Newsletter: April 2019

Possibility of early termination of powers of the Parliament

During the last week of April, the possibility of early dissolution of the Parliament of the VIII convocation by the new President of Ukraine was actively discussed. In this regard, we consider it necessary to take a closer look at this issue. In accordance with Part 5 of Article 90 of the Constitution of Ukraine, the powers of the Verkhovna Rada of Ukraine can not be terminated earlier by the President of Ukraine in the last six months of the term of office of the Verkhovna Rada of Ukraine. Part 1 of Article 76 of the Constitution of Ukraine stipulates that the constitutional composition of the Verkhovna Rada of Ukraine is four hundred fifty people’s deputies of Ukraine elected on the basis of universal, equal and direct voting right by secret ballot for a term of five years. Thus, the term of office of the Verkhovna Rada of Ukraine is 5 years. The Verkhovna Rada of the VIII convocation gained authority on November 27, 2014, consequently the last day of a possible early termination of parliamentary powers is May 27, 2019.

In accordance with Part 1 of Article 104 of the Constitution of Ukraine, the newly elected President of Ukraine enters into office no later than 30 days after the official announcement of the results of the election, from the moment of taking the oath to the people at the ceremonial session of the Verkhovna Rada of Ukraine.

As regards the terms of such an announcement, in accordance with Part 14 of Article 86 of the Law of Ukraine “On Election of the President of Ukraine”, during the repeated voting, the same terms shall apply as in the first round. That is, according to Part 8 of Art. 83 “the district election commission is obliged to establish the results of voting within the territorial election district not later than on the fifth day after the election day”, and “the protocol on the results of voting within the territorial election district shall be transported to the Central Election Commission immediately after signing”. Further, in accordance with Part 7 of Art. 84, the Central Election Commission “shall, within ten days, but not later than on the third day after the receipt of all protocols of district election commissions on the results of voting”, determine the results of the election of the President of Ukraine, which shall be drawn up by the protocol. Then, “not later than the third day after signing of the protocol on the voting results” (Part 4, Article 86), it officially publishes the election results (Part 6, Article 84). In summary, the district election commission and the Central Election Commission have up to 18 days from the date of the election, that is, until May 9.

We would like to emphasize that the decision on early termination of the powers of the Parliament of the VIII convocation on any grounds, approved after May 27, is unconstitutional.

Constitutional Court refused to defend its independence

On April 18, the Grand Chamber of the Constitutional Court of Ukraine issued a Ruling on the refusal to open constitutional proceedings in a case on the constitutional petition of 47 people’s deputies of Ukraine on the compliance with the Constitution of Ukraine (constitutionality) of the provisions of the second sentence of the first paragraph of part three, second paragraph of part three, part four of Article 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” dated February 10, 2010 No. 1861-VI.

Moreover, the Constitutional Court judge Sergii Holovaty expressed a divergent opinion whereby he disagreed with the decision of the Constitutional Court, and indicated that “refusal of the Court to open proceedings under this constitutional petition has no legal grounds in general”.

It is about unconstitutional changes to Art. 208-4 of the Law “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, which established that “a right to submit a proposal regarding a candidate for a position of a judge of the Constitutional Court of Ukraine may be exercised by a parliamentary faction (deputy group), a group of non-factional MPs in a number not less than the quantitative composition of the smallest deputy group”, that is contrary to Art. 148 of the Constitution, which established a competitive selection of candidates for a position of the CCU judge.

Thus, today in Parliament the selection of candidates for the position of a judge of the Constitutional Court is still valid for political support, which is the question of the dependence of the Constitutional Court and its ability to protect the Constitution, in particular from unconstitutional actions of the Parliament.

Therefore, the politicized selection of candidates for the position of a Constitutional Court judge remains, which is the issue of dependence of the Constitutional Court of Ukraine and its ability to protect the Constitution, in particular from unconstitutional actions of Parliament.

Georgia's Lessons for Ukraine: Constitutional Reform

On April 11, the Ukrainian-Georgian round table “Georgia’s Lessons for Ukraine: Constitutional Reform” was organized in Tbilisi. Ukrainian and Georgian constitutional law experts discussed the practice of amending the constitution, and exchanged experience of functioning of the parliamentary form of governance in Georgia and the parliamentary-presidential form in Ukraine. The CPLR was represented by Ihor Koliushko, Head of the Board, and Julia Kyrychenko, Member of the Board. In their speeches, the experts focused on the current problems of the Constitution of Ukraine and the threats facing it, in particular, the conduct of referenda bypassing Parliament and the Government, and emphasized the importance of moving towards the strengthening of parliamentarism.

According to Levan Alapishvili, representative of the Center for Strategic Studies and Development of Georgia, the constitutional reform in Georgia was held in a closed regime for civil society. In fact, it was a demand of the authorities, which caused a lot of shortcomings, including the wrong procedure for the election of the President, the appearance of a pension fund at the constitutional level, etc. Teona Akubardia and Ivane Aptsiauri also focused on the negative consequences of such an approach to reforming the Constitution.

Powers of the President must comply with the Constitution

Many national laws give the President of Ukraine the powers that are not in line with the Constitution of Ukraine.

Article 106 of the Constitution contains a list of powers of the President and states that he shall exercise other powers specified by the Constitution. That is, the powers of the President can not go beyond the ones defined constitutionally. No law should grant the President the powers that are contrary to the Constitution or supplementary to the constitutionally defined ones.

However, the analysis of legislation shows that this is not the case. The powers of the President, defined in the laws “On the Antimonopoly Committee of Ukraine”, “On the State Property Fund of Ukraine”, “On the State Bureau of Investigations”, “On the National Police”, “On Telecommunications” and other laws do not comply with the Constitution. For example, according to the law, the Head of the Antimonopoly Committee of Ukraine is appointed and dismissed from office by the President with the consent of the Verkhovna Rada of Ukraine. However, according to the Constitution, the Head of the ACU is appointed by the Verkhovna Rada upon submission of the Prime Minister of Ukraine.

This problem is not new for our state. Nevertheless, it has not been considered a priority for a long time, as such that requires urgent resolution. Since the new five-year presidential term begins, the CPLR experts returned to the importance of resolving it and prepared a draft law on amending the laws that contain unconstitutional powers of the President.

We hope that the draft law will be adopted soon, since the Constitution determines that the President is the guarantor of its observance.

Another topic that was actively discussed this month by the media was the removal from office of Maksym Stepanov, Head of Odessa Regional State Administration, based on the Presidential Decree of April 6. According to Art. 154 of the Criminal Procedure Code of Ukraine, removal from office may be applied in relation to a person who is suspected or accused of committing a crime of medium gravity, a grave or particularly grave crime, and regardless of the gravity of the crime, in relation to a person who is an official of the law-enforcement agency. The issue of removal from office of persons appointed by the President shall be resolved by the President on the basis of a prosecutor’s petition in accordance with the procedure established by law.

Since no information was disclosed about opening of a criminal case, which would be the basis for a prosecutor’s petition, the CPLR experts believe that the removal from office of the Head of local state administration by the President was in excess of his powers. Moreover, the CPLR experts are of the opinion that this power of the President, stipulated by the CPC, is also unconstitutional.

The following week, the Head of Odessa Regional State Administration Maksym Stepanov was dismissed upon the submission of the Cabinet of Ministers in compliance with the procedure.

про внесення змін до законів, які містять неконституційні повноваження Президента.

Сподіваємося, що законопроект буде ухвалений найближчим часом, адже Конституція визначає, що Президент є гарантом її додержання.

Також цього місяця у ЗМІ активно обговорювалося відсторонення Указом Президента від 6 квітня голови Одеської обласної державної адміністрації Максима Степанова від виконання обов`язків. Відповідно до ст. 154 Кримінального процесуального кодексу України відсторонення від посади може бути здійснено щодо особи, яка підозрюється або обвинувачується у вчиненні злочину середньої тяжкості, тяжкого чи особливо тяжкого злочину, і незалежно від тяжкості злочину – щодо особи, яка є службовою особою правоохоронного органу. Питання про відсторонення від посади осіб, що призначаються Президентом, вирішується Президентом на підставі клопотання прокурора в порядку, встановленому законодавством.

Оскільки не повідомлялася жодна інформація про порушення кримінальної справи, у межах якої було б клопотання прокурора, на думку експертів ЦППР, відсторонення Президентом голови місцевої державної адміністрації від посади було перевищенням його повноважень. До речі, це закріплене у КПК повноваження Президента експерти ЦППР також вважають неконституційним.

Наступного тижня голова Одеської ОДА Максим Степанов був звільнений за поданням КМУ з дотриманням процедури.

New rules for MIA services: key changes are not yet foreseen

The government is planning changes in the area of issuing driver’s licenses and car registrations, but a number of key changes that are needed to improve the quality of the services of the Ministry of Internal Affairs are not yet foreseen.

On April 5, a news was published on the website of the Main Service Center of the Ministry of Internal Affairs about upcoming innovations in the area of vehicle registration and issuance of a driver’s license, which are planned to be implemented by the Cabinet of Ministers of Ukraine through the adoption of its resolution. It should be noted that since then, the relevant act of the Government has not yet been published in official sources. Nevertheless, the news has become very popular among domestic media. According to it, the following innovations are planned in the aforementioned area: introduction of video recording of the processes of passing exams on traffic rules and driving skills; theoretical and practical examinations can be passed only in one territorial service center of the Ministry of Internal Affairs at the person’s choice; the first driver’s license will be issued for only 2 years; obtaining or exchanging a driver’s license will not be possible without the record of the place of registration in the person’s identification document; driving schools will not be obliged to purchase certificates of graduation at the territorial service centers of the Ministry of Internal Affairs, and other changes. It is worth reminding that, in addition to this resolution, there is a draft law № 9251 registered in the Parliament, which also provides for changes in the area of car registration and issuance of driver’s licenses.

A number of the proposed changes are positive, but some of them are not supported by the CPLR. In particular, it is inappropriate to issue the first driver’s license for only 2 years, since it will be withdrawn from the malicious road traffic offenders. Why should obeying drivers in 2 years’ time again spend time communicating with the authorities and paying for a new certificate?

It is also important to note that none of the draft acts provides for key changes in the area of the MIA service provision. In particular, the draft law does not foresee the transfer of authority for the issuance/exchange of driver’s license and registration/re-registration of cars from the Ministry of Internal Affairs to local self-government, although this is required by the Public Administration Reform Strategy until 2021. No changes are envisaged in respect of the current practice of “double” examinations: first in the driving school, and then in the service center of the Ministry of Internal Affairs, which is inappropriate. Excessive bureaucracy when registering cars will remain as well. Thus, the draft law envisages such procedures as reconciliation, inspection, research of the identification numbers of the car components during its registration. This causes unnecessary bureaucracy and complicates the process of integrating these services into the CPAS, as the Ministry of Internal Affairs requires them to set up observation platforms.

“A number of changes proposed by the Government are positive. However, most of them are cosmetic. We need decentralization of services of the Ministry of Internal Affairs and simplification of the procedures for providing them. This is what the Government and the Parliament need to do”, said Yevhen Shkolnyi, the CPLR expert.

President of Ukraine appointed judges of the High Anticorruption Court in contradiction to the Constitution of Ukraine

On April 11, the President of Ukraine appointed 27 judges of the High Anticorruption Court and 11 judges of the Appeals Chamber of the High Anticorruption Court on the basis of a respective submission from the High Council of Justice. Out of the 38 appointed judges of the High Anticorruption Court, 22 previously worked as judges, 13 were lawyers, and 3 academicians.

At the same time, according to the Constitution, which was updated in 2016, the President appoints judges to their positions, but does not transfer the current judges from one position to another (the President was deprived of this power to transfer judges in October last year). That is, the President is authorized to appoint only scholars and lawyers who have won the competition for the High Anticorruption Court judge. Instead, the High Council of Justice should transfer the winning judges to the positions of judges of the High Anticorruption Court, since they have already the status of a judge and have taken an oath. The second appointment of current judges to the position of a judge contradicts not only the Constitution, but also the thesis of the President Petro Poroshenko that political authorities have been removed from solving issues related to judicial career and influence on the role of a judge.

CPLR experts have studied a "judicial system" in the occupied Donbas

In April, the CPLR experts presented a study on “Judicial System” in selected regions of the East of Ukraine (analytical review of the situation in the temporarily occupied Donbas in 2014–2018)”, in which the “judicial systems” of the self-proclaimed so-called “Donetsk/Luhansk People’s Republics” were analyzed for the first time. The study found that illegal armed groups have created a ramified system of “courts” in the occupied territories, in which “first instance courts” and “courts” that review decisions (so-called “supreme courts”) operate and cases are considered both on the basis of Ukrainian laws and independently adopted acts (which largely copy the Russian procedural laws). About 40% of the “court staff” is composed of former and current Ukrainian judges.

The paper identifies the problems to be faced by the Ukrainian legal system during the de-occupation and reintegration of these territories due to the existence of parallel “judicial systems” therein. The study provided the background for the development of a mechanism for the rapid and effective restoration of justice in the occupied Donbass, which is currently absent.

The study was carried out with the support of the European Union within the framework of the CPLR project “Strengthening the Role of Civil Society in Facilitating Democratic Reforms and Increasing Accountability, Responsibility, and Quality of Government”.

CPLR experts presented a study on qualification assessment

In April 2019, the CPLR experts presented a study on judges’ qualification assessment in 2016-2018 (full and short versions).

As of April 1, 2019, 2,253 current judges, which is about 37% of the total number of judges in Ukraine, have successfully passed different qualification assessment procedures. Of these number, 293 judges passed the primary qualification (5 – after the second try), 1,660 judges passed qualification assessment within the procedure of conformity with their position, 300 judges – during the first and second competitive selections to the Supreme Court, as well as selection to the High Anticorruption Court.

156 judges did not confirm compliance with their positions as a result of the qualification assessment. Of these 5 – within the framework of primary qualification assessment, and 151 – within the qualification assessment for compliance with the position occupied. Among the judges who failed to pass the qualification assessment, one half (76 judges) did not pass the exam, the other half (75 judges) did not get the minimum allowable score at the interview. Thus, 3% of judges did not pass qualification due to insufficient professional level, while another 3% – based on the combination of indicators of professional ethics, integrity and competence. As of April 1, 2019, only 15 judges were dismissed by the High Council of Justice due to the negative results of the qualification assessment, which makes 0.6% of all judges, in respect of which the procedures for qualification assessment have been completed.

In addition, the experts named the key problems of qualification assessment: non-transparent assessment of practical tasks of judges, the absence of any control over the placement of scores during psychological testing, different assessment of the same facts by the same methodology, motivation of decisions only by scores of unclear origin, etc.

The study was prepared with the support of the European Union, the Embassy of the Kingdom of the Netherlands and the United States Agency for International Development.

High Council of Justice has approved a new staffing list of judges

The Judicial Reform Strategy, approved in 2015, envisaged the optimization of the system of courts and the number of judges therein. The number of judges in local and appellate courts in 2016 (as of March) amounted to 8,706 judges, in 2017 (as of September) there were 7,235 judges, in 2018 – 6,985 judges (the decrease was due to the approval of the staffing in newly created appellate courts). According to the State Judicial Administration of Ukraine, as of December 2018, 1,962 positions of judges were vacant.

On April 18, the High Council of Justice approved the temporary number of judges in the district courts and courts of appeal for 2019, which is 6,342 judges, that is, compared to the previous year, the number of judges reduced by more than 600, which simultaneously led to a decrease in the number of vacant positions of judges to be filled by the High Qualifications Commission of Judges of Ukraine and the High Council of Justice. Approval of the number of judges in district courts will allow the transfer of judges from local courts that are under liquidation, to the newly created, consolidated district courts, which in turn will complete the procedure for optimizing the judicial system.

State bodies delegitimize the composition of the High Qualifications Commission of Judges by their actions

Earlier, on February 15, the Congress of Advocates of Ukraine decided on early dismissal of P. Lutsyuk, member of the HQCJ, appointed by the advocate quota, and the appointment of O. Drozdov instead. On February 19, the Rivne District Administrative Court suspended the effect of this decision of the Congress of Advocates of Ukraine until resolution of the dispute, and P. Lutsyuk continues to participate in the meetings of the HQCJ.

The lack of legal certainty regarding the powers of individual HQCJ members, including the Head of the HQCJ, and the status of newly appointed members endangers the legitimacy of the Commission’s procedures. Taking into account that disputes over the legitimacy of the members of the Commission are under way at the height of the election campaign, there are serious threats of political influences on these processes.

The President of Ukraine signed the Law on Criminal Misdemeanors, which was criticized by international experts and the public

On April 19, the President of Ukraine signed the Law “On Amending Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Misdemeanors”.

In 2018, the Council of Europe experts issued a negative conclusion on this document. In particular, it states: “The need for effective response to mass crimes in relation to minor offenses should not tolerate neglecting basic procedural guarantees. Unfortunately, such neglect will be a consequence of the proposed procedure, which will allow the use of procedural steps before any information is submitted to the Unified Register both in circumstances that have led to past abuses and in other cases in respect of which no provision has been made for the application of appropriate safeguards against such abuse; in addition, it will leave unclear restrictions on the length of the investigation and will create the possibility of putting pressure on suspects to forcibly convict themselves and deprive the party of the protection of fundamental rights” (paragraphs 193, 194 of the Conclusion).

“As early as December 2018, the RPR experts wrote a letter to the current President with a detailed justification of the threats that the Law poses and asked him to veto. However, the President did not provide any response. Therefore, before the Law comes into force (January 1, 2020) it would be necessary to bring its provisions in line with the Council of Europe’s conclusion”, said Oleksandr Banchuk, expert of the CPLR.

Formation of the Public Control Council at the SBI has been blocked through the court

On April 12, the District Administrative Court of Kyiv reported to have received a lawsuit against the Cabinet of Ministers of Ukraine regarding unlawfulness of the Resolution of the CMU on the procedure for the formation of the Public Control Council at the State Bureau of Investigations through online voting.

Having opened the proceedings on this statement of claim, the court simultaneously suspended the effect of the appealed Resolution of the Government and prohibited the SBI to conduct a competition to the PCC.

The new procedure for the formation of PCC under the SBI was approved by the Government Resolution dated March 13, 2019, on the basis of proposals from public and international organizations, and taking into account the positive practice of functioning of similar councils in other state bodies, including new anti-corruption institutions.

Formation of the new Public Control Council of at the State Bureau of Investigations was scheduled for April 18. Public organizations, including the CPLR, have nominated 54 candidates to participate in the competition, which was supposed to be conducted through Internet voting this time.

“Based on the provisions of the Law “On the State Bureau of Investigations”, the Government, within the limits of its powers, has the opportunity to determine any form of voting for candidates to the PCC (including online voting). Therefore, the Government and the SBI should use all legal arguments and, within the judicial procedure, prove the lawfulness of the revision and updating of the procedure for the formation of the PCC”, said Volodymyr Petrakovsky, the CPLR expert.

CPLR experts participated in the trainings for judges of the High Anticorruption Court

On April 2-5, the experts of the Centre of Policy and Legal Reform jointly with the involved experts conducted trainings for candidates recommended for the positions of judges of the High Anticorruption Court. The training was conducted by Mykola Khavroniuk, PhD in law, Professor, Member of the Board, Director of Scientific Development of the CPLR, Oleksandr Banchuk, PhD candidate in law, Board Member of the CPLR, Ruslan Shekhavtsov, PhD candidate in law, Oleksandr Dudorov, PhD in law, Professor; Vyacheslav Navrotsky, PhD in law, professor. The event was held with the support of the EU Anticorruption Initiative in Ukraine within the three-week orientation program for newly elected judges. This part of the training covered the areas of criminal law and criminal process, and during the classes, questions related to these aspects and practical examples were considered.

As early as on April 11, the President issued a Decree appointing judges of the High Anticorruption Court. Now, within 30 days from this date, the elderly judge must convene a meeting of judges of the High Anticorruption Court, which should decide on the date of commencement. After that date, the High Anticorruption Court will eventually be able to initiate criminal proceedings against corruption offenses.

The "Corruption Schemes" book was presented to detectives of NABU and investigators of the SBI

On April 16 and 17, detectives of the National Anti-Corruption Bureau of Ukraine and investigators of the State Bureau of Investigations were presented a practical guide “Corruption Schemes: Their Criminal Legal Qualifications and Pre-Trial Investigation”. Eight recognized experts in criminal law and criminal process took part in the preparation of the book, and Mykola Khavroniuk, PhD in law, Professor, Member of the Board, Director of Scientific Development of the CPLR, became the editor of the manual.

Unlike other similar publications, this manual contains specific examples of methods and tactics for investigating corruption and corruption-related offenses. The manual also provides examples of quite real situations that arose during investigations. Representatives of both pre-trial investigation agencies received 100 copies of the book, which should be useful when investigating corruption and corruption-related crimes.

Preparation and publication of the manual have been carried out with the support of the European Union within the framework of the project “Strengthening the Role of Civil Society in Facilitating Democratic Reforms and Increasing Accountability, Responsibility, and Quality of Government”.

How to write a complaint against a prosecutor to the QDCP: a practical workshop held in Kharkiv

On April 12, a seminar “How to write a complaint against a prosecutor” took place in Kharkiv. The CPLR expert Oleksandr Banchuk presented the results of the work of the Qualification Disciplinary Commission of Prosecutors. Serhii Hrynenko, a member of the Secretariat of the QDCP, explained the requirements for the preparation of a disciplinary complaint. General procedure for the consideration of cases by the Commission was presented by Yevhen Krapyvin, the UMPDL expert, and Volodymyr Petrakovsky, the CPLR expert, told about the grounds for bringing the prosecutors to responsibility and their dismissal.

Law students from Dnipro learned about the sociology of law

Regional coordinator of the UPLAN Network, head of the Dnipro Center for Sociological Studies Anna Kolokhina delivered a lecture to students of the Faculty of Law of the Dnipropetrovsk State University of Internal Affairs. Students learned about the characteristics of quantitative and qualitative research methods, focus group, content analysis, in-depth interviews, document analysis.

Anticorruption programs – road maps of Lviv region reforms

What are the anticorruption programs of local authorities, their purpose and features in the Lviv region – this is what Oleksii Rohovyk, the expert of the UPLAN Network, head of the information and analytical center “Vilnyi Holos” (Free Voice), explained in his interview.

“The quality of both national and regional anti-corruption programs leaves much to be desired. In addition, the NACP’s methodological recommendations actually restrict anti-corruption programs in their opportunities to be more advanced, concentrating on risks rather than specific reforms, focusing on the four identified areas of risk, and not on a systematic vision of the necessary changes”, says Oleksii Rohovyk.

Full version of the Interview is available at uplan.org.ua

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Qualification Assessment of Judges in 2016–2018: Intermediate Results

R. Kuibida, M. Sereda, R. Smaliuk, K. Butko, R. Maselko, G. Chyzhyk

The publication analyzes the results of judges’ qualification assessment, that is, the examination of judges in terms of conformity with their position, for 2016–2018. In addition, recommendations were made for such an assessment. The report was prepared with the support of the European Union, the Embassy of the Kingdom of the Netherlands and the United States Agency for International Development.

"Judicial System" in some parts of Eastern Ukraine (analytical review of the situation in the temporarily occupied Donbas in 2014–2018)

R. Smaliuk

The study is devoted to the formation and structure of the “judicial system” in the self-proclaimed so-called “DNR” and “LNR”. In addition, it focuses on problematic issues that may arise during the reintegration of the occupied territories of Donbas. The publication was made with the support of the European Union.