provisions which allow law enforcement authorities to detain a person only on the grounds that he/she is intoxicated, does not comply with the Basic Law.

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

The Constitution of Ukraine, the Criminal Code, the Code of Ukraine on Administrative Offences, the Criminal Procedure Code of Ukraine.

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

The draft Law No. 7279-д in the current wording should be rejected in case of its submission for consideration by the Verkhovna Rada. It needs to be substantially reviewed in terms of amending the CPC in the area of alignment of its provisions with the requirements of the Constitution of Ukraine and European standards.

Kyiv District Administrative Court determined that operational investigative actions of the NABU in the so-called “amber case” were illegal

1. CPLR expert opinion

On September 20, Kyiv District Administrative Court determined that the actions of the National Anti-Corruption Bureau of Ukraine (NABU) and the General Prosecutor's Office of Ukraine (GPU) were illegal, and also ordered these bodies to further adhere to the guarantees of parliamentary immunity of Boryslav Rosenblat.

2. Respective authorities counter-point/argument

According to the court's ruling, the NABU and the GPU in the frames of the so-called “amber case” unreasonably acted on the prosecution of B. Rosenblat outside the relevant criminal proceedings and did not comply with the legislative requirements regarding the need to ensure parliamentary immunity. That is, there was no Parliament's consent to bring B. Rosenblat to criminal responsibility, which, among other things, led to unlawful interference in his personal and family life.

3. CPLR assessment of the authorities counter-point

By considering the claim of B. Rosenblat, Kyiv District Administrative Court went beyond its powers, since all issues/problems of criminal proceedings (in particular, caused by the relationship “state authority – person”) should be decided by an investigating judge or court within the framework of the relevant criminal proceedings.

In addition, in this case, there was no violation of the guarantees of parliamentary immunity of B. Rosenblat, since the latter was not prosecuted, arrested or detained.

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

It follows from the contents of Article 30 of the CPC of Ukraine, Articles 19 and 170 of the Code of Administrative Proceedings of Ukraine, that Kyiv District Administrative Court had to decline the claim of B. Rosenblatt to open proceedings in an administrative case.

According to Article 80 of the Constitution and paragraph 14 of Part 1 of Article 3 of the CPC of Ukraine, the violation of parliamentary immunity is the fact of bringing a deputy to criminal liability, his/her arrest or detention. Such measures were not implemented in the case under consideration.

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

The said decision must be appealed and canceled. Otherwise, this will create a precedent, and its negative impact cannot be overestimated: virtually any action or omission of the investigator or prosecutor in the proceedings open against senior officials will be appealed under administrative legal procedure, which will enable corruptors to paralyze any criminal process.

Political Points for 10 – 17 September

Lack of the language law and inaction of the Parliament

1. CPLR expert opinion

On February 28, the Constitutional Court declared unconstitutional in general the Law “On the Principles of State Language Policy”. This is the so-called “language law” or “law of Kivalov-Kolesnichenko”, adopted by the Verkhovna Rada on July 3, 2012.

Since then, there is no law in Ukraine that comprehensively regulates the functioning of the Ukrainian language as a state language and broadens the provisions of Article 10 of the Constitution of Ukraine at the level of the law. Therefore, the Verkhovna Rada needs to adopt a new profile legislation.

2. Respective authorities counter-point/argument

On September 11, at the forum organized by the Reanimation Paper on Reforms, the Speaker of the Parliament stressed the need to resolve the issue by the Verkhovna Rada. There is no consolidated position of the factions.

3. CPLR assessment of the authorities counter-point

The issue of regulating the state language is extremely important for the Ukrainian society and needs relevant legislation. Currently, four draft laws are registered in the Parliament that have to be considered. It seems that the draft laws No. 5670 and No. 5670-d have the best chances for adoption in the first reading.

The first draft law has been in the Parliament for more than a year. It was signed by about 30 people's deputies from different factions.

The second draft law was elaborated on the basis of the first one and finalized by the Committee on Culture and Spirituality. It was supported by the committee and about 70 people's deputies. The draft law number 5670-d on ensuring the functioning of the Ukrainian language as the national language is aimed at protecting the state status of the Ukrainian language as the language of Ukrainian citizenship and the adoption of the Ukrainian language as the language of interethnic communication and understanding in Ukraine. The draft addresses the problematic provisions of the Kivalov-Kolesnichenko Law, and ensures the use of the Ukrainian language in the public sphere. In our opinion, this very draft law should be supported.

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

 Article 10 of the Constitution of Ukraine, Decision of the Constitutional Court No. 2-r/2018.

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

The Verkhovna Rada should speed up the consideration of language legislation. The draft law No. 5760-d, supported by the committee, should be approved in the first reading, and, in the course of the second reading, all disputable issues should be resolved.

This issue needs to be resolved during this parliamentary session, as the next session will coincide with the official presidential campaign, which will complicate the adoption of language legislation.

First Deputy Head of Security Service of Ukraine Pavlo Demchyna became aware of the prepared notice of suspicion on illicit enrichment for him before the official notification

1. CPLR expert opinion

NABU has been investigating criminal proceeding on possible illicit enrichment of P. Demchyna for almost 1,5 year. On September 13 Demchyna said that he was aware of the prepared notice of suspicion for him.

NABU confirmed the fact of preparation of this notice on the following day and pointed out that prosecutor of SAPO hadn’t adopted the procedural decision on this notice of suspicion yet. Moreover, NABU mentioned that the submission of this notice to SAPO and the information leakage about its preparation had coincided in time.

2. Respective authorities counter-point/argument

According to the SAPO official statement, prosecutors assumed that the notice of suspicion should be refined, so prosecutors refused to adopt the procedural decision on notice of suspicion for Demchyna. Moreover, in order to persuade public of the low quality of this document SAPO had publicized the full text of the notice of suspicion submitted by detectives of NABU, this could be seen as an unprecedented step. SAPO in the official statement denied the information leakage about prepared document from prosecutors.

Demchyna said that detective of NABU, who prepared the notice of suspicion, had committed several crimes, including the prosecution of wittingly innocent person. He submitted the statement on these crimes to the Prosecutor General’s Office, which has already started criminal proceeding.

3. CPLR assessment of the authorities counter-point

According to the provision of the Criminal Procedure Code, detective notify the person of suspicion after the confirmation of prosecutor for this action. The person could be notified of suspicion in case of sufficient evidences collected to suspect the person in criminal offense. Nevertheless, only the prosecutor has the access to all the materials and evidences in any criminal proceeding and has a possibility to assess them at this stage of the process and to make a decision whether these evidences sufficient to suspect the person. The public and experts do not have any access to these materials, so it wouldn’t be objectively to make any conclusion at this stage.

The fact of publication of the text of above-mentioned notice of suspicion would have obviously negative influence of the effectiveness of thus criminal proceeding and its final results. Moreover, this situation could be harmful for the future cooperation between NABU and SAPO.

The statement of Demchyna on the possible commitment of offenses by the detective of NABU could show his desire to avoid in any way the notification of him on the possible illicit enrichment. According to the Criminal Procedure Code, only the investigative judge could decide whether the notice of suspicion is reasonable, justified and based on sufficient evidences to assume that this concrete person has committed a criminal offense.

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

Art. 36, 40, 42, 194, 222, 276-279 of the Criminal Procedure Code of Ukraine; Art. 368-2, 372, 383 387 of the Criminal Code of Ukraine.

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

Detectives of NABU should as soon as possible refine the notice of suspicion for Demchyna and to submit it to SAPO, after that the prosecutor should unbiasedly and objectively consider this notice of suspicion. SAPO should avoid any publication of the notice of suspicion before the actual notification of any suspected person.

The fact of information leakage about the prepared notice of suspicion for Demchyna should be properly investigated in the process of separate criminal proceeding.

Detectives of NABU gave to the Minister of Infrastructure Volodymyr Omelyan the notice of suspicion of illicit enrichment

1. CPLR expert opinion

On September 13, detectives of NABU under the procedural guidance of SAPO prosecutors informed V. Omelyan on the suspicion of him of possible illicit enrichment and false statements in his asset and income declarations.

According to NABU, the minister failed to declare that he used several assets and failed to mention his spendings. Omelyan obtained several assets, the legitimacy of grounds for obtaining which was not confirmed by evidence and the value of which significantly exceeded his legal revenues.

SAPO prosecutor has asked for a bail of UAH 5 mln for Omelyan, but hasn’t ask for his temporary dismissal from the position of the Minister yet.

2. Respective authorities counter-point/argument

According to Omelyan, this notice of suspicion doesn’t have any grounds. The main arguments supporting his position are the NACP conclusions on the full verification of his annual declarations for 2015-2017, where no signs of false statements in declarations or any signs of illicit enrichment had been found.

Nonetheless, neither during the media briefing nor during the court hearing he didn’t mention any reasonable arguments on the existence of any legal income which could be sufficient to obtain these assets or on the lack of grounds to declare assets that had been used by him.

The investigative judge decided that personal guarantees of Ihor Zhdanov (Minister for Youth and Sports) and Fedir Bendiuzhenko (MP) are sufficient and reasonable precautionary measures for the minister.

It should be mentioned that one year ago, in April 2017, Omelyan was one of the guarantors for the former MP Mykola Martynenko, who is accused of commitment of the serious corruption and corruption-related offenses. The indictment on Martynenko has been already submitted to the court.

The investigative judge Hanna Serhienko could be investigated by NABU as well on possible false statements in her declaration. According to the NACP conclusion on verification of her annual declaration, she had failed to declare almost USD 40 000 of income, this conclusion was submitted to NABU. However, Serhienko convinced that this NACP decision could be seen as the pressure on her and interference in her judicial activities. In February 2018 she gave the permission for NABU detectives to conduct several investigative actions in the criminal proceeding on the possible false statement in the annual declaration of NACP member, former Head of this Agency Natalia Korchak.

3. CPLR assessment of the authorities counter-point

According to the provisions of the Criminal Procedure Code, the person could be notified on suspicion in case of sufficient evidences collected to suspect the person in criminal offense. This procedural decision must be confirmed by prosecutors.

Public and experts do not have any access to the evidences collected in this concrete criminal proceeding, so any preliminary conclusions could be done based on the evidences mentioned by SAPO prosecutor during the court hearing only. Among other evidences the prosecutor mentioned data about spending and income of Omelyan, information about the usage of undeclared assets, information from his chats with other people etc.

The Criminal Procedure Code envisaged that during the selection of the precautionary measure investigative judge should take into account different circumstances, including the sufficiency of evidences to presume that this person committed a crime; sanction for appropriate offense; reputation of the suspected person. Investigative judge decided that the notice of suspicion of Omelyan is well-grounded and supported by sufficient evidences, but, nevertheless, she decided to select softer precautionary measure for the minister in comparison with the one asked fro by SAPO prosecutor.

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

Art. 36, 40, 42, 176-178, 180, 194, 276-279 of the Criminal Procedure Code; art. 368-2 of the Criminal Code; art. 65 of the Law of Ukraine on Corruption Prevention.

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

Pre-trial investigation in this criminal proceeding on the possible offenses by Volodymyr Omelyan should be investigated in full consistency with the provisions of the Criminal Procedure Code and during the reasonable time. In case of sufficient evidences would be collected, the pre-trial investigation should be finalized and the indictment should be submitted to the court.

According to the Law on Corruption Prevention, the person who has been notified of suspicion in offense in the sphere of performance of public duties, would be temporarily removed from his/her position. The Criminal Procedure Code determines the procedure for such a temporary dismissal. According to the Criminal Code of Ukraine, the crime of illicit enrichment is classified as a crime in the sphere of performance of public duties, so the minister should be temporary dismissed.

Political Points for 3 – 10 September

The President’s proposals on the constitutional changes

1. CPLR expert opinion

On September 4, the text of the Draft Law amending the Constitution of Ukraine (on the strategic course of the state for acquiring full-fledged membership of Ukraine in the European Union and the North Atlantic Treaty Organization) No. 9037 was published.

The draft law was registered by the President. The explanatory note to the document states that formalization of the “legal certainty of Ukraine's course towards the membership in the EU and NATO will mobilize Ukrainian society and Ukrainian authorities and contribute to reforms aimed at achieving the criteria for full membership in the EU and NATO.”

Unfortunately, the mobilization of society, which was repeatedly emphasized, is complicated by the lack of discussion of constitutional changes with the expert community and broad public discussion. These amendments were not considered by the Constitutional Commission.

2. Respective authorities counter-point/argument

In the opinion of the subject of legislative initiative, the vast majority of the Ukrainian society supports Ukraine's full membership in the EU and NATO, realizing that this is a key guarantee for the creation of a democratic state under the rule of law and ensuring its security.

3. CPLR assessment of the authorities counter-point

While fully supporting the European and North Atlantic vectors of Ukraine's development, we would like to draw attention to the fact that European integration and the introduction of amendments to the Constitution of Ukraine are completely different processes. Once again, we emphasize the need for a broad public discussion of the constitutional changes before their adoption by the Parliament. Such a process is necessary to increase the legitimacy of the Constitution of Ukraine.

We draw special attention to the fact that before the presidential elections in March 2019 the Parliament will not have time to vote for amendments to the Constitution. The constitutional procedure for amending these sections of the Constitution (stipulated in Section XIII of the Constitution of Ukraine) envisages voting by Parliament at two regular sessions (226 and 300 votes of the constitutional composition respectively) and the availability of the conclusion of the Constitutional Court of Ukraine as to the compliance of the draft law with the requirements of Articles 157 and 158 of the Constitution.

It should be noted additionally that the introduction of amendments to Sections IV, V, VI of the Constitution should not be limited to formalization of European or North Atlantic intentions, but should take place within the framework of an integrated constitutional reform of the “power triangle” (Parliament, President, Government).

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

Section ХІІІ of the Constitution of Ukraine.

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

All subjects of the legislative initiative to amend the Constitution of Ukraine should hold discussions on these draft amendments with civil society before their registration.

The procedure for assessment and collection of administrative fees must be regulated by the law

1. CPLR expert opinion

Ukraine does not have a comprehensive legal act that would regulate the issue of paying for administrative services. It is therefore difficult for citizens to navigate in the procedure and amounts of payment, which often leads to the payment of non-obligatory fees.

In some cases, the fee for administrative services is established by laws or acts of a similar level (there are more than a hundred of such acts and they name such payments and determine the way of their calculation in different ways - in non-taxable minima, in minimum wages, in percentages or in absolute values) while in other cases they are fixed at the level of by-laws.

Numerous “paid services”, including those that actually duplicate or create additional fees for administrative services, are determined by a separate group of acts of the Cabinet of Ministers of Ukraine on the approval of the so-called “lists of paid services” (for example, the Resolution of the Cabinet of Ministers of Ukraine dated October 26, 2011 No. 1098). At present, there are over 20 such "lists of paid services", and they approve more than 200 ”paid services”. In general, there are no criteria in the legislation as to the necessity of payment or non-payment for all administrative services. A unified procedure for assessing, establishing and collecting administrative fees is also missing.

Therefore, due to the lack of alignment of the regulatory framework and establishment of norms for the payment for services in numerous legal acts of various levels, fees may be collected from the consumers without proper justification and in unreasonable amounts. Under condition of the absence of a single list of all basic administrative services with the amounts of fees for their provision in a single law, the citizens do not know clearly how much they need to pay for a certain administrative service. This is because the procedure for determining this fee is not transparent enough.

In accordance with the Strategy for Public Administration Reform in Ukraine for 2016-2020, approved by the Cabinet of Ministers on June 24, 2016, it is necessary to regulate the issues of payment for administrative services at the legislative level.

2. Respective authorities counter-point/argument

The CPLR has developed the draft Concept for reforming the system of payment for administrative services and the draft Law of Ukraine “On Administrative Fee”. As the Ministry of Economic Development and Trade of Ukraine (hereinafter referred to as the "MEDT") is responsible for the development of the state policy in the area of rendering administrative services, the CPLR has sent a letter with these documents to the Ministry for consideration. The MEDT reviewed them and sent a response letter to the CPLR. In this letter, the Ministry noted that it does not support the adoption of the draft Concept and the draft Law of Ukraine “On Administrative Fee” for the following reasons:

  • the list of administrative services in the draft law is not exhaustive and does not cover a range of popular services;
  • the condition on whether an administrative service should be paid or free of charge for each service, as well as the amount of payment for its provision, should be determined by a separate law regulating such service;
  • the legislation no longer requires approval of an exhaustive list of all administrative services with the amounts of fees for their provision;
  • in order to determine the cost of administrative services, the Methodology approved by the Government in 2010 can be used;
  • according to the draft law, different amounts of fees to be paid for the provision of the same service will be established by various local self-government bodies;
  • if the Government is going to establish the amounts of fees for administrative services of local self-government bodies, this will be in violation of their constitutional guarantees and legal principles of their activity.

3. CPLR assessment of the authorities counter-point

The CPLR disagrees with the above MEDT arguments for the following reasons:

  • the exhaustion of the list of all administrative services without exception in a single law would not make sense, as a number of such services are only demanded among specific groups of citizens. In addition, new administrative services arise from time to time, therefore our draft does not aim to determine the list of all administrative services;
  • the draft law contains an annex that proposes to determine the list of the most popular (basic) administrative services among citizens and the amounts of administrative fees for their provision in the most widespread areas of public life (according to our expert estimates). This will contribute to increasing convenience and transparency of this area for citizens;
  • the Law of Ukraine “On Administrative Services” does not require determining the amount of fees for their provision in separate laws that regulate them. It contains norms (for example, part 3 of Article 11), pointing to the necessity of the adoption of a single law on administrative fees;
  • the Methodology of determining the cost of paid administrative services is a by-law. The Law of Ukraine "On Administrative Services" requires that this procedure be regulated at the level of the law, which will provide the necessary transparency and stability;
  • the draft law stipulates that the Parliament of Ukraine will establish admissible maximum and minimum limits of the amounts of administrative fees for municipal services. This will prevent local governments from imposing drastically different and unfair payments for their services, but will provide the necessary level of freedom for local self-government. At the same time, the establishment of the upper limiting level of the fee will protect citizens and business from arbitrariness in this area;
  • the CPLR draft does not provide for the authority of the Government to set the amounts of administrative fees for administrative services of local self-government bodies. The text of the draft law does not contradict the Constitution of Ukraine.

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

The Strategy for Public Administration Reform in Ukraine for 2016-2020, approved by the Cabinet of Ministers on June 24, 2016; the Law of Ukraine “On Administrative Services” (Part 1 of Article 5, Part 3 of Article 11).

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

The Government has to approve the Concept for reforming the system of payment for administrative services. Further on, the Verkhovna Rada should adopt the Law of Ukraine “On Administrative Fee”. This is required by current legislation. Without the adoption of these acts, Ukrainians will continue suffering from unfair and/or unlawful payments in the area of providing administrative services. The MEDT should review its opinion and express its readiness to fulfill its responsibilities in this area. In turn, the CPLR is ready for a dialogue and cooperation with the MEDT.

The President introduced the draft law “On Legal Profession and Advocacy Activity”, the provisions of which may impede criminal investigations

1. CPLR expert opinion

Amendments to the Constitution of Ukraine on reforming the justice system of June 2, 2016 consolidated the new principles of advocacy and lawyer's “monopoly” to protect against criminal prosecution and the representation of individuals in the courts. For the implementation of these constitutional provisions, as well as addressing other issues of the legal profession, in particular its excessive centralization, a new draft Law “On Legal Profession and Advocacy Activity” No. 9055 was prepared.

2. Respective authorities counter-point/argument

The draft Law was introduced by the President of Ukraine on September 6 and identified as urgent. According to the initiators, the document was developed in cooperation with experts of the Council of Europe and approved by the Judicial Reform Council. At the same time, the National Association of Advocates of Ukraine and the Council of Advocates of Ukraine made statements about the non-compliance of the draft with international standards and principles of the legal profession, and its development was carried out without their proper participation.

3. CPLR assessment of the authorities counter-point

Particular attention should be paid to the new provisions concerning the rights of a lawyer in the framework of criminal proceedings. Among positive norms is the legislative formalization of the lawyer's right to use any technical means not prohibited by law, as well as the possibility to have unimpeded access to their clients in the premises of courts, prosecutor's offices, and other law enforcement agencies.

At the same time, the draft law contains a number of provisions that jeopardize blocking of criminal investigations.

1. Introduction of the principle of inadmissibility of abuse of procedural rights (Article 22-1 of the CPC). This provision may create additional possibilities for violations of the rights of the defense side. The active defense of the accused may be recognized by the court as an abuse and have negative consequences for the lawyer and his/her client. Any action within the law may be potentially considered by the court as an abuse of procedural rights.

2. Granting to the lawyers of the right to independently interrogate witnesses (Article 224 of the CPC). Active participation of the defense in the interrogation may lead to a significant delay in the investigation. In addition, the provision of this right to defense is not of procedural importance, as the court at the hearing will have to hear all participants in the proceedings again.

3. Providing the defense with the right to initiate a search (Article 234 CCP). The search is an investigative action that restricts the rights and freedoms of an individual in the most severe way. That is why initiation of this activity belongs to the exclusive competence of the investigation authorities and the prosecutor's office. Expansion of the circle of such persons will inevitably lead to an increase in the number of unjustified searches and an even greater restriction of human rights.

4. The assignment of the crimes committed by the lawyers to the SIB jurisdiction (Article 216 of the CPC). These proposals do not take into account the specific competences of the Bureau, which is authorized to investigate crimes committed only by the Government officials, while lawyers are representatives of self-governing profession.

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

The Constitution of Ukraine, the Criminal Procedure Code of Ukraine, the Law of Ukraine “On Legal Profession and Advocacy Activity”.

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

Amendments to the Criminal Procedure Code, proposed by the draft Law No. 9055, need to be reviewed in terms of their compliance with European standards. They must necessarily be changed before the second reading of the draft in Parliament.