Weekly analysis for 03 – 09 April

Second selection to the High Anti-Corruption Court: problems and expectations

Events

On September 26, 2023, the High Council of Justice ordered to increase the number of judges of the High Anti-Corruption Court (HACC) to 63 positions (compared to 39), including 21 positions of judges of the Appeals Chamber (compared to 12). 

On November 23, 2023, the High Qualification Commission of Judges of Ukraine (hereinafter the HQCJ) announced a competition for 15 vacant positions of the HACC judges and 10 vacancies in the Appeals Chamber. The submission of documents by candidates for the positions of judges lasted until March 2024. It should be noted that on March 15, 2024, the HQCJ extended the deadline for application, given the fact that only 56 lawyers submitted the required documents in the first two weeks of March. Following the extended deadline, a total of 238 candidates expressed intention to participate in the competition.

Furthermore, at the end of March 2024, international organizations (European Union, European Anti-Fraud Office, and Organization for Economic Cooperation and Development) submitted a list of candidates for the Public Council of International Experts (hereinafter – PCIE) to the HQCJ.

CPLR’s assessment

1. The launch of the second selection of the HACC judges is a positive sign in light of Ukraine’s implementation of the recommendations contained in the European Commission’s Report on Ukraine’s progress towards European Integration (of November 8, 2023), the Plan for Ukraine Facility 2024-2027 (approved by the Government of Ukraine on March 18, 2024), and the State Anti-Corruption Program for 2023-2025. These documents provide for both strengthening the legal status and the role of the HACC in combating corruption and “enhance[ing] capacity to cope with the increased workload without delay and improv[ing] the track record of the HACC in adjudication of high-level corruption cases”.

According to the CPLR experts, achieving these objectives will contribute to Ukraine’s full integration into the EU legal space, as well as to increasing the level of citizens’ and international partners’ trust in the judiciary. At the same time, the risks of holding the second competition to the HACC involve both the short timeframe of this competition and the high current workload of the HQCJ, as well as the level of compliance of applying candidates with the high requirements for professional and moral qualities of potential judges.

2. According to part 1 of Article 9 of the Law of Ukraine “On the High Anti-Corruption Court”, the PCIE is formed by the HQCJ as its subsidiary body for a six-year period, in order to assist in preparing decisions for the appointment of HACC judges. The term of office of the PCIE members is 2 years. The decision to establish the first composition of the PCIE was adopted by the HQCJ on November 6, 2018, which means that the term of office of the PCIE formally expires on November 6, 2024.

In the event that at least three PCIE members have concerns about a candidate’s compliance with the integrity criteria or the knowledge and practical skills for hearing cases within the HACC jurisdiction, the PCIE may initiate a special joint meeting with the HQCJ. Such a candidate will be able to continue participating in the competition only if the decision on his or her compliance is approved by the majority of the joint HQCJ and PCIE members, with at least half of the PCIE members supporting such a decision. Such a meeting must be held no later than 30 days following the announcement of the exam results. Thus, the second selection of the HACC judges jointly with PCIE members to be appointed by the HQCJ, for the most part, should be completed by November 6, 2024.

The new competition for positions of the HACC judges requires updating the assessment base for the qualification exam for judicial candidates and the standards for assessing their personal moral and psychological qualities. Given the enormous workload of the HQCJ, which is currently completing the qualification assessment of the judges of general courts and simultaneously conducting several large-scale competition procedures, timely conduct of the competition to the HACC poses a serious challenge for the HQCJ members.

3. The success of the competition for positions of the HACC judges and the HQCJ’s capacity to fill all open vacancies also depends on the level of professional competence and integrity of the candidates who applied for these positions. The fact that there are 10 candidates per vacancy in the first instance of the HACC and more than 8 candidates per vacancy in the Appeals Chamber creates adequate competitive level and provides the HQCJ with good opportunities to select the best lawyers. It should be noted that this ratio between the number of persons who applied to participate in the competition and the number of vacant positions is even slightly higher (in particular, for the first instance) than it was during the first competition to the HACC.

However, the success of filling all vacant positions depends on the “effectiveness” of individual stages of the competition. For example, during the first competition to the HACC, 20% of candidates were rejected during the initial admission process.

The stage of assessment of candidates for the HACC judges regarding the criteria of integrity (i.e., morality, fairness, incorruptibility) is equally crucial, since the first PCIE has established high standards for future judges to comply with these criteria to fully meet the HACC’s tasks in the judicial system. Thus, 39 out of 113 candidates who were admitted to this stage in the first competition to the HACC were disqualified from participation through special joint meetings of the HQCJ and the PCIE.

Additionally, it should be noted that 11 active HACC judges (as first instance judges) have applied to participate in the competition to the Appeals Chamber. Their victory in the competition will lead to the emergence of new vacancies in the HACC and may temporarily negatively affect the work of the HACC as a court of first instance. 

Mobilization of convicted persons: six questions to the law-makers

Event

In March-April, four draft laws providing for early release from serving a sentence in lieu of contract military service during martial law were registered in the Verkhovna Rada:

– № 11079 of March 13, 2024 (17 MPs, including O. Shuliak, O. Bondarenko, O. Ustenko);

– № 11079-1 of March 28, 2024 (42 MPs, including O. Shuliak, S. Ionushas, O. Bondarenko, O. Ustenko);

– № 11079-2 of March 28, 2024 (11 MPs, including D. Razumkov); 

– № 11079-3 of April 01, 2024 (2 MPs – О. Ustinova and S. Shvets). 

CPLR’s assessment

Given the number and features of the legislative initiative entities, draft law № 11079-1 has the greatest chance of being supported.

The explanatory note to the draft law states, in particular, that “one of the resources that can be used to strengthen the state’s defense capability involves persons serving a sentence of restriction of liberty or imprisonment. Among these people, there are motivated and patriotic citizens who are ready to redeem themselves before society on the battlefield”.

Draft law № 11079-1 provides for four conditions for parole for military service under contract during mobilization or martial law. According to these, a convicted person:

1) is serving a sentence of restriction of liberty or imprisonment;

2) has expressed willingness to perform military service under contract

3) meets the requirements for military service, namely: he/she has at least three years left before reaching the age limit for military service (according to Article 22 of the Law “On military duty and military service”, such a limit is between the ages of 45 and 55, depending on the category of contract soldier, private, and non-commissioned officer); is medically fit for military service; has passed the professional and psychological selection; and has a sufficient level of physical training to perform military service duties; and

4) has not been convicted of crimes against national security of Ukraine, intentional murder of two or more persons or murder combined with rape or sexual violence, crimes against sexual freedom or sexual inviolability, terrorist crimes, or a violation of traffic safety or transport operation rules committed while intoxicated, which resulted in the death of several persons.

As of July 1, 2023, there were 27,215 convicted persons in penitentiary institutions, including: 

1,546 persons in maximum security facilities;

11,100 persons in medium security facilities for repeat offenders;

8,240 persons in medium security facilities for first-time offenders;

686 persons in minimum security facilities with general detention conditions for men;

602 persons in minimum security facilities with lighter detention conditions;

1,145 persons in minimum security facilities with general detention conditions for women;

762 persons in medical institutions at pre-trial detention centers and correctional colonies; and

1,005 persons in correctional centers.

In addition, nearly 800 people are serving sentences in the form of restriction of liberty.

Thus, excluding minors, women, sick persons, persons sentenced to life imprisonment, and those convicted of crimes that preclude the possibility of parole on the above grounds, there are approximately 20,000 convicted persons.

Among them, in theory, half (10,000) meet the requirements for military service, notably in terms of age and health, out of which not more than 5-10% will express willingness for military service – in total, this will add up to 500-1,000 people.

The first question arising from this analysis is, how many of these people are true patriots and, at the same time, specialists whose knowledge and skills are crucial for the Armed Forces? And why is there no provision for the possibility of early release of persons who hold officer’s ranks and have not been deprived of them by a court verdict (according to the Law “On military duty and military service”, contracts can only be signed with those in the ranks of private or sergeant), despite the fact that these persons may be the most motivated and prepared to participate in combat operations?

The second question involves several at once. Why does the draft law № 11079 not:

–prohibit the release on parole of persons who have committed other types of crimes, including particularly grave ones (such as intentional murder with extreme cruelty, murder of a minor child, murder for hire, an attempt on the life of a law enforcement officer, banditism, etc.)?

–prohibit the release of persons repeatedly convicted of grave and especially grave crimes?

–preclude the release of convicted persons on parole if victims that have not yet been compensated for their harm are against it?

–establish a minimum term that a convicted person must serve before being released on parole?

As provided by the draft law, a person convicted of, for example, repeated robberies, intentional murder, causing grave bodily harm, etc., may be released on parole within a month after the guilty verdict comes into force. Isn’t this reminiscent of the creation of russia’s Prigozhin detachments?

The third question. Draft law № 11079-1 provides that, except for those medically unfit for military service or cases of commission of a new criminal offense by a person on parole, he or she is released from military service only in connection with the expiration of a special period or announcement of a decision on mobilization. Given the fact that the war can last indefinitely, there is a question as to why neither the term of imprisonment or restriction of liberty that the convicted person has remaining to serve, nor the age limit for military service are taken into account. Obviously, such an approach will seriously reduce the number of instances of convicted persons willing to perform military service under contract.

Accordingly, the fourth question is, why does the draft law not provide for incentives to encourage individuals to behave in the desired manner? For example, it does not provide that one day of contract military service under martial law is counted for 2 (or 3, or 5) days of imprisonment. Thus, the completion of the sentence should also be the basis for the termination of the contract.

The fifth question follows from the provisions of draft law № 11079-1, according to which persons released on parole from serving their sentences shall serve in the military exclusively in relevant specialized units of military units (specialized military units). Thus, neither the ranks and former positions of convicted persons nor their military specialty will be taken into account during enrollment in these units – they all will be stormtroopers. Is it really an attempt to create an analogue of the penalty battalions known since World War II?

Finally, draft law № 11079 was registered in the Verkhovna Rada on March 13, 2024. Two days earlier, on March 11, the State Duma supplemented its Criminal Code with Article 80-2 “Exemption from punishment in connection with military service during mobilization, martial law, or wartime”, according to which a person serving a sentence for a crime (except for persons who have committed certain, mainly political, crimes) and who has entered into contract is released on parole, with subsequent control over his or her conduct exercised by the command of a military unit. Therefore, the sixth question is, why should we copy-paste the laws and practices of the aggressor state?

Extension of the powers of the President of Ukraine until the assumption of office by the newly elected President in the first post-war elections

Event

On May 20, 2019, President of Ukraine Volodymyr Zelenskyy took the oath of office as the Head of the State. According to Article 103 of the Constitution of Ukraine, the President is elected for a five-year term.

Thus, in peacetime, in accordance with part five of Article 103 of the Constitution of Ukraine, the next regular presidential election was supposed to be held on March 31, 2024. 

According to the part one of Article 104 of the Constitution of Ukraine, the newly-elected President of Ukraine is supposed to assume office and, accordingly, begin to perform his duties no later than in thirty days after the official announcement of the election results and after taking the oath. In case of re-election of President Volodymyr Zelenskyy, his powers are extended until the assumption of office by a newly elected President following one electoral period. 

However, martial law has been in effect in Ukraine since February 24, 2022, resulting in inability to hold regular presidential elections within the constitutional deadline.

CPLR’s assessment

Since the second half of the ХХ century, no European state has faced military and humanitarian challenges similar to those of Ukraine’s. Moreover, there are almost no examples in the global practice of constitutional and legal regulation of the activity of public authorities under extraordinary regimes – especially when the enemy constantly spreads disinformation regarding the illegitimacy of elected authorities in Ukraine.

According to part one of Article 108 of the Constitution of Ukraine, the President of Ukraine exercise his powers until the assumption of office by the newly elected President of Ukraine.

It is impossible to hold democratic presidential elections in accordance with constitutionally defined principles of electoral law during martial law. Furthermore, Article 19 of the Law of Ukraine “On the legal regime of martial law” directly prohibits holding presidential elections during martial law

In the current Ukrainian realities, in the event the next presidential election falls during martial law in accordance with the constitutional terms, such election is postponed and will be held after martial law is repealed.

The above statements have also been consolidated and confirmed in the constitutional practice of foreign countries.

Thus, the analysis of both domestic and foreign constitutional and electoral legislation shows that martial law is incompatible with the observance of constitutional principles of electoral law and, therefore, with the holding of any democratic elections. In the event of martial law, the powers of the current President of Ukraine are extended until the assumption of office by the newly elected President of Ukraine in the first post-war elections (after the martial law is repealed). Essentially, the President of Ukraine is required to exercise all of his powers, except for the constitutional powers related to elections and referenda (i.e., early termination of the powers of the Parliament, calling for early parliamentary elections, or designating and proclaiming an all-Ukrainian referendum).

For more details follow the analysis “President. The War. Legitimacy”