Newsletter: June 2019

Sociology: Ukrainians’ attitude toward the Constitution

On June 26, the results of a study conducted by the Razumkov Center’s sociological service jointly with the Democratic Initiatives Foundation during June 13-20, 2019 in all regions of Ukraine (except Crimea and occupied territories of Donetsk and Luhansk regions) were released.

Survey results indicate that 56.2% of respondents have not read the Constitution of Ukraine or read about it in the media. According to these data, 34.3% of respondents believe that, according to the Constitution, the President is the bearer of sovereignty and the only source of power in Ukraine. Compared to 2015, this percentage increased, since according to the previous survey, only 28.7% of respondents gave such answer.

In the opinion of 59.2% of respondents, the main reason for violations of the Constitution is the neglect of legislation and the law by the officials. Unfortunately, 18.5% of respondents believe that a government body may violate the Constitution if it facilitates faster decisions that will benefit the society. Since 2015, this percentage has almost doubled. At the same time, 23.2% of respondents completely or mostly trust the Constitutional Court, which is higher compared to previous surveys.

In our opinion, it is a positive fact that 37.2% of respondents support the idea that the constitutional amendments should be developed by an independent body that includes representatives of various branches of government and independent experts.

The Council of Judges announced the launch of the selection of CCU judges

The Council of Judges of Ukraine issued a Decision No. 28 of June 21, 2019, which announced the launch of competition for the selection of candidates for judicial position on the Constitutional Court of Ukraine and the start of acceptance of documents from those who have expressed their intend to obtain positions of the Constitutional Court judges, which will take place during June 24, 2019 through July 23, 2019.

We urge all those who meet the requirements to participate in the selection, and call upon the Congress of Judges and the Council of Judges to carry out a genuine selection of candidates for the Constitutional Court judges, especially with regards to the requirements of high moral qualities and recognized level of competence.

What should be the status of the National Commission Charged with State Regulation in the Areas of Energy and Public utilities?

On June 13, the Constitutional Court of Ukraine declared unconstitutional certain provisions of the Law of Ukraine “On the National Commission Charged with State Regulation in the Areas of Energy and Public Utilities” (Law No.1540). The effective date of the unconstitutionality of certain provisions of this Law has been postponed until December 31 of this year, since their automatic unconstitutionality will result in the gaps in legislation regulating the organization of the Commission’s work and therefore requires that legislation in this area be brought into compliance with the Constitution of Ukraine. Therefore, the legislator needs to determine the Commission’s legal status in a new way.

The CCU, in particular, found that the creation of a permanently functioning, independent state collegial body that, according to its functional designation, sphere of activity, and authority, has the elements of a central executive branch body but is not subordinated to the Cabinet of Ministers of Ukraine and is not part of the system of executive branch bodies is not consistent with the Constitution of Ukraine.

Powers of the Head of State and Parliament regarding the formation of a selection board, as well as the right of the President of Ukraine to appoint members of the Commission and to terminate their powers before expiry, are not provided for by the Constitution.  These powers, stipulated by the Law No. 1540, go beyond the constitutional competence of the Parliament and the Head of State. The Verkhovna Rada of Ukraine has exceeded its constitutional powers by adopting the Law No.1540, according to which the Commission is a permanently functioning independent state collegial body whose members are appointed and dismissed by the President, which is not consistent with the Constitution.

The Commission is a so-called “independent regulator”. Such bodies have been created on the basis of the experience of some European countries after the adoption of the Constitution. Their purpose was to reduce the Government’s influence on the operation of markets that are in a state of natural monopolies. “Independent regulators” should ensure a balance between the state, consumers and actors operating within the respective markets. Therefore, the Commission should operate autonomously from the CMU, which means being outside of the system of central executive branch bodies (CEBB) that is subordinated to the Government.

In the opinion of the CPLR’s experts, the Commission’s existence outside of the CEBB system is justified from the standpoint of the need for adequate exercise of regulatory functions and overcoming the practice of direct interference into the work of the Commission by the Government. The Commission’s return into the CEBB system would mean restoring its dependence on the Government, resulting in inadequate exercise of its regulatory function. This, in turn, could lead to violations of consumers’ interests and failure to provide services of adequate quality.

Resolution of this situation and correct determination of the Commission’s legal status, without violating the logic of its formation, would be possible only by amending the Constitution. These amendments should define the Commission as a separate, specific branch of public administration, without including it into the system of executive branch bodies. In addition, the Law No. 1540 would need to be amended to provide for the procedures of its establishment and appointment of its members.

As a compromise for the transition period before amending the Constitution, the Commission could be returned into the CEBB system, but as a special category of CEBBs with special status, clearly stating that its relationships with the CMU must differ substantially from the Government’s relationships with ministries, services, agencies, or inspectorates. This option would also require amending the legislation. Peculiarities of the Commission’s  legal status and its relationships with the CMU could be set forth by a comprehensive Law of Ukraine “On the Cabinet of Ministers of Ukraine and the Central Executive Branch Bodies”, the adoption of which is supported by the CPLR.

Cost of passport documents to increase from July 1

June is the last month during which citizens will be able to apply for a passport card or foreign passport at a lower cost. Thus, this month, the State Migration Service published an announcement from the Government regarding the increase in cost for these documents starting July 1. In particular, a domestic passport will cost UAH 345 (currently – UAH 279) if issued within 20 business days, or UAH 471 (currently – UAH 366) if issued within 10 business days. A foreign passport will cost UAH 683 (currently – UAH 557) if issued within 20 business days, or UAH 1,034 (currently – UAH 810) if issued within 7 business days. As a reminder, the Law on the Unified State Demographic Register sets forth that the administrative fee for passport issuance is made up of several distinct fees, including one that is set by the Government as a “service” fee and one that is set by the monopolist “Ukraine” Printing Plant as a fee for the document blank. Similarly, the Printing Plant has also raised its share of the fee at the same time as the Government.

In our opinion, such non-transparent procedure for setting the fees for passport and other administrative services is unacceptable. Thus, the criteria for paid and unpaid administrative services have not yet been established in Ukraine, nor have the ranges for these fees been set. Given the lack of a unified law governing the calculation and levying of administrative fees, the regulation in the area of payments for administrative services is currently chaotic, with different indicators in place for setting the specific amounts of such fees. As a result, citizens are often subjected to fees without proper legal grounds and at unjustified levels, such as with the “Document” State Enterprise. At the same time, a number of administrative fees in connection with certain administrative services are unjustifiably low, resulting in insufficient material and technical provision for relevant government bodies (e.g., the state duty for marriage registration is only UAH 0.85), while some services are entirely free (e.g., registration of legal entities).

Thus, the time is ripe to finally comply with the requirement of the Strategy for Public Administration Reform concerning the regulation of payments for administrative services by a law. It is necessary to adopt the Law of Ukraine “On Administrative Fees” that would set forth the following: definition, types, and functions of administrative fees; principles of its calculation, payment, and use; procedure for setting specific amounts of administrative fees; clear criteria for amounts of such fees; list of administrative services to be provided on a no-fee basis; clear procedure and ways for payment of administrative fees; mechanisms for targeted use of funds received from payment of such fees; and reporting on the use of these funds. This Law should contain an Annex setting forth the List of Most Popular Administrative Services, indicating clear amounts of fees for their provision. This is in line with the experience of many EU member states, such as Poland, Germany, and the Czech Repulic.

“The time is now ripe for Ukraine to finally end the insufficiently justified payments for administrative services, and even more so – to end the illegal collections for their provision. The Government needs to approve the draft law on administrative fees, and the new Parliament needs to finally adopt this law”, noted the CPLR expert Yevhen Shkolnyi.

President Zelenskyi repealed decrees of his predecessor concerning the appointment of two High Council of Justice members and announced a new competition

On June 10, the President of Ukraine V. Zelenskyi repealed the decrees of his predecessor concerning the appointment of A. Vasylenko and M. Isakov as members of the High Council of Justice (HCJ). CPLR experts have noted that these members were appointed by P. Poroshenko contrary to the law that requires a competition to be held for these positions. The appointments occurred despite the fact that the competition was not finished. Nevertheless, the attempt to repeal the appointment of the HCJ members is similarly dubious, since the law sets forth an exhaustive list of grounds for terminating the authority of HCJ members.

In CPLR’s opinion, the problem of HCJ composition must be resolved in a comprehensive manner. It would be appropriate to introduce legislative amendments to institute integrity vetting of the HCJ members, with failure to pass such vetting as the grounds for termination of authority for current members or for ceasing participation in the competition for candidates. Such review could be carried out by the Public Council of International Experts, which demonstrated its effectiveness during the competition for the High Anti-Corruption Court. It is also necessary to study the possibility of introducing constitutional amendments concerning the procedure of constituting this body. Under current circumstances, it would be appropriate that not less than half of this body be appointed from among representatives of the specialized expert community.

Raiding takeovers of businesses and government bodies through dubious court decisions have become widespread

On May 24, Baryshivsky District Court in Kyiv Region, acting purportedly upon an application by a person whose flight was allegedly delayed, issued a preliminary injunction securing the claim by suspending the operational license of SkyUP low-cost airline.

On May 27, Suvorovsky District Court in Odesa, during consideration of a civil case filed by one person against his neighbor to establish falsity of information, prohibited the members of the High Qualification Commission of Judges of Ukraine to undertake any actions relating to the conduct of qualification examinations.

On June 11, the same Baryshivsky District Court, in a case to establish falsity of information, prohibited the First Deputy Chair of the National Bank of Ukraine to carry out her authority.

In the opinion of CPLR expert Roman Kuybida, the revival of the practice of raiding takeovers has become possible as a result of the failure to follow through on the goals of the judicial reform; for the most part, the cleansing of judicial ranks has not taken place. Widespread corruption, oligarchic influence, and de facto impunity for adopted judicial decisions makes it possible for judges to agree to issue such decisions.

None of the above injunctions were enforced, and one of them (concerning the HQCJ) was reversed by the appellate court. The arbitrariness of such decisions undermines the foundational principle of the mandatory nature of court decisions. This, in turn, weakens the judicial branch, as it creates a dangerous precedent for disregarding judicial decisions seen as unacceptable.

The PIC exposed likely falsifications by the HQCJ and managed to secure the repeal of provisions that impeded the PIC’s work

On June 12, an incident occurred during the High Qualification Commission of Judges meeting, which could indicate falsification of the qualification examination results by the Commission’s members. By law, the HQCJ may overrule an opinion by the Public Integrity Council provided that at least 11 out of 16 HQCJ members vote in favor of this.

That day, 12 HQCJ members were present during the session. Following the hearing into Judge I. Hryban’s case, the HQCJ members departed for the deliberation room, and then returned with a decision announcing a break. As it later turned out, the HQCJ failed to overrule the PIC’s opinion as this decision did not gather 11 votes in its favor, with two HQCJ members voting against it.

By law, such an outcome of the vote should have become grounds for recommending the removal of the judge from office – rather than for announcing of a break. In other words, the HQCJ deliberately manipulated the voting results. This suggests that the Commission’s work is not aimed at genuine cleansing of the judiciary, but rather at retaining in office those judges who lack integrity. This was stated both by the PIC, whose members witnessed a telephone conversation between one of the HQCJ’s members and its Head, and by one of the HQCJ members, A. Kozlov, who withdrew from the session following this incident.

Such finding is further confirmed by the events that ensued in subsequent days. In particular, on June 13, the Commission postponed the plenary review of all cases involving judges with the PIC opinions, motivating this by the fact that it has not received the materials needed for additional review, including documents from the PIC. The presiding member did not indicate which materials it did receive, which judges they concerned, or why it was postponing the review concerning all of the judges. The following day, the HQCJ completely removed from its agenda the matter of verifying the panels’ decisions concerning all of the judges, without offering any explanation.

On June 14, it was reported that Commission member T. Lukash submitted a voluntary resignation request, which was granted. On June 26, the plenary session did not occur due to the lack of quorum. And on June 27, unofficial sources reported that the Ombudsman removed from office the HQCJ member A. Kozlov, the whistleblower on the HQCJ’s vote falsification.

Given the fact that the tenures of Commission members S. Prylypko and P. Lutsiuk are slated to end in July, it is apparent that, in the nearest future, the HQCJ will lack quorum to hold plenary sessions.

In the opinion of CPLR experts, these events have confirmed the HQCJ’s inability to ensure full-fledged cleansing of the judiciary. It is necessary to look into the possibility of the Commission’s reorganization so that, during the reform period, the judicial selection and evaluation bodies would include more civil society sector representatives who enjoy greater public trust than the judges themselves.

Also on June 25, the PIC members have succeeded in fully proving the unlawfulness of provisions of the HQCJ’s Rules of Procedure that impeded the Council’s work. The Grand Chamber of the Supreme Court affirmed the opinion of the Administrative Cassation Court that repealed the above-mentioned provisions of the HQCJ’s Rules of Procedure.

Constitutional Court standing guard for individual liberty during criminal proceedings

On June 13, the Constitutional Court of Ukraine issued an opinion concerning unconstitutionality of Article 392, Section 2 of the CPC of Ukraine.

The CPC provisions that were found unconstitutional established that the right to appeal a decision to extend the duration of detention before the court of first instance can only be exercised while appealing a final judgment in the case. In other words, such decisions were not subject to appeal until the completion of the prosecution.

The Court reached an opinion that the above provisions did not allow for separate appellate review of judicial decisions to extend the duration of detention until the completion of a trial, and therefore failed to ensure the effective exercise of the right to judicial protection and did not meet the criteria of fairness and consistency (proportionality).

Moreover, on June 26, the Constitutional Court issued an opinion concerning non-compliance of Article 176, Section 2 of the CPC of Ukraine with the Constitution of Ukraine. These provisions established that pretrial alternatives to detention cannot be applied to individuals suspected of commission of crimes against the state. These CPC provisions allowed detention of a person on the basis of only a pro forma court decisions, thus violating the principle of the rule of law. The Opinion emphasized that the contested provision justified the need for detention by the severity of an incriminated act alone, which failed to ensure a person’s constitutionally guaranteed right to liberty and personal inviolability.

The above-mentioned Opinions were issued in response to constitutional complaints filed by the citizens.

President of Ukraine submitted a petition to remove Prosecutor General

On June 11, the President submitted to Parliament a petition to remove Yuri Lutsenko from Prosecutor General’s position.

According to the petition, Yuri Lutsenko does not meet the requirements for prosecutors set forth by a Law – notably, with respect to having legal education and specialized work experience – and, as such, may not hold an office within the prosecution system.

The rationale contained in the petition are persuasive, since it is based on the principle of uniformity of the status of prosecutors and the Law’s requirements for holders of prosecutorial office.

At the same time, such procedure for removal does not comply with Article 42 of the Law on Prosecution, as the legal grounds for removal of a Prosecutor General from this administrative position are not present.

SBI Director removed a number of the Bureau’s managers

In June, it was reported that the Director of the State Bureau of Investigations removed from office the following managers: director of the Poltava regional office, head of the Second Department for Organization of Pretrial Investigation, head of the Department for Planning and Finance, and head of the Department for Logistics. They were removed due to purported non-compliance with the position requirements following a probationary period, as envisioned by the Law of Ukraine “On Civil Service”.

At the same time, this removal procedure does not comply with the specialized Law “On the State Bureau of Investigations”. Specifically, the Law states that the SBI Director appoints and removes directors of regional offices and heads of the SBI’s central office units upon a recommendation by the Competition Commission (Article 13 of the Law). Moreover, the Director must clear such a recommendation with his deputies (Article 12 of the Law). Nether such recommendations nor such clearances have occurred.

Constitutional Court issued to opinions repealing property declaration requirement for anticorruption activities and finding one of the NABU functions unconstitutional

On June 6 of this year, an opinion of the Constitutional Court of Ukraine repealed the requirement to file property declarations by representatives of civic organizations working in the area of preventing and countering corruption.

This CCU decision was anticipated for a while, as it was seen practically as the last resort for repealing these provisions because, in the past, Verkhovna Rada of Ukraine did not manage to adopt the necessary amendments to the Law “On Corruption Prevention”. This opinion was similarly anticipated by the international partners, who have called for the repeal of e-declarations for civic activists for more than two years.

As a reminder, the Center for Policy and Legal Reform, whose opinion formed the basis for the constitutional petition, was one of the parties initiating the respective constitutional petition. Thanks to the support from the coalition of civic organizations “Reanimation Package of Reforms”, the Parliament members, and the Ombudsman, it was possible to put forward to the CCU the subject of unconstitutionality of e-declarations by anticorruption activists. CPLR Board member Yulia Kyrychenko, along with Parliament members Aliona Shkrum and Yehor Soboliev, became one of the petitioner’s authorized representatives.

On June 5, the CCU opinion found unconstitutional the right of the National Anticorruption Bureau of Ukraine “subject to grounds provided by law, to submit to court complaints seeking invalidation of contracts in a manner provided by law”.

In the course of three years, courts have resolved 35 complaints in favor of the NABU. A total of 97 contracts were deemed invalid by court judgments that entered into legal force. This laid the foundation for the recovery of UAH 6 billion to the state. The above mentioned CCU decision will this work significantly more difficult.

Even though the CCU opinion does note that, although there is a Specialized Anticorruption Prosecutor’s Office operating within the prosecution system, which is charged with representing in court the interests of the state in cases related to corruption offenses provided for by law, at present, the SAPO’s capacity to effectively carry out these functions is dubious, while the Law “On Prosecution” sets forth significant restrictions on prosecutors’ right to represent interests of the state in courts.

The mentioned CCU opinion will also make it impossible to implement a model for forfeiture of unexplained assets from individuals charged with carrying out state or local self-governance functions, which was proposed by the President of Ukraine two days prior to the promulgation of this opinion. Finally, in those cases where the above-mentioned court judgments on the NABU’s complaints have not yet been enforced, there is now the possibility to have these judgments reviewed.

Since the CCU opinion is final and not subject to appeal, it is necessary to recommend such legislative amendments that will enable the NABU and the SAPO to effectively carry out their tasks to stop corruption crimes and appeal illegal contracts.

Issues of appointments to the Constitutional Court of Ukraine presented and constitutional complaint writing trainings held in Odesa

At the beginning of the training, CPLR Board member Yulia Kyrychenko presented on the main requirements related to the content and the form of constitutional complaint. The following day, Dmytro Terletskyi (UPLAN expert, defense advocate, and associate professor at the Odesa National Law Academy) noted the following during a press conference: “Under this model, a person petitioning the Constitutional Court of Ukraine, is naturally guided by the desire to protect own rights, receive compensation, and restore the relationship to their previous state that existed prior to the application of unconstitutional provisions of a law of Ukraine”.

Center of Policy and Legal Reform summarized the outcomes of projects supported as part of the grant competition “Strengthening the Role of Civil Society in Facilitating Democratic Reforms and Increasing Accountability, Responsibility, and Quality of Government”

Center of Policy and Legal Reform summarized the outcomes of projects supported as part of the grant competition “Strengthening the Role of Civil Society in Facilitating Democratic Reforms and Increasing Accountability, Responsibility, and Quality of Government”

Prospects for the prefect institution discussed in Kharkiv

On June 26, experts from Kharkiv and Kyiv, representatives of unified territorial communities, and representatives of district administrations participated in a panel discussion on “The Future of Constitutional Reform: Will the Prefect Institution Become Functional in Ukraine?”.

“First, the enlargement of districts must occur. Preferably, the law on amending the Constitution should also provide for a change in name: in lieu of rayon, we should transition to povit. And, once Ukraine is divided into approximately 110-120 povits, then a prefect office should emerge for each of these povits”, noted Ihor Koliushko, Head of the CPLR Board.

Recent Materials from the UPLAN Network

•  «Enlargement of Districts: Methodological Approaches, Mechanisms, and Outcomes» (M. Trypolska, Zaporizhzhya)
•  «A Knight Move. Compensation of Damages Incurred from Unconstitutional Acts» (D. Terletskyi, Odesa)
•  «How Public Communication Units Are Carrying Out State Policy for Supporting the Development of Civil Society» (A. Orlova, Odesa)
•  «Analyzing the Budget: Main Points Made Accessible» (B. Malyniak, Ternopil)
•  «Is the Prosecution Ready to Change?» (K. Ditchuk, Kyiv)

Follow the UPLAN Network News:

• On the web portal: http://uplan.org.ua
•  On Facebook: https://www.facebook.com/UkrainianPlan/
•  On Telegram: https://t.me/gidreforms

The State of Ensuring the Independence of Judges in Ukraine: Shadow Report for 2018

By R. Smaliuk, M. Sereda

A shadow report to the Annual Report on the State of the Independence of Judges in 2018 published by the High Council of Justice in April 2019, which was presented during expert discussion on June 21, 2019. Particularly emphasized are the facts that have significant influence over the independence of judges but yet were left outside the scope of the official report.

Summary of Grant Competition “Strengthening the Role of Civil Society in Facilitating Democratic Reforms and Increasing Quality of Government”

The publication summarizes outcomes of the implementation of grants that were supported by the Center of Policy and Legal Reform under the project “Strengthening the Role of Civil Society in Facilitating Democratic Reforms and Increasing Accountability, Responsibility, and Quality of Government” in 2018–2019. The publication was prepared with the support of the European Union.