Newsletter: May 2019

Constitutional Court of Ukraine dismissed the judge of the Constitutional Court and elected a new Chairman of the Constitutional Court

On May 14, the Constitutional Court of Ukraine dismissed Stanislav Shevchuk, a CCU judge who was the Chairman of the CCU.

The dismissal took place on the basis of the Conclusion of the Standing Committee on Rules and Ethics of the CCU of April 17, 2019, in connection with the commission of a substantial disciplinary offense, gross and systematic neglect of his duties, which is incompatible with the status of the CCU judge and established inconformity with the position in accordance with paragraph 3 of part two of Article 149-1 of the Constitution of Ukraine.

On the same day, Natalya Shaptala was elected Chairman of the Constitutional Court at a special plenary meeting.

Natalya Shaptala was appointed a judge of the Constitutional Court by the X Congress of Judges of Ukraine in September 2010. On September 30, 2010, the new Chairman of the Constitutional Court of Ukraine voted for the unconstitutionality of the Law “On Amending the Constitution of Ukraine” of December 08, 2004, bringing back the effect of the Constitution in the version of 1996, which led to the usurpation of power by Yanukovych.

Conducting any referendum is impossible now

Taking into account the recent statements by representatives of the team of the newly elected President of Ukraine on the need for a referendum to decide on the format of terminating the war with Russian Federation, we would like to note that it is impossible to conduct any referendum in Ukraine. To do this, it is necessary to regulate at the level of the law the procedures for organization and conduct of the referendum.

The Verkhovna Rada of Ukraine registered the Draft Law “On All-Ukrainian Referendum” No. 2145a. It proposes to consolidate at the legislative level the provisions on the preparation and conduct of an all-Ukrainian referendum in accordance with the requirements of the Constitution of Ukraine, taking into account the recommendations of the European Commission for Democracy through Law (Venice Commission) of the Council of Europe.

The draft law was prepared by a working group composed of well-known constitutionalists, leading experts in electoral law with the assistance of a specialized international organization IFES. Its adoption would unblock the possibility of holding referendums, and only then, we can start talking about the subject of a referendum.

On May 27, the CPLR, together with a coalition of civic organizations, issued a statement calling on the Parliament to provide a legislative opportunity to exercise the constitutional right of citizens to participate in an all-Ukrainian referendum by adopting the revised draft law No. 2145a.

Will government officials continue to work if the Prime Minister resigns?

How will the Government work if the Prime Minister of Ukraine resigns: this question concerns many Ukrainians?

According to the Government portal, Prime Minister of Ukraine Volodymyr Groysman decided to resign and thanked all Ukrainians for their joint work during the last three years. He said this in a statement to the press. He noted that the newly elected President of Ukraine Volodymyr Zelensky said that the Government should give up power to the newly elected President. “Nevertheless, I believe that you understand that the Government shall give up power to the newly elected Verkhovna Rada of Ukraine, and not to the newly elected President. However, I decided myself to resign. … For me, the country is extremely important, and its stability is a priority. Today I want to thank Ukrainians for three years of work, for what we managed to do. We have done everything together and we will do much in the future. In addition, in the new Parliament, together with like-minded people we will form a professional team that will be able to serve the state and make Ukraine successful”, – said Volodymyr Groysman.

According to Ihor Koliushko, Head of the Board of the CPLR, it is important to take into account the fact that the Prime Minister has submitted a resignation from himself personally, rather than on behalf of the Government. In accordance with part 3 of Art. 15 of the Law “On the Cabinet of Ministers of Ukraine”, he shall be released from office on the date of adoption of the decision on his resignation at a plenary session of the Verkhovna Rada of Ukraine. Adoption by the Verkhovna Rada of Ukraine of the decision on the resignation of the Prime Minister results in the dismissal of the entire Government (part 4 of the same article of the Law).

If the Verkhovna Rada had decided to dismiss the Prime Minister, he would have been released from the date of such a decision. Volodymyr Groysman’s government would have fulfilled its powers until the launch of the new Government, but without him. In this situation, the Prime Minister’s powers would have been performed, for example, by the First Vice Prime Minister. All members of the Government, which would have been dismissed, as provided for in part 4 of Art. 17 of the Law “On the Cabinet of Ministers of Ukraine”, would be released from their positions with the commencement of work of the newly formed Cabinet of Ministers of Ukraine.

If we consider also the political content of the Prime Minister’s statement in addition to legal aspects, in view of the prospect of early elections, then, according to Ihor Koliushko, it is fully justified and could contribute to further political career of Volodymyr Groysman.

The Government keeps reducing the possibilities for preserving an internal passport in the form of a book

The Cabinet of Ministers of Ukraine registered a draft law proposing to shorten the list of conditions under which it is possible to preserve the old internal passport.

On May 17, the governmental draft law “On the passport of a citizen of Ukraine in the form of a book” (under the registration number 10311) appeared on the website of the Verkhovna Rada of Ukraine. It follows from its content that the Government decided to accelerate the process of transition of Ukrainian citizens from the internal passport in the form of a book to a passport in the form of a card (ID-cards, as media call them). If the draft law is approved, the range of possibilities for preserving the old passport will be further narrowed.

It should be reminded that from October 5, 2018, the Government has already narrowed down the list of conditions under which one can leave the old internal passport. So, when a person turns 25 or 45 years old, she/he has only one month to “extend the life” of a book passport, sticking a photo there. If this deadline is broken, then the person is obliged to get an ID-card. However, now the Government plans to cancel this opportunity. Therefore, the draft law stipulates that a book passport will only be valid until the entry into force of the law (if approved) and only under certain conditions. So, when a person turns 25 or 45 years old, he/she has to timely get the photo sticked in after reaching this age. That is, in case of adoption of this draft law, a book passport can only remain for those who have reached 45 years and have timely adhered the photo, for citizens under the age of 25 – only until reaching this age. Citizens above 25 years old will be able to keep their passport only until they reach the age of 45 years.

In our opinion, in today’s conditions, such a compulsion to switch to the new model passport is very controversial. The government should first solve the problems encountered by users of the new model passport (in card form). In particular, it is necessary:

•  to apply information about the place of residence on the plastic surface of the ID-card. The absence of this information makes citizens request an A4 size paper reference and keep this uncomfortable piece of paper with them;
•  to cancel the mandatory chip (BEN) in the ID-card. This document is not required for visa-free travel to the EU. There are other forms of electronic identification (Bank-ID, mobile-ID, etc.). The chip leads to an increase in price of this document and restriction of points of access for passport services;
•  at the level of the law, to clearly identify and optimize the list of documents required for the issuance of this document (as well as for the passport);
•  in the law, to consolidate clear, transparent amounts of fees for all passport services, so that citizens are not faced with their sudden increase and illegal charges.

So, until these problems are resolved, citizens should not be forced to switch to a new passport against their will.

“The government first has to pay attention to the numerous problems in the passport area, and only then to force the citizens to exchange old passports for new ones. At present, citizens have to carry inconvenient paper references about “place of residence”, overpay for a chip on a card that is currently practically not used by anyone at all, and also have to look in the by-laws for the list of documents for obtaining passport services. This must be corrected immediately. The key role here should be played by the Ministry of Internal Affairs and the State Migration Service”, – said the expert Yevhen Shkolnyi.

Some judges of the Supreme Court were appointed by the President contrary to the Constitution of Ukraine

On May 7, President of Ukraine Petro Poroshenko appointed 75 judges of the Supreme Court, of which there are 51 judges, 14 academicians, 7 lawyers, and 3 persons with a combined experience.

At the same time, the Constitution of Ukraine, as amended in 2016, gives the President the authority to appoint a judge only once. According to the transitional provisions, last year, the President has lost the authority to transfer judges from one position to another. The second appointment of current judges to the position of a judge contradicts the Constitution, as these persons are already in the position of judge and took an oath. The High Council of Justice is the only body, which is authorized to transfer to the positions of judges of the Supreme Court the winners of the competition from among the effective judges.

New appointments in the High Council of Justice

On May 13, President of Ukraine Petro Poroshenko appointed M. Isakov and А. Vasylenko as members of the High Council for Justice. The circumstances related to this appointment indicate an attempt to preserve the influence on the key authority in the system of judiciary governance.

According to the Law, the President shall appoint members of the HCJ based on the results of the competitive selection. On March 11, the President signed a decree defining the procedure for conducting the competition.

On April 22, the court prohibited the selection committee to identify the candidates that were recommended for appointment. However, on May 8, the President made amendments to his decree providing that if the committee is unable to identify the candidates that are recommended for appointment, then all candidates for which a special examination is being conducted shall be considered recommended. This allowed the President, contrary to the court injunction and without a competition, to fill his quota in the HCJ.

In the opinion of Maksym Sereda, the CPLR expert, “the appointment of new members in a political way testifies to the fact that the key body in the system of judiciary governance remains primarily a political instrument. Under such conditions, it is not capable of ensuring the independence of the judicial system.”

Dispute over the terms of office of the HQCJ members has moved to the judicial and political dimension

As previously reported by the CPLR, there is a legal uncertainty as to the terms of office of the members of the High Qualifications Commission of Judges appointed in 2014.

On May 15, the District Administrative Court of Kyiv ordered a law enforcement action to prohibit S. Koziakov from fulfilling the powers of a member of the HQCJ and by its decision established that his powers of a HQCJ member terminated on October 25, 2018, on the basis of a four-year term of office. On the same day, the same court, but in another case, ordered to include S. Ostapets in the commission instead of S. Shchotka, whose term of office allegedly expired.

The HQCJ responded to these decisions by a statement: “Documents available in the Commission indicate otherwise”, referring to court decisions, which concluded on the six-year term of powers of the HQCJ members appointed in 2014.

None of the above-mentioned court decisions has come into force, except for orders to enforce a lawsuit, which must be executed immediately. According to these orders, enforcement proceedings have been opened.

Roman Kuibida, the CPLR expert said: “The practice of enforcing lawsuits through the inclusion of a new member of the HQCJ is unusual and may lead to illegitimacy of procedures with the participation of this new member, if the court subsequently finds his/her lack of authority. Enforcing a lawsuit in this way is of a manipulative nature and indicates the politicization of the court’s work.”

The conflict of laws regulating the term of office of individual members of the HQCJ, as well as numerous litigation cases, create risks for the functioning of the High Anticorruption and Supreme Courts. In the event that the courts conclude that the powers of individual HQCJ members expired in 2018, the legitimacy of the procedures completed with their participation may be in jeopardy.

The Law on Improving the Activities of the State Bureau of Investigations has been approved

On May 17, the Verkhovna Rada of Ukraine adopted in general, and on May 18, the President of Ukraine, Petro Poroshenko, signed the Law (draft law No. 5395-d), which allows the State Bureau of Investigations to form its own operational units, in particular on operational and technical activities and internal security.

The SBI posted an announcement on the competition for the respective positions in the operational units immediately after the Law came into force.

However, the adopted law contains a controversial provision: special titles are introduced for the SBI officials, but there is no defined list of positions that require the assignment of these titles. In other words, the decision making on this issue remains at the discretion of the Director of the SBI and his deputies. It should be reminded that initially the SBI was planned as an exclusively “civil” body.

The CPLR experts are of the opinion that the leadership of the SBI should establish that special titles to be assigned only to employees of operational and technical units and personal security units.

The President approved the symbols of the State Bureau of Investigations

On May 19, President of Ukraine Petro Poroshenko issued a decree approving the symbols of the State Bureau of Investigations. Although the SBI is using the symbols, which were approved by the Head of State, for over a year.

At the same time, neither the Constitution of Ukraine nor the Law “On the State Bureau of Investigations” does not grant the President powers to resolve the issues of the SBI activities by his decrees.

It should be reminded that earlier, President Petro Poroshenko also approved the symbols of the prosecutor’s office in contradiction to the Constitution.

Receipt of applications from candidates to the positions of prosecutors in the local prosecutor's office started for the first time

Qualifications Disciplinary Commission of Prosecutors began to receive applications from candidates for the position of prosecutor in the local prosecutor’s offices.

Applications are accepted from candidates who had already passed a special one-year training at the National Academy of Prosecutors of Ukraine and successfully passed the qualification exam. Currently, there are 248 potential candidates.

This is the first competitive selection to the prosecutor’s office, which takes place in accordance with the Law “On the Prosecutor’s Office” dated 2014.

However, this number of new prosecutors is not sufficient, since, according to the General Prosecutor’s Office of Ukraine, in 2018, 307 prosecutors resigned voluntary, and another 33 prosecutors were dismissed on the basis of the results of the consideration of disciplinary proceedings by the QDCP.

High Anti-Corruption Court will begin its work on September 5, 2019

In June 2018, the Verkhovna Rada of Ukraine adopted the Laws “On the High Anticorruption Court” and “On the Establishment of the High Anticorruption Court”, through which the High Anticorruption Court was created in Ukraine. However, before this court becomes actually operational, a number of mandatory procedures must take place. Thus, from August 2018 to March 2019, a competitive selection of candidates for the positions of the HAC judges continued. On March 18, the High Council of Justice submitted an application to the President of Ukraine on the appointment of judges, and on April 11, the President issued decrees no. 128/2019 and 129/2019 thereby appointing the HAC judges.

On May 7, the first congress of the HAC judges took place, when the chairman was elected and the date of commencement of the court’s operation was determined. Olena Tanasevych, the judge of the first instance, was elected the chairman of the HAC, and Yevhen Kruk became her deputy. In addition, on the same day, the congress of judges of the HAC ruled on the date of the commencement of the court operation – September 5, 2019.

According to the CPLR experts, the position of the congress of the HAC judges on this issue is balanced and well-grounded, and they have chosen a correct date for their commencement, since as of May 7, 2019, a number of issues remain unresolved, in particular, on the selection of employees of the apparatus, the provision of court’s premises for the work of judges and employees of the apparatus, technical equipment of such premises, registration of permission to conduct a court’s activity related to access to state secrets, registration of employees’ access to the state secrets, etc.

Therefore, in order for the HAC to start its operation on time, the following actions should be taken as soon as possible:

1.  the HAC should be provided with additional (or another, but much larger) premised that will accommodate and ensure the proper functioning of the HAC chambers for the administration of justice in the first instance;
2.  repairs need to be done in all buildings and constructions, which will accommodate judges and staff of the HAC, and where the administration of justice will be performed;
3.  office furniture, computer, multimedia, copying and other equipment and devices necessary for the proper functioning of the court should be purchased;
4.  ompetitive selection needs to be held and the majority of positions in the HAC apparatus should be filled;
5.  all the permits and certificates necessary for obtaining access by the judges of the HAC to classified materials and authorizations to hold secret investigatory actions should be secured;
6.  operative and efficient document circulation system should be implemented, which will not only ensure the automated distribution of criminal proceedings, the most convenient and operational exchange of documents and information, but will also exclude any possibility of information leakage about the activities of the HAC and its decisions;
7.  all necessary measures related to the protection of HAC premises, judges and their homes should be taken.

In addition, the judges of HAC are advised to use their annual leave before September 5 (in particular, devoting them to solving personal issues of everyday character).

Mykola Khavroniuk, Director for Scientific Development of the CPLR, said: “Despite our strong wish for the HAC to start operating in June or July 2019, such a decision would be extremely irresponsible and wrong. The matter is that from the first day of the official start of the HAC operation, numerous appeals will be filed to the investigators of the court in all criminal proceedings under the court’s jurisdiction; additionally, there will be a long “queue” from several thousand criminal proceedings that will be passed to the HAC ​​by other courts. The HAC should be ready for all the above-mentioned.“

On the jurisdiction of the High Anticorruption Court over criminal proceedings

Following the adoption by the Verkhovna Rada of Ukraine of the Law “On the High Anticorruption Court”, the appointment of judges of this court and the determination of the date of commencement of its work, one of the most outstanding issues remains regarding the determination of criminal proceedings falling under its jurisdiction.

Through the Final and Transitional Provisions of the Law “On the High Anticorruption Court”, the Criminal Procedure Code of Ukraine is supplemented by Article 33-1, part one of which reads as follows: “The High Anticorruption Court shall prosecute for criminal investigations concerning corruption crimes provided for in the footnote to Article 45 of the Criminal Code of Ukraine, Articles 206-2, 209, 211, 366-1 of the Criminal Code of Ukraine, if at least one of the conditions provided for in paragraphs 1-3 of part five of Article 216 of the Criminal Procedural Code of Ukraine is in place.”

Consequently, the footnote to Article 45 of the Criminal Code states that corruption crimes are:

a) crimes provided for in Articles 191, 262, 308, 312, 313, 320, 357, 410 of the Criminal Code, in the case of their commission by abuse of office;

b) crimes provided for in Articles 210, 354, 364, 364-1, 365-2, 368-369-2 of the Criminal Code.

Paragraphs 1-3 of part 5 of Article 216 of the Criminal Procedure Code stipulate that NABU detectives carry out pre-trial investigation of certain criminal offenses upon the presence of one of the following conditions:

1) the crime is committed by a special person (the President of Ukraine whose powers have been terminated, a people’s deputy of Ukraine, the Prime Minister of Ukraine, a member of the CMU, etc.);

2) the size of the subject matter of the crime or the damage caused;

3) the crime provided for in Art. 369, part 1 of Art. 369-2 of the Criminal Code is committed against an official identified in Part 4 of Art. 18 of the Criminal Code or p.1 part 5 of Art. 216 of the Criminal Procedure Code.

Experts of the CPLR analyzed the Final and Transitional provisions of the Law “On the High Anticorruption Court” and drafted a conclusion on the jurisdiction of criminal proceedings to the HAC. According to the conclusion, the HAC’s jurisdiction covers only the criminal proceedings, for which the pre-trial investigation was carried out by the NABU detectives in accordance with the requirements of Part 5 of Art. 216 of the Criminal Procedure Code. Going beyond this scope of jurisdiction, which is unquestionable, would contradict the general principles of criminal proceedings and the requirements of Art. 6 of the ECHR.

In addition, the CPLR experts are of the opinion that in order to eliminate any doubt about the jurisdiction of the HAC, it would be important to consider legislative changes to Part 1 of Article 33-1 of the CPC, footnotes to Art. 45 of the CC, as well as to Art. 216 of the CPC.

Full text of the conclusion is available on the CPLR at: http://bit.ly/2vAyRK5

Training on submitting a complaint against the prosecutor was held in Odessa

Importance of adopting the draft law "On the Administrative Procedure" was discussed in Dnipro

On May 22, scientists, representatives of the regional state administration, city councils and the CPASs gathered in Dnipro to get acquainted with the rules for the adoption and implementation of administrative acts, which are envisaged by the draft law No. 9456 “On the Administrative Procedure”.

According to experts, the greatest value of the law is clear and unified rules for the adoption of administrative acts that promote the high-quality public services receipt by citizens and businesses and protect them from the arbitrariness of unfair officials.

What do you think of protecting public order in the community?

The Centre of Policy and Legal Reform with the participation of the UPLAN Network is conducting a survey that will help identify the problems of public participation in the protection of public order and the activities of public formations that assist law enforcement agencies in carrying out their tasks.

Questionnaire is available at the link.

The deadline for completion is June 17, 2019.

Topical materials from UPLAN Network experts

•  “Speedometer of Reforms: Going to Europe at maximum speed?” The CPLR experts presented the original monitoring project “Speedometer of Reforms” specifically for the UPLAN portal.
•  “Analysis of judicial reform. Who is making a research on the integrity of judges?” Roman Smaliuk, expert of the CPLR, told about the role of regional think tanks and independent experts in judicial reform.
•  “What are the prospects for self-organization of the population in Dnipro?” Interview with Roman Serdiuk, director of the NGO “Institute for Reforms and Innovations”, expert of the UPLAN Network.
•  “Along or across? How will public councils continue to work in Ukraine?” Speculations of Andrii Krupnyk, director of the Institute of Social Technologies, the regional coordinator of the UPLAN Network.
•  “The Future of Constitutional Reform: will the Institute of Prefects work in Ukraine?” This was discussed by Oleksandra Deineko and Anna Honchar, the regional experts of the Network, representatives of “ExpertiZA Reform” organization.

Follow the UPLAN Network news

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