Newsletter: March 2019

Відсутність конкурсної процедури відбору суддів Конституційного Суду України

The first round of voting in presidential elections was conducted without significant and systemic violations that could affect the outcome of the election; therefore the elections can be recognized as valid.

According to the results of the National Exit Poll published on March 31, the five leaders of the vote are as follows: Volodymyr Zelensky – 30.6%, Petro Poroshenko – 17.8%, Yulia Tymoshenko – 14.2%, Yuriy Boyko – 9.7%, Anatoliy Hrytsenko – 7.1%. The official results of the presidential election published by the Central Election Commission are as follows: Volodymyr Zelensky – 30.24%, Petro Poroshenko – 15.95%, Yulia Tymoshenko – 13.40%, Yuriy Boyko – 11.67%, Anatoliy Hrytsenko – 6.91%. According to the “Opora” Civic Network data, the regular presidential elections on March 31, 2019 took place under competitive conditions and in compliance with basic standards of genuine election, while instances of violations of national legislation did not pose a critical obstacle for citizens to exercise their right to elect and be elected.

Thus, the most important task for Ukraine at this moment is to achieve the logical outcome of the election process – the inauguration of the newly elected President, and it can be stated that the first step towards implementation of this task was handled successfully. Second round of voting should take place on April 21.

Do the ministry directorates work?

The report on implementation of the Public Administration Reform Strategy in 2018, the subject of target structures of secretariats offices of five ministries, and next steps in ministries reform were considered at the Coordination Council meeting.

The target structures of the secretariats of the Ministry of Regional Development, Ministry of Energy and Coal Industry, Ministry of Infrastructure, Ministry of Culture, and Ministry of Health were approved. At the same time, the MOH was recommended to review the functions of its Department for Reforms Implementation in order to optimize them, as well as to redistribute and separate improper functions.

The Ministry of Energy and Coal Industry’s target structure was approved taking into account the recommendations regarding the introduction of the branch science department functions at the Directorate of Strategic Planning and European Integration. The target structure of the Ministry of Culture was also approved, taking into account the recommendations on transfer of international cooperation management functions to the Directorate of Strategic Planning and European Integration.

The target structure of the Ministry of Infrastructure was approved taking into account the change of the name of the Directorate of Automobile and City Transport and Road Infrastructure to the Directorate of Automobile Transport, Electric City Transport, and Road Infrastructure.

In addition to the target structures in the ministries’ secretariats, the Coordination Council members noted the report on the implementation of the Public Administration Reform Strategy. The Ministry of Economic Development and Trade was also recommended to create working groups on issues regarding eliminating the ministries’ state property management functions, provision of administrative services, and exercise of state oversight (control).

The following issues are planned for discussion at the next Coordination Council’s session: how the directorates of the ministries work and do they formulate state policy, as they were created precisely for this purpose. The society finds important the effective operation of these bodies and improvements in the fields and areas of their responsibility, rather than the names or number of units and positions in the ministries.

According to Ihor Koliushko, the Head of the Board of the CPLR and a member of the Coordination Council, the target structures of all ministries have certain disadvantages. More directorates are being created than originally planned. The conduct of competitions for the positions of reform experts is behind schedule, resulting in delays in appointment. It would be better to create fewer directorates with a larger number of staff, and then separate them as time passes (if necessary).

The target structure of the Ministry of Culture secretariat is questionable in light of yet another redesign and the emergence of new elements that do not correspond to the reform objectives. Additional information can be found by visiting the following link on the Government’s official website: https://bit.ly/2Z6QBdU.

Draft law on the administrative procedure presented to members of Parliament

Draft law on administrative procedure was presented to members of Parliament’s Committee on State Building, Regional Policy and Local Self-Government (hereinafter – Committee on State Building) during its meeting, along with a detailed explanation why it should be supported.

On December 28, 2018, the Government introduced in Parliament a draft law “On the administrative procedure” (Registration №9456). Attempts to adopt this law have been ongoing for over 20 years, thus far unsuccessfully. The main reason for this is the lack of understanding among Ukrainian politicians, civil servants, the public, and most scholars of the substance of general administrative procedure, its functioning mechanism, and its importance and the necessity for state and society. As a result, the Ukrainians are suffering from scandal-ridden constructions, arbitrary inspections, unjustified reductions of social benefits, etc. Today, the citizens and the business finally have the chance to get a fair general administrative procedure that will bring their relations with the authorities to a fundamentally new quality level.

The Parliament’s Committee on State Building has been identified as the lead specialized committee on draft law №9456. As a result, the Government, international experts, and the public decided to convince members of Parliament of the importance of introducing the general administrative procedure in Ukraine and gain their support. To this end, the substance of the draft law and its main provisions were presented and explained at the meeting of the Committee held on March 13. In addition, representatives of the Secretariat of the Cabinet of Ministers, the Ministry of Justice of Ukraine, the Centre of Policy and Legal Reform, the EU Delegation, and international programs such as SIGMA and EU4PAR, sought to dispel fears, certain “myths”, and made-up “deficiencies” circulating around the introduction of the general administrative procedure.

The meeting resulted in a decision to hold a roundtable, convened by the lead committee, before the official consideration of the draft law.

“There was nothing private in Soviet times, so there was no need to regulate an official’s relations with citizens. Everything was governed at a regulatory, instructive level and, under this approach, departmental interest dominated. As a result, politicians, scholars and the whole public in Ukraine still lack information on the general administrative procedure and its purpose. 20 years have been spent on the preparation and advocacy of this draft law. Finally there are good chances of success”, noted Viktor Tymoschuk at the Parliamentary Committee’s meeting.

We emphasize that the draft law should be adopted in the first reading before the upcoming parliamentary election in the fall of this year. Otherwise, this reform risks being postponed for several years.

Selection of judges to the High Anticorruption Court and the Supreme Court reaches the final stage

On March 8, the High Qualification Commission of Judges declared the final results of the competitions and made recommendations for the appointment of 39 persons to the High Anticorruption Court and 78 persons to the Supreme Court (including 16 candidates recommended despite negative opinion of the Public Integrity Council). As of the end of March, the High Council of Justice refused to submit the petition for the appointment of one of the candidates to the Supreme Court, and postponed the review of recommendations regarding 8 additional candidates. One candidate for the Anticorruption Court withdrew from competition upon his request. The presidential decree on appointments is currently pending.

CPLR expert Roman Kuybida believes that: “The Public Council of International Experts mechanism used during the selection of anticorruption judges proved to be more effective than the Public Integrity Council mechanism. International experts were directly involved in decision-making jointly with the HQCJ. If at least four out of six PCIE members were against a candidate, such a person was removed from competition. Instead, the PCI’s opinions were advisory for the HQCJ. Therefore, the HQCJ was able to reject almost half of the negative opinions by the PCI during the competition to the Supreme Court, without even providing any rationale for such decisions”.

It should be reminded that the new Supreme Court has been acting for more than a year with 118 judges. This number of judges turned out to be insufficient; therefore, additional selection was announced. The High Anticorruption Court is established for the review of high-level corruption cases and should launch its activity this year.

New personnel problems in the HCJ and the HQCJ

On March 14, the Congress of Representatives of Higher Legal Education Institutions elected a member to the High Council of Justice (V. Hryshchuk), with one additional position remaining vacant. The key problem faced by the Congress was whether the educational institutions within the Ministry of Internal Affairs structure should be considered “military”, which would make their participation in the Congress prohibited by law. According to media reports, the HCJ and the MOJ advocated against the inclusion of delegates representing such institutions, while the Ministry of Education and Science took the opposite stance. Eventually, such delegates were allowed to vote.

Interestingly, only 7 out of 12 positions on the HCJ that will become vacant in April will be filled. Five vacancies are at risk being unfilled, as currently there are no steps being undertaken to select new members.

There were also problems with the HQCJ’s activity, as the legitimacy of some of its members’ positions was disputed. Some of them were appointed for six years; but in 2015, the legislature reduced the tenure of the HQCJ members to four years. Currently, the four-year term since their appointment has passed, but these members have continued to participate in the HQCJ work based on them being appointed for six years. However, in March, the Ombudsman and the State Judicial Administration of Ukraine announced competitions for positions of two HQCJ members, evidently believing that the tenures of the HQCJ members S. Shchotka and T. Veselska ended in December. On March 28, the Ombudsman’s Office declared retired judge M. Sirosh as the competition winner. During the first competition to the Supreme Court, this judge received a negative opinion by the PCI, after which he withdrew from participating in the selection.

There are also continuing disputes in the courts concerning the lack of authority of three members of the Committee – S. Koziakov, S. Shchotka, and T. Veselska. According to media reports, the first instance court rejected claims concerning authority of S. Koziakov and S. Shchotka as the members of the HQCJ, but this decision is likely to be appealed.

CPLR expert Roman Smalyuk: “Personnel problems in the HCJ and the HQCJ, made more acute by competing readings of the law by state authorities, give rise to numerous grounds for disputing both the composition of these bodies and their decisions before a court, which threatens proper functioning of the justice system as a whole.”

European Court of Human Rights: life prisoners in Ukraine should have the right to review of their life imprisonment sentences

On March 12, the European Court of Human Rights issued a judgement in Petukhov v. Ukraine (No. 2) case. The applicant, who is serving a life sentence, complained due to the lack of clear conditions under which he could expect a pardon.

The ECHR drew attention to the fact that, according to the wording of the Presidential Decree “On Regulations on the Pardon Procedure”, life prisoners may be pardoned in exceptional cases and under extraordinary circumstances. In ECHR’s opinion, the terms “exceptional cases” and “extraordinary circumstances” are unclear. Thus, life prisoners do not have guidelines for behavior under which they can expect to be released, while a predictable legal procedure for this is absent. The ECHR has concluded that this situation is incompatible with the goal of rehabilitation and violates the European Convention on Human Rights.

CPLR expert Maksym Sereda believes that “The ECHR judgment forces Ukraine to introduce predictable mechanisms for review of life sentence, and it would be best for these procedures to be judicial in nature”.

A draft law №2033а introducing a mechanism for review of arbitrary sentences, under which life prisoners are serving sentences for crimes committed by others, is pending before Parliament. There is also draft law № 7337 “On the penitentiary system”, which envisions the possibility for life prisoners who have spent at least 20 years in prison to provide the court with a personal plan for reintegration into society and have the prospect of early conditional release.

The conduct of qualification assessment resumes

Since November 2018, the number of qualification assessments of judges conducted was low, due to the High Qualification Commission of Judges being busy with competitive procedures. Since mid-March 2019, the HQCJ has resumed conducting qualification assessments of judges.

From the beginning of the year, 97 judges have successfully passed the assessment, including 39 Supreme Court judges, 25 High Anticorruption Court judges, and 33 judges as part of the qualification assessment procedure. 7 judges did not pass the qualification assessment successfully, including 2 who did not pass the exam and 5 who did not get the minimum score based on the interview results. Another 18 judges were found by the HQCJ to meet the requirements of the occupied position, but decisions concerning them have not gone into effect due to negative opinions by the Public Integrity Council.

On March 11, the PIC issued a statement calling on the HQCJ to coordinate the interview schedule with the public, repeal the rules of their Regulation that complicate the work of the PIC, and increase the transparency of the assessment procedures. The PIC emphasized they will continue to do everything possible to shed light on the facts of judges’ dishonest behavior.

Judicial innovation: are the courts moves with the time?

Service orientation is commonplace in business and is starting to be implemented in the public sector. There is progress in creating comfortable conditions for obtaining administrative services in Ukraine, but the courts are still not being perceived as an accessible and comfortable institution aimed at meeting the peoples’ needs.

We decided to find out what innovative measures are being used by the courts to improve the comfort and convenience of using court services.

For this purpose, we sent out requests to all Ukrainian courts (over 600), and then analyzed and systematized the received responses. We believe that 50 responses that we received are sufficient to make certain general findings.

COMMON PRACTICES

Access to court for people with disabilities

More than half of the responding courts reported on measures taken to improve access to court for people with disabilities. The situation with access to court for people with disabilities in the courts of appeals is relatively better. In local courts, this indicator is much worse.

19 courts reported that access to court buildings is adapted to the needs of people with disabilities. Signs written in Braille characters are relatively common: a total of 11 courts reported the presence of such accommodation.

The remaining measures taken for the comfort of people with disabilities are less widespread.

Some of the initiatives of the courts were outright impressive. In particular, the Sixth Appellate Administrative Court (located in Kyiv) broadcasts video materials about the court’s work in sign language in its building, while the court’s website is adapted to the needs of people with visual impairments. In its turn, Vinnytsia Appellate Court organizes sign language training courses for its employees.

Dissemination of information on court operations

The most popular means of disseminating information about the work of the court are online resources. Thus, 21 courts have reported regularly updating useful information on their websites, while 16 courts have their own social media pages (channels), including Facebook, Twitter, and Telegram. The Sixth Appellate Administrative Court went even further and created a bilingual Facebook page and separate groups to discuss the new Code of Administrative Justice of Ukraine, an electronic declaration, and a page for posting professional essays and sketches on relevant legal issues (PRO Pravo), as well as a Twitter channel in English.

The courts also undertake efforts to work with the media, facilitating the dissemination of information about court operations. For example, the Vinnytsia Appellate Court has introduced the practice of providing journalists with advance information on high-profile cases, facilitates rapid interviews of judges and court employees by journalists, has created a handout for media representatives, etc.

Some of the courts have produced videos (Economic Court of Odesa Region), a film, and even a series of programs on court operations (Zarichny District Court in Sumy). At the same time, the Seventh Appellate Administrative (located in Vinnytsia) has produced a series of programs for secondary school students regarding the work of the judicial system in general. These videos are broadcasted on local TV channels and disseminated through the Internet.

The most popular among the means of judges’ direct interaction with citizens is the open house day.

Increasing the comfort of staying in a court building and using court services

Free WiFi Internet access, water cooler, and a cell-phone charging station are gradually becoming the norm in courts. Some courts are trying to equip separate rooms for case participants and/or lawyers where they can prepare for a court hearing (Sixth and Sevenths Appellate Administrative Courts) or free access to copying equipment (Northern Appellate Economic Court). There is even a mediation room in the Economic Court of Odesa Region.

Among the measures aimed at improving the use of court services, the most common is posting of useful information on information stands insides court buildings. In particular, information such as necessary requisites for payment of court fees, excerpts from laws, and samples of procedural documents is posted on informational stands.

Some courts have reported about creating comfortable conditions in their clerk’s offices. For example, the clerk’s offices in Vinnytsia and Zhytomyr Appellate Courts and Odesa District Administrative Court operate without closing for lunch break, while the “One-Stop Shop” service, through which one can submit and obtain the necessary documents (for example, a court decision) in one place, has been introduced in Horodenkivsky District Court of Ivano-Frankisvk Region, Economic Court of Odesa Region, and Sevenths Appellate Administrative Court.

Feedback

A lot of courts are taking measures to establish feedback with users of court services. Online communication tools are being developed. In particular, Khmelnytsky District Administrative Court hosts online chats with court employees (using Viber and Whatsapp), while the Seventh Appellate Administrative Court, aside from such chats, also practices office hours for citizens to speak with the court’s leadership through Skype.

Some of the courts are taking measures to establish feedback not only with users of court services, but also between the court leadership and court employees. In particular.

THE MOST ORIGINAL INNOVATIONS

In conclusion, we present the five most interesting practices (in our opinion), which deserve being implemented as broadly as possible:

1. Electronic services for case participants, such as online ordering of copies of court decisions and review of case files (Seventh Appellate Administrative Court in Vinnytsia).

2. “Without the Robe” Project: informal rapid interviews with judges and court staff (Vinnytsia Court of Appeal).

3. Civic Education project “Judicial Journalism School”. The project introduced by the Sixth Appellate Administrative Court is a good example of court and media synergy towards increasing public confidence in the judiciary. In our opinion, it would be worthwhile to expand the range of school’s audience to cover not only students, but also professional journalists.

4. The website of the Sixth Appellate Administrative Court is a good example of optimizing the site for the needs of people with visual impairments.

5. “A Little Visitor’s Corner” (Severodonetsk City Court in Luhansk Region, Vinnytsia Appellate Court) is a place where visitors with children can spend time while waiting for a court hearing.

In summary, we can conclude that most of the positive changes can happened through the courts’ own efforts. Certain courts, without waiting for instructions from above, undertake efforts to ensure that citizens are aware of court operations and that users of their services feel comfortable and have no hard feelings even in case of losing their case.

Roman Smalyuk
Maksym Sereda

The Government has provided for the creation of the Supervisory Board within the free legal aid system

On March 20, the Cabinet of Ministers of Ukraine amended the Regulations on the Legal Aid Coordination Center to provide for the creation of the Supervisory Board. The purpose of these amendments is to ensure the autonomy and institutional independence of the free legal aid system from the Ministry of Justice of Ukraine and other executive authorities. The Supervisory Board’s objectives will be control and monitoring of the activities of the Coordination Center and its leadership, to provide an independent assessment of the system. The Regulation provides for mechanisms and criteria for the selection of the Supervisory Board members, approval of its membership, and procedures for conducting competitive selection of its members.

This decision has become the Government’s response to the calls by the public and international partners on the need to ensure independence of the legal aid system from political influences. The demand for ensuring the independence of the system became acutely felt during the election of the current Legal Aid Coordination Center Director in 2017.

The Civic Control Council under the SBI to be established based on online vote

On March 20, the Director of the State Bureau Investigation announced the selection of new membership of the Civic Control Council. According to the March 13 decision of the Cabinet of Ministers of Ukraine, the Council will now be established based on the rankings from an Internet vote.

This decision by the Government and the SBI regarding changing the procedure for selection of the Civic Control Council members was adopted as a result of taking into account last year’s public demands. The first composition of the Council was formed through abuse of obsolete procedures that did not allow for the selection of representatives of civil society organizations working in the area of law enforcement agencies reform.

How to write a complaint to the prosecutor – theory and practice

What is a disciplinary complaint to the prosecutor, what requirements and how it is being considered by the Qualification and Disciplinary Commission of Prosecutors – CPLR experts and involved specialists discussed during seminar “How to write a complaint to the prosecutor to the Qualification and Disciplinary Commission of Prosecutors” with attorneys, activists and all those, who interested in this issues.

In addition, the trainers deeply told about the grounds for prosecutors bringing to disciplinary responsibility and shared their own experience in writing disciplinary complaints. Also, in order to consolidate knowledge of participants, they were offered to file a complaint in accordance with the model established by the Law of Ukraine “On the Prosecutor’s Office”.

In March, such seminars took place in Dnipro and Lviv. On April 12, experts will visit Kharkiv, and on May – Odessa.

Let’s remind that, in January experts of the CPLR presented the research “Disciplinary responsibility of prosecutors in Ukraine”, which dedicated to study of practice of prosecutors attraction to the disciplinary responsibility in 2017-2018 years.

The NABU’s reputation is threatened

On March 11, a video “What did it cost to drop defense cases: The role of NABU, SSU, and prosecution (secret correspondence, parts 4-5)” was released in the TV program “Our Money with Denys Bihus”. From the content of this video and the accompanying publication “Army. Friends. Cash. Parts 4 and 5” it appears as though the National Anti-Corruption Bureau of Ukraine deliberately delayed the pre-trial investigation in criminal proceedings regarding embezzlement in the defense sector, while some of its detectives actively contributed to the activities of one of the criminal gangs that “specialized” in systematic embezzlement of state funds by supplying poor-quality or contraband parts for military equipment, including supplying these parts at inflated prices, for “illicit payoffs”, etc.

On March 12, the SBI opened a criminal investigation into possible facts of obtaining illicit benefit by the PGO, SSU, SFSU, and NABU officials for failure to conduct pre-trial investigation and prosecute persons involved in corruption in defense sector.

Starting from March 12, the NABU has published a series of materials (explanations, interviews by Artem Sytnyk, clarifications on published information, etc.), which rejected any allegations in facilitating corrupt schemes in the Ukrainian defense sector.

It should be noted that most of the “allegations” addressed to the NABU are based on correspondence and assumptions that have not yet been officially verified.

That is why the CPLR experts call upon the public and the international partners to wait for the official results of relevant criminal proceedings and only after that to make any conclusions on the effectiveness, integrity, and impartiality of the NABU’s individual employees and leadership.

CPLR experts analyzed anticorruption programs of government bodies

Opinions on anticorruption programs of a number of government bodies were published on the CPLR’s website. The analysis was performed according to a methodology designed by the CPLR experts Mykola Khavronyuk and Anton Marchuk. According to this methodology, assessment of an anticorruption program involves studying key principles of a body’s anticorruption policy, corruption risks in its activity, proposed measures for their elimination, education and dissemination of information on these measures, and, respectively, monitoring of program’s implementation. In addition, each opinion includes recommendations to improve the program.

As a reminder, new approaches to the development of anticorruption program of government and local self-governance bodies, which are based on the analysis of corruption risks, were introduced by the Law “On Preventing Corruption”. To implement this Law, the National Agency for Preventing Corruption developed the Methodology for Assessing Corruption Risks and the Recommendations on Elimination of Typical Corruption Risks, which were approved in late 2016.

Experts will continue analysis of anti-corruption programs and will prepare opinions regarding them. After that the monitoring report with the comprehensive assessment of the functioning of this institute will be prepared.

To review the analysis of anticorruption programs of government bodies, please visit the CPLR website at https://bit.ly/2HYNdML.

Corruption schemes: their qualification in criminal law and pre-trial investigation

Edited by M. Khavronyuk

The book is a practical manual on criminal law qualification and pre-trial investigation of corruption and corruption-related crimes. The publication is supported by the European Union.

CPLR Director of Scientific Development Mykola Khavronyuk: “In this book, the authors almost do not address the issue of qualification of corruption-related administrative offenses, and do not comment on anticorruption provisions of criminal procedure law. Instead, they primarily consider complex issues of legal qualification of all corruption and corruption-related criminal offenses (especially those within the NABU’s investigative jurisdiction) more thoroughly, using the latest investigative, prosecutorial, and judicial practice; and, secondly, offer detailed recommendations on the methods for their investigation”.

Responsibility for violations of electoral legislation: A manual for members of election commissions, police, investigators, and judges

Bondarenko B., Zadoya K., Kalmykov D., Kyrychenko Y., Khavronyuk M., Shekhavtsov R.

The manual includes commentary on all laws of Ukraine that provide for legal responsibility for violations of electoral legislation during the presidential and the parliamentary elections in Ukraine. The publication was supported by the United States Agency for International Development (USAID) and the Government of the United Kingdom.

Party financing: who, to whom, how?

The publication provides basic information on the state of political party financing – when and how it was introduced, how to check how much money a party received and for what needs it was used, etc. The publication was supported by the European Union.