Newsletter: July-August 2019

What do the Ukrainians know about referendum?

On the eve of the Independence Day of Ukraine, the Center of Policy and Legal Reform jointly with Ilko Kucheriv “Democratic Initiatives” Foundation, during the press conference “Ukraine Received Its Independence 28 Years Ago. Where Are We Now? Where Are We Going?” presented the results of the nationwide opinion survey of the Ukrainian population held by Ilko Kucheriv “Democratic Initiatives” Foundation in conjunction with Kyiv International Institute of Sociology on August 8-20, 2019.

According to the survey results, for the first time since 2004 half of the citizens responded that developments in Ukraine were unfolding in the right direction, which demonstrates the Ukrainians’ optimism as to the future.

Some questions concerning the all-Ukrainian referendum demonstrated an extremely low level of citizens’ awareness about the legal regulation on the national referendum. For instance, almost 70% of citizens would initiate a referendum on establishing a uniform tax for everyone at 5%, and for oligarchs – at 40%, and they would also introduce death penalty for pedophiles. However, the Constitution of Ukraine contains a direct prohibition of referenda on taxes, budgets, and amnesty. As to the death penalty, there is a respective decision of the Constitutional Court of Ukraine.

Such situation creates an extreme risk, and there is a need for the information campaign aimed at increasing the level of Ukrainian citizens’ awareness about the referendum.

“Referendum is a rather dangerous institution that can be used for good, but in the conditions of unstable transitional democracy – also for legalization of authoritarian decisions of any holder of official powers – the President, the Verkhovna Rada, and others”, the CPLR expert Bohdan Bondarenko warns.

Digitalization from the President

President of Ukraine issued a Decree concerning state registers, means of electronic identification, and introduction of some electronic public services.

On July 29, the President signed Decree № 558/2019, which entrusted the Cabinet of Ministers of Ukraine with performing certain tasks, including:

1) ensuring organization of the audit of functioning of national electronic information resources;

2) taking measures based on the audit results aimed at: unifying fundamental normative principles of functioning of national electronic information resources; ensuring their proper functioning and protection, and regularization of respective data, ensuring relevance, compliance and accuracy of such data and avoiding their excessiveness; using the uniform unique identifier of an individual; activating maintenance of the contents of the Uniform State Demographic Register; ensuring proper electronic interaction of national electronic information resources; creating the uniform register of addresses of the streets and other named entities;

3) ensuring verification and establishing identity between the sets of identification data of individuals processed in the national electronic information resources;

4) taking measures to ensure citizens’ access to reliable, safe, and alternative for the same level of trust modern means of electronic identification based on the principle of technological neutrality;

5) taking measures to create the uniform state web-portal of e-services;

6) ensuring transfer to the electronic format during 2019 of services related to childbirth, registration of the place of residence of a child, registration of an individual as a taxpayer when a passport of the citizen of Ukraine is issued for the first time, and during 2020-2021 – of other priority public services;

7) finalizing the process of launching an electronic mechanism of temporary changing the place of voting without changing the voter’s address, possibilities for introducing e-voting at elections, referenda, and other tasks.

In our opinion, computerization of the sphere of provision of administrative services is an important reform area since it simplifies and facilitates the process of their provision significantly, and it decreases the workload on physical places of provision of administrative services (in the first place – CPAS). However, we have to admit that the majority of provisions of the Decree repeat the tasks that are already provided for in the applicable legislation and/or programmatic decisions of the previous Government. Some of them have been partly implemented. Among other things, for ensuring implementation of the task related to organizing proper electronic interaction of national electronic information resources in Ukraine, since May 22 the system for e-cooperation “Trembita” has been functioning.

There are some doubts as to the correctness of the formulation of the task related to ensuring “citizens’ access to reliable, safe, and alternative for the same level of trust modern means of electronic identification” given that such means of electronic identification as Bank-ID and Mobile-ID have already been launched in Ukraine.

Provisions of the Decree on creating a state uniform web-web portal of e-services cause some surprise because the Uniform State Portal of Administrative Services has already been created in Ukraine. The level of its functionality is really low, and attention should be paid to solving this problem in the first place. The replacement of the category of administrative services with e-services looks like a mistake since the form or rather one of the forms of provision of administrative services has been moved to the first place.

It is also important to draw attention of the new governmental team to the fact that one should not make the computerization area absolute but preserve other activity areas in the sphere of the administrative services reform. Bringing services closer to the citizens will be facilitated not only by their digitalization but also by decentralization. Therefore, the newly elected President and the newly created Government should pay attention to this as well. In particular, they should complete the transfer of powers and authorities related to provision of administrative services from central executive bodies to local self-government bodies as provided for in the government’s Strategy for Public Administration Reform till 2021. For instance, so far there has been no decentralization of such administrative services as official records of civil status, registration of vehicles, and issuance of driver’s licenses. This slows down their introduction in the CPAS transparent integrated offices where citizens would be able to order the whole package of different administrative services just during one visit.

“Digitalization of services is good. But Ukraine is larger in terms of the territory than such advanced countries in this sphere as Estonia and Sweden. That is why this process will not be quick here. Some tasks should not be specified anymore but instead everything should be done to ensure efficient implementation of the existing mechanisms of computerization of services, for instance the Uniform Portal of Administrative Services, functioning of Trembita, and the widest possible implementation of Bank-ID and Mobile-ID. Computerization is not the only way to bring services closer to citizens. Practice has demonstrated that not less important mechanism is their decentralization and introduction of CPAS“, Yevhen Shkolnyi, the CPLR expert, said.

Government obliged CPAS to ensure better conditions for provision of services to citizens

On August 14, the Cabinet of Ministers of Ukraine adopted the Resolution that provides changes in the conditions of provision of services by CPAS.

Resolution № 714 amends some normative documents regulating conditions of work of the CPAS and organization of their premises. As stated on the web-site of the Ministry of Economic Development and Trade of Ukraine, the Resolution adopted by the Government, among other things provides for amending the Standardized Provisions and Rules of Procedure of the CPAS, namely with regard to introducing the norm of mandatory installment of information terminals and other hardware and software facilities for citizens’ self-service. CPAS and territorial units have to be located on the first (ground) or the second floor of a building and have a complete set of means for ensuring access to the premises for low-mobility groups of the population. The governmental resolution regulated the issues related to creation and functioning of a territorial department, a remote work station of the center administrator (including the one created in an amalgamated territorial community) as well as – which is very important – the issue related to involving the headmen in provision of administrative services also for performing the functions of an administrator of a remote work station. Among other things, a decision on creating a territorial department or a remote work station of the center administrator has to be approved by the same agency that created the respective CPAS depending on the needs of the population living in the locality or the community. A remote work station of the administrator can be mobile – in order to ensure the possibility to work with citizens remotely, the administrator should have the complete set of the necessary technical means at his/her disposal.

The Resolution approved by the Government is extremely relevant, especially in the part related to creating all necessary conditions for people with disabilities (namely, not only ramps but also specially equipped sanitary rooms, convenient provision of information also in Braille font, and so on), conditions for payment of administrative fees by requesters – in particular, ATMs and payment terminals should be installed (including POS-terminals, hardware and software complexes for self-service), requirements for activities of a CPAS territorial department, the center administrator working at a remote work station.

“Monitoring of CPAS rather frequently shows that by far not all of them provide all necessary conditions for people with disabilities and for visitors with children. Whereas ramps are installed in the majority of CPAS, specially equipped rooms for personal hygiene are not available in all of them. Similarly, applications for convenient presentation of information are not frequently found. I have seen a special information terminal only once. By far not always, the CPAS have all necessary facilities for convenient payment for services. Especially problematic is the situation with availability of POS-terminals that offer a possibility to pay for the services immediately after they have been ordered. Therefore, I support this governmental resolution,” Yevhen Shkolnyi, the CPLR expert, said.

Judges of one of Kyiv courts tried to block the process of qualification assessment – investigation version

On July 26, the National Anti-Corruption Bureau of Ukraine published records allegedly of a conversation of the court president with judges of the District Administrative Court of Kyiv (Kyiv DAC). One can hear that the court president, P. Vovk, allegedly used the lawyers he knows to initiate cases before the court for terminating powers and authorities of members of the High Qualification Commission of Judges of Ukraine (the HQCJ) and for suspending the process of qualification assessment both in his court, and a court in Odesa. In exchange for favorable decisions, P. Vovk allegedly had Z. Kholodniuk, the Head of the State Judicial Administration of Ukraine (SJA) and L. Denisova, the Verkhovna Rada Commissioner for Human Rights, announce competitions for filling in the positions of the HQCJ members, the winners of which were candidates “loyal” to P. Vovk (М. Sirosh and S. Ostapets).

Based on these facts, on August 2, suspicions were served to P. Vovk and three judges, but they were not removed from administering justice (except for Ye. Ablov who was removed from duty back in April on the grounds of having been brought to disciplinary liability). Journalists were able to find out that members of the High Council of Justice (the HCJ) A. Ovsienko and V. Hovorukha who were speakers during the trial on removal, visited the Office of the President on the eve of the hearing. The HCJ explained that they took part in meetings of experts on discussing judicial reform issues. However, these HCJ members are not members of the Commission on Judiciary Reform, which fact raises doubts as to the declared purpose of their visit.

Inquiry into these and other facts of corruption among judges and bringing them to a logical conclusion is an indicator showing whether the new political force is really striving to overcome corruption or whether it is planning to use courts in its interests.

President approved members of Judiciary Reform Commission

On August 7, the President signed a decree on establishing the Commission on Judiciary Reform as an advisory and consultative body under the President having charged it with the task to facilitate further development of the judicial system by drafting and submitting proposals to the head of state on improving the judicial system. Traditionally, members of the Commission are scholars and representatives of the judicial system.

Members of the commission include three CPLR experts – R. Kuibida, M. Khavroniuk, and O. Banchuk. However, the number of representatives of respective civil society organizations is insignificant, but at the same time, there is good representation of judges and lawyers among the commission members, even though some were involved in corruption schemes in courts.

First draft laws on judiciary reform were tabled at Parliament

On August 29, the new convocation of the Verkhovna Rada of Ukraine started its work. One of the first among the registered draft laws were the President’s bills on reforming the judicial government bodies, prosecution, cancelling lawyers’ monopoly on presenting interests in court, and regulating the beginning of work of the High Anti-Corruption Court regarding the cases that will be transferred to it for consideration. Other draft laws contain amendments to the procedural legislation in the part related to the transfer of cases for consideration to the Grand Chamber of the Supreme Court.

The draft law reforming the bodies of judicial government, among other things, provides for a new approach to forming the High Qualification Commission of Judges (the HQCJ). It will have to be formed within one month by a selection commission appointed by the High Council of Justice (the HCJ) from among the candidates nominated by the Council of Judges and international organizations supporting Ukraine in the fight against corruption. Previously, the HQCJ was formed on the quota basis by the Congress of Judges (8), lawyers (2), scholars (2), the State Judiciary Administration (2), and the Ombudsperson (2). Civil society organizations and experts criticized members of this commission and the HCJ itself for tolerating misconduct, supporting conspiracy of silence, and impunity in the judicial community. Unfortunately, the current membership of the HCJ is not changed by the draft law, and at the same time its influence on the new HQCJ is strengthened. As a result, there is a possibility that the goal of the draft law will not be achieved.

Verkhovna Rada of Ukraine adopts Law on Mandatory Chemical Castration of Individuals Who Committed Sex Crimes against Children

On July 11, the Verkhovna Rada of Ukraine adopted in total the Law on amending some legislative acts of Ukraine on strengthening liability for crimes committed against minors, underage individuals or individuals who have not attained puberty (draft law №6449, initiated by O.V. Liashko et al.). The law provides for amending the Criminal and Criminal Enforcement Codes with regard to introducing punishment in the form of mandatory chemical castration of individuals who committed crimes against sexual freedom of a child. It also provides for creation of a public register of perpetrators of such crimes.

This Law presents a serious threat for human rights. Given the type of punishment and its mandatory nature, this is a violation of the prohibition of tortures that bans using inhuman or humiliating punishment against a person (Article 28 of the Constitution of Ukraine, Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms).

The Law fails to meet the requirements of international standards, and it violates human rights for the following reasons:

•  experience of other countries shows that they introduced voluntary chemical castration of individuals with pedophilia as replacement of the non-served part of the punishment in the form of imprisonment (in part or as whole);
•  the chemical castration procedure is used only for persons with pedophilia (a mental disorder found in only several per cent of individuals sentenced for crimes against sexual freedom of a child);
•  respective punishment should be used only after a conclusion of psychiatric expert analysis (diagnosing pedophilia) and medical expert analysis (allowing chemical castration and confirming absence of contraindications);
•  creation of a public register of such convicted individuals, although it exists in practice, clearly specifies the procedure for accessing it, disclosing information to the third parties, etc. (for instance, access is granted to specified individuals at pedagogical institutions, etc.).

Human rights organizations addressed the President of Ukraine requiring he should exercise his right to veto this Law.

Prosecutor General eliminated Department for Special Investigations

On August 11, the Prosecutor General of Ukraine approved the order on organizational changes in the structure and the staffing schedule of the Prosecutor General’s Office of Ukraine, which, among other things, eliminated the Department of Special Investigations that is still responsible for proceedings in the “Maidan cases”.

This decision of the Prosecutor General was met with criticism from several human rights organizations and activists.

However, it had to be approved minimum one year ago. Pursuant to Paragraph 9 of the Transitional Provisions of the Constitution of Ukraine, the prosecution office continues to perform the pre-trial investigation function until the beginning of work of the agencies, to which the respective functions are transferred. Such powers and authorities were transferred to the State Bureau of Investigations pursuant to the Criminal Procedural Code of Ukraine in 2012. Yet, since the SBI started its work only on November 27, 2018, the aforementioned provisions of the Constitution came in force precisely on this day.

Therefore, the Prosecutor General’s Office has to transfer all criminal proceedings investigated by the prosecution office’s investigators to the State Bureau of Investigations as soon as possible.

Draft law was submitted to Parliament on cardinal cleaning of prosecution office

On August 29, a draft law №1032 was submitted to the Verkhovna Rada of Ukraine on primary measures for reforming the prosecution bodies, which provides for renewal of the prosecution staff through termination of work of the previously specially created Qualification and Disciplinary Commission of Prosecutors and transfer of its powers and authorities to temporary attestation commissions.

The objective of the draft law is justified, and a full-fledged reform of prosecution is expected by the Ukrainian society. At the same time, the suggested mechanism contains several problems:

•  lack of justification of the termination of work of the QDCP. Neither analytical studies nor the mass media provide information about problems with holding the QDCP competitions. Therefore, attempts of the draft law authors to remove the present members of the QDCP from new competitions is not based on any objective grounds because no violation or abuse by the Commission was discovered in the process of holding the competitions;
•  secrecy of formation of temporary attestation commissions and removal of prosecutorial self-government bodies (all-Ukrainian conference of prosecutors) from the process is a violation of the European principles of participation of the professional self-government bodies in activities of prosecutorial agencies provided for in Part 5 Article 7 of the Law on Prosecution. The draft law suggests all these issues should be within the realm of the Prosecutor General of Ukraine;
•  violation of the principles of organization of a prosecution office. At present, the structure and the network of prosecutorial bodies is clearly provided for in the Law and appendices thereto. In the judiciary system, both the network of courts and bodies of lawyers’ self-government are specified in detail by the provisions of respective laws. Instead, this draft law suggests that the respective powers should be vested exclusively in the Prosecutor General;
•  increased period for dismissal of prosecutors, and possibilities for creating artificial delays in this process. According to the current model of disciplinary liability and dismissal of prosecutors, the respective decision of the QDCP can be appealed against at the High Council of Justice or in court (the Administrative Court of Cassation, and further – the Grand Chamber of the Supreme Court). However, the workload of the HCJ results in the situation when complaints are examined for a long time, and the period for bringing a person to liability expires so when the HCJ has examined the case it is actually no longer possible to bring a prosecutor to liability or dismiss him/her. The draft law makes this process even more complicated – now the wave of prosecutors’ cases submitted to the HCJ can grow by 26 times (one QDCP will be replaced by 26 attestation commissions), and the number of court instances will be doubled – a dismissed prosecutor can appeal to a district court, a court of appeal, the Administrative Court of Cassation, and the Grand Chamber of the Supreme Court;
•  loss of considerable budget funds allocated for training candidates for prosecutors. On April 16, regular one-year training began for 345 candidates for prosecutors of local prosecution offices. Selection of prosecutors under the new rules as provided for in the draft law will mean loss of funds that have been already spent on organization of the training, accommodation of candidates, their allowance, payment of salaries to teachers, etc.

It should also be mentioned here that the draft law was not analyzed by European experts. Furthermore, it was not discussed at a meeting of the newly established advisory body under the President of Ukraine – the Commission on Judiciary Reform. Yet, this Commission was established precisely for providing advice to the head of state on improving the judiciary system of Ukraine.

Yurii Lutsenko was dismissed from position of the Prosecutor General of Ukraine with violations of requirements of the law

On August 29, the President of Ukraine issued a Decree on dismissal of Yurii Lutsenko from the position of the Prosecutor General of Ukraine having received the Parliament’s consent to such dismissal.

However, the dismissal procedure violated the requirements of Part 4 Article 42 of the Law on Prosecution, which provides for the need to receive a conclusion of the Qualification and Disciplinary Commission of Prosecutors on performance of professional duties by the Prosecutor General of Ukraine. The QDCP did not provide such conclusion.

The need to receive such conclusion was included in the Law in order to protect the Prosecutor General from politically motivated dismissal or no-confidence vote. This is one of the guarantees ensuring independence of prosecution as a component of the judiciary system from the influence of political authorities.

Draft Anti-Corruption Strategy and draft State Program for its implementation for 2019–2023 were presented

On July 24, during the conference New Anti-Corruption Strategy for Ukraine: What Should It Look Like? experts of the Center of Policy and Legal Reform presented an alternative draft Anti-Corruption Strategy and a draft State Program for its implementation in 2019–2023, and initiated a discussion on further implementation of anti-corruption policy in general.

In the beginning of the event, the need to adopt a new Anti-Corruption Strategy was discussed as well as the prospects for consideration of this document by the newly elected members of the Verkhovna Rada of Ukraine. Opinions on this issue were presented by Deputy Head of the Office of the President of Ukraine Ruslan Riaboshapka, representatives of the would-be parliamentary factions (Anastasia Krasnosilska, Halyna Yanchenko, Oleksandra Ustinova) and other specialists in this sphere (Eka Tkelashvili, Mykola Khavroniuk).

During the second panel discussions, the CPLR experts Anton Marchuk and Dmytro Kalmykov presented basic provisions of the draft documents in question regarding the system of measures aimed at preventing corruption. These issues were discussed by Oksana Velychko, Head of the Oversight Council of the NGO “Together Against Corruption”, Oleksandr Kalitenko, expert of “Transparency International Ukraine”, Gunel Babakishieva, expert of the “Eidos” Center, and Robert Sivers, expert of the USAID_ВзаємоДія! (SACCI) project.

The issues related to ensuring unavoidability of punishment for corruption was a topic of the third discussion panel that was held with participation of member of the Board, Director for Scientific Development of the CPLR, member of the National Council for Anti-Corruption Policy Mykola Khavroniuk, Director of the National Anti-Corruption Bureau of Ukraine Artem Sytnyk, Deputy Head of the Specialized Anti-Corruption Prosecution Office Volodymyr Kryvenko, judges of the High Anti-Corruption Court Vira Mykhailenko and Oleksii Kravchuk, and expert of the EU Anti-Corruption Initiative Serhii Derkach.

The total number of event participants exceeded 150. The presented documents were highly assessed by the expert community, and the event itself was vastly covered by the mass media and social media.

During the conference, several reasonable comments were presented. For several weeks, proposals and comments continued to come to the address of the team of authors, the majority of which were taken into consideration in the process of finalization of these documents.

In early August, draft Anti-Corruption Strategy and draft State Program for its implementation in 2019–2023 were submitted to the Office to the President of Ukraine. Soon, they will become the subject of further discussion and finalization by the National Council on Anti-Corruption Policy under the President of Ukraine.

Basic provisions of the draft law on administrative procedure were studied in Kyiv

On July 17 in Kyiv, a training seminar on Administrative Procedure was held. The event was organized by the Center of Policy and Legal Reform. Participants of the event had a practical discussion of real-life situations that develop between citizens and state authorities or local self-government bodies, and offered an algorithm of actions in line with the genera administrative procedure.

Lawyers and legal professionals in Kyiv learnt about details of preparation of a constitutional complaint

On August 7 in Kyiv, the CPLR experts Yulia Kyrychenko and Bohdan Bondarenko jointly with the UPLAN network delivered the Constitutional Complaint training for lawyers, legal professionals, and civil society activists.

The trainers were talking about the importance of constitutional complaint institutions, who can act as an initiating entity, and in which cases a constitutional complaint can be submitted.

New district division: Modeling methodology discussed in Kyiv

New district division is more and more frequently discussed in Ukraine. On August 9 in Kyiv, a training seminar was held on modeling improvement of the administrative territorial organization at a district level in the regions of Ukraine.

In addition to Zaporizhzhia and Dnipropetrovsk Oblasts, district division designs were developed with support from the Center of Policy and Legal Reform for Lviv, Ternopil, and Ivano-Frankivsk Oblasts. In the remaining nine oblasts of Ukraine round tables, at which experts will present their proposals of the new district (povit) division for discussion, will be held in September-December.

Relevant materials from the UPLAN Network

•  Conscious Choice: Tasks for Civil Society (N. Holovata)
•  Is Decentralization Real for Urban Neighborhoods? Polish Experience (Kh. Tybinka)
•  Who Are They – Majoritarian Candidates in Kharkiv Region (А. Shostak)
•  Agenda for New Parliament: Opinion of the Regions (N. Holovata)
•  Which Services Can Be Ordered in CPAS of Western Ukraine (Kh. Tybinka)
•  Bodies of Self-Organization of Population: Where Resources Can Be Found (А. Krupnyk)
•  Constitutional Compliant as National Means of Legal Protection: Legal Consequences (D.Terletskyi)
•  How the First Regulatory Hub in Ukraine Works and What It Has Achieved (S. Bezushko).

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Report on the results of monitoring of court examination of cases, pre-trial investigation of which was completed by NABU detectives

А. Marchuk, V. Valko

The report presents the results of 1.5-year monitoring of the part of criminal proceedings, pre-trial investigation of which was carried out by the NABU detectives.