The monthly newsletter of the Centre of Policy and Legal Reform is devoted to the analysis of the state reform, in particular in the areas of parliamentarism and elections, constitutional and judicial reform, civil service, anti-corruption, etc.
The purpose of the publication is to raise the awareness among citizens and to strengthen their ability to influence the state authorities in order to accelerate democratic reforms and establish proper governance in Ukraine.
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Analysis of developments in the Constitution – concerning the weakening of parliamentarism, the abolition of the bar monopoly and the holding of a constitutional seminar
Constitutional changes of the new authorities
On August 29, 2019, the first working day of the new Parliament, the President of Ukraine initiated 8 separate draft laws on amending the Constitution of Ukraine, which can be divided into three blocks. As early as September 3, 2019, the Verkhovna Rada approved one of them and amended the Constitution as regards the constitutional determination of parliamentary immunity. As a result, starting from January 1, 2020, people’s deputies will not have parliamentary immunity in Ukraine (373 people’s deputies of Ukraine voted in favor of this decision).
I. Weakening of parliamentarism by disrupting the status of the People’s Deputy of Ukraine and broadening the powers of the President
2. Draft Law No. 1014 “On Amending Article 106 of the Constitution of Ukraine (on establishing the powers of the President of Ukraine to create independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine and the Director of the State Bureau of Investigation)”. Detailed analytics.
3. Draft Law No. 1017 “On Amending Articles 76 and 77 of the Constitution of Ukraine (on the reduction of the constitutional composition of the Verkhovna Rada of Ukraine and consolidation of the proportional electoral system) ”. Detailed analytics.
Given the tendency of authorities for authoritarianism and the extension of the President’s powers as a result of implementing unconstitutional norms in Ukraine, the expert environment recommends balancing the branches of power by strengthening parliamentarism and clear delineation of executive powers between the President and the Government.
Instead, the proposed changes are aimed at weakening parliamentarism through the status of a people’s deputy. Liquidation of the institute of parliamentary immunity can lead to a disturbance of the balance of branches of power, as the mechanism of checks and balances, which protects the legislative power against the encroachments of the executive power, disappears.
It is proposed to establish a number of new bodies appointed by the President – “independent regulators that carry out state regulation, monitoring and control over the activity of economic entities in specific areas.” First, such a broad definition of bodies that the President can create is contrary to constitutional theory. Second, it may actually allow for the formation of presidential control over economic activities that bears the threat of excessive interference of the state with economic activity.
Given the absence of an independent judicial system in Ukraine, the introduction of additional grounds for losing the mandate of the People’s Deputy of Ukraine poses risks of pressure on parliamentarians, as well as mechanisms of “reprisal” against the opposition people’s deputies.
II. Abolition of the lawyer’s monopoly
The draft law proposes to abolish general lawyer’s monopoly, which was introduced in 2016 in the framework of the constitutional reform of the judicial system, and to retain the lawyer’s monopoly solely for the protection of individuals against criminal charges.
Introduction of the monopoly was motivated by the need to increase the level of court representation services through the establishment of certain requirements for access to the legal profession, the professional level and the availability of preventive mechanisms against malpractice by lawyers.
As a result of the 2016 year changes, the cost of court representation services has predictably increased. It seems that this very circumstance was a prerequisite for introducing such a draft amendment to the Constitution of Ukraine by the President of Ukraine.
Experts of the CPLR did not support the introduction of a lawyer’s monopoly during the judicial reform in 2016 due to the anticipated problems of providing legal assistance to a person due to the increase in the cost of lawyer services, and the lack of lawyers in rural areas.
III. Contentless and declarative.
1. Draft Law No. 1016 on Amending Articles 85 and 101 of the Constitution of Ukraine (on the Commissioners of the Verkhovna Rada of Ukraine). Detailed analytics.
The proposed changes from this block do not introduce any new rules of regulation, but are merely declarative. For example, the constitutional and legal status of the Commissioners of the Verkhovna Rada of Ukraine for compliance with the Constitution of Ukraine and laws in certain areas is enshrined without any powers being assigned to them and without determining the procedure for interaction of the Commissioner for Human Rights with the “new” Commissioners.
Consolidation in the Constitution of the Parliament’s right to create advisory, consultative and other supplementary bodies of the Verkhovna Rada of Ukraine within the limits of the funds provided in the State Budget of Ukraine for exercising its powers is senseless. The Parliament previously created bodies corresponding to the characteristics of “advisory, consultative and other supplementary bodies” and they still exist today.
In addition, it is meaningless to delegate the right of legislative initiative to the people of Ukraine without the possibility of exercising it due to the lack of a certain procedure for the participation of the “people” in the legislative initiative and without detailing the legal status of such an unclear actor as the people of Ukraine.
Parliamentary Constitutional Seminar Took Place
On September 23, 2019, the Centre of Policy and Legal Reform, in cooperation with the USAID RADA Program, the Venice Commission and the International Institute for Democracy and Electoral Assistance (International IDEA), held a Parliamentary Constitutional Seminar and first publicly discussed the constitutional initiatives of the President Volodymyr Zelensky.
The first parliamentary constitutional seminar of the planned series was dedicated to the procedure of amending the Constitution and the Presidential draft laws already submitted to the Verkhovna Rada of Ukraine. Representatives of all parliamentary factions, Ukrainian and international experts as well as professional organizations were invited to the dialogue.
Head of the CPLR Board Ihor Koliushko and the CPLR Board Member Julia Kyrychenko also attended the event.
Head of the Board Ihor Koliushko emphasized: “Constitutional changes should be based on a comprehensive vision of constitutional reform; the society must first see the concept of constitutional changes. Amending the Constitution by seven separate draft laws introduced at the same time is a mistake.”
The next constitutional seminar will be devoted to early termination of powers of the People’s Deputy of Ukraine and will be held on October 16, 2019.
On August 29, a new Government headed by the Prime Minister Oleksii Goncharuk was formed. In this context, the list of ministries has been modified. On September 19, the Verkhovna Rada of Ukraine adopted the Law “On Amending Certain Laws of Ukraine on Restart of the Executive Power”, which substantially amended the Law on Civil Service. Guided by these amendments, the Government launched a massive staff clean-up in the management of the central executive authorities. In addition, in September, the Government was working on its Program of activities.
Beginning of the new Government
Prior to the formation of the new Government, 19 ministries were operating in Ukraine. Now they are 15. The new composition of the Government and the whole system of executive authorities will work in the conditions of amendments made to the laws “On Civil Service”, “On the Cabinet of Ministers of Ukraine”, “On Central Executive Authorities”.
The Ministry of Regional Development, Construction, Housing and Communal Services has been renamed into the Ministry of Development of Communities and Territories of Ukraine; the Ministry of Economic Development and Trade – into the Ministry of Economic Development, Trade and Agriculture of Ukraine (it was merged with the reorganized Ministry of Agrarian Policy and Food); the Ministry of Ecology and Natural Resources has changed into Ministry of Energy and Environmental Protection of Ukraine (in was merged with reorganized Ministry of Energy and Coal Industry); the Ministry of Veterans’ Affairs – into the Ministry of Veterans’ Affairs, Temporarily Occupied Territories and Internally Displaced Persons of Ukraine (it was merged with the reorganized Ministry of Temporarily Occupied Territories and Internally Displaced Persons).
The Ministry of Culture and the Ministry of Youth and Sports were liquidated; the Ministry of Information Policy was reorganized; instead, the Ministry of Culture, Youth and Sports was established. The Ministry of Digital Transformation of Ukraine was established by reorganizing the State Agency for Electronic Governance.
The main changes of the Law on the Restart of Executive Power relate to the civil service institution: the procedure for admission to civil service and dismissal, disciplinary liability of civil servants, protection of their rights, remuneration, list of powers of the National Agency for Civil Service, the activities of the Commission on Senior Civil Service Corps. Introduction of a civil service contract is the innovation of the Law.
The CPLR experts support the approach of creating by the new Government of a number of ministries that will allow the implementation of its Program of Activities. Foreign experience shows that different countries may have different number of ministries. The main thing is that all areas of public policy are within the sphere of influence of the Government. However, consolidation of a large number of areas in one ministry can reduce the effectiveness of its performance in each area.
The need to amend the Civil Service Law arose following the generalization of the three-year practice of its application. For more than a year, the NACS Working Group has been working on the relevant draft law. Some of these proposals are currently reflected in the Civil Service Law. For example, the approach to remuneration of civil servants has been changed. Although the wording of this article is not perfect, its approach will help to improve the legal regulation of the issue.
However, the Civil Service Law also includes amendments that were not previously discussed in the expert environment and relate to changes in the political leadership of the state. This applies, for example, to the institution of the civil service contract and the additional grounds for termination of the civil service of individual civil servants upon the initiative of the subject of appointment.
The subject of appointment may decide to dismiss a Category A civil servant (Senior Civil Service Corps) on its own initiative, upon the submission of the Prime Minister or the relevant Minister or Head of the CEB within four months of the appointment of the Prime Minister of Ukraine or the relevant Minister or head of the CEB, with the simultaneous removal of such a civil servant from the staff list of the relevant executive authority.
In our opinion, this violates the principles of the civil service stability, the independence of the personal composition of the civil service from changes in the political leadership of the state, nullifies those progressive achievements that have already taken place in the civil service in the last 3 years. The statement on the “removal of a civil servant from the staff list of the relevant executive authority” also raises questions.
In accordance with these changes to the Civil Service Law, the CEB executives appointed on the basis of the competitive selection, have been dismissed. For example, such a dismissal has been applied to the Head of the State Architecture and Construction Inspectorate of Ukraine Sergii Kuzmin and the Head of the State Service of Geology and Subsoil Resources of Ukraine Oleg Kyrylyuk.
In addition, State Secretaries of the ministries may be dismissed in accordance with legislative changes. For example, Oleksii Perevezentsv has already been dismissed from his post as the State Secretary of the Ministry of Economic Development and Trade of Ukraine. This contradicts the main purpose of the State Secretary’s institution – to preserve the institutional memory of the ministry, to assist the newly appointed minister to get acquainted with all issues of the ministry’s work, to organize the professional work of the ministry’s apparatus.
The Verkhovna Rada of Ukraine has registered and included in the agenda the draft law No. 1067 on accelerating deregulation, which can negate a number of achievements of the administrative services system reform
Draft law No. 1067 on deregulation threatens the administrative reform achievements
The Verkhovna Rada of Ukraine has registered and included in the agenda the draft law No. 1067 on accelerating deregulation, which threatens the reform of the system of providing administrative services.
On August 29, 2019, the people’s deputies from “Sluha Narody” faction registered in the Verkhovna Rada of Ukraine the draft law No.1067. As early as September 10, it was included in the agenda. The draft law aims to promote deregulation, and therefore affects the area of administrative services. That is why it provides for a number of amendments to the Law of Ukraine “On Administrative Services”. In particular, the title of administrative service and the grounds for receiving it, the entity providing the administrative service and its authority to provide the administrative service, as well as the list and requirements for documents necessary for obtaining the administrative service shall be determined not by the law, but by the Cabinet of Ministers of Ukraine, that is, at the level of government by-laws. This threatens the reform of the administrative services system, which is one of the most successful in Ukraine.
The CPLR believes that the proposed changes are unacceptable for the following reasons:
1. Determining the title of an administrative service and the grounds for receiving it at the level of by-laws carries the risk of groundless splitting of one administrative service into several separate ones by the Government. In Ukraine, the practice of approving so-called “lists of services” by by-laws has already existed and was aimed at increasing the number of services and earning money from citizens. Norms that carry such risks, on the contrary, contradict the process of deregulation. That is why the Law “On Administrative Services” stipulated that their titles and grounds for receiving should be determined by laws.
2. Provision of the draft law on the definition of the entities providing administrative services and their authority to provide such services by the Government at a secondary level is contrary to the Constitution of Ukraine. Thus, according to paragraph 2 of Article 6 of the Constitution, legislative, executive and judicial authorities exercise their powers within the limits established by this Constitution and in accordance with the laws of Ukraine. Therefore, the Government cannot by its by-laws delegate other powers to other authorities. This provision of the draft law also threatens to interfere with local self-government.
3. Definition of the list and the requirements for the documents necessary for obtaining administrative services by the by-laws of the Cabinet of Ministers is the most negative aspect of this draft law. On the one hand, this mechanism can be used for deregulation. On the other hand, it can also damage deregulation and cause additional bureaucracy for citizens and businesses. Regardless of the intentions of the incumbent Government, it is important to keep in mind that governments will change. However, the regulation does not have the proper level of transparency and stability, as well as the consideration of the interests of citizens. It is true that today some lists of documents for obtaining even basic (most popular) administrative services (for example, for passport) are defined by the by-laws. This often results in citizens being asked for additional documents that are not provided for anywhere. Sometimes the lists of documents for receiving administrative services are determined by several by-laws. Citizens have difficulties finding them and getting acquainted with their contents. Moreover, they can even contradict each other. In addition, the by-laws can be quickly and non-transparently supplemented with new requirements and documents for obtaining administrative services. Therefore, citizens will have minimal protection against the risk of arbitrariness.
“Amendments to the Law on Administrative Services proposed by the draft law No.1067 do not guarantee deregulation. On the contrary, they carry the risks of arbitrariness in practice, as well as violation of the Constitution of Ukraine, interference with the sphere of local self-government. Ukrainian realities show that determining the titles of administrative services, identifying the entities providing them and lists of documents for such services by by-laws lead to an increase in the level of corruption in this area, an increase in the number of unnecessary “services” for the citizens and profit-making on them. Therefore, this part of the draft law needs to be rejected, or more balanced solutions should be sought,” says the CPLR expert Yevhen Shkolnyi.
The CPLR experts have identified serious deficiencies in the presidential draft law on judicial governance reform. Staff changes have occurred at the High Council of Justice.
The CPLR experts analyzed the presidential draft law on reforming judicial governance bodies
12 вересня Верховна Рада України ухвалила в першому читанні законопроект №1008 «Про внесення змін до деяких законів України щодо діяльності органів суддівського врядування», який передбачає:
- розпуск чинної Вищої кваліфікаційної комісії суддів та формування нового складу за новим принципом;
- зменшення кількості членів Комісії – з 16 до 12;
- створення Комісії з питань доброчесності та етики, яка контролюватиме доброчесність членів Вищої ради правосуддя та ВККС та може ініціювати їх звільнення;
- скорочення строку дисциплінарного провадження (до 30 днів з моменту отримання скарги) та надання права ініціювати провадження членам ВРП та Комісії з питань доброчесності та етики;
- скорочення чисельності суддів Верховного Суду – з максимальних 200 до 100 суддів;
- зменшення винагороди членам Вищої ради правосуддя, ВККС та суддям Верховного Суду;
- люстрацію керівників ВККС і Державної судової адміністрації України.
On September 12, the Verkhovna Rada of Ukraine approved in the first reading the draft law No.1008 “On Amending Certain Laws of Ukraine Regarding the Activity of Judicial Governance Bodies”, which provides for:
- dissolution of the existing High Qualifications Commission of Judges and the formation of a new composition based on a new principle;
- reducing the number of the Commission members from 16 to 12;
- establishment of the Commission on Integrity and Ethics, which will monitor the integrity of the members of the High Council of Justice and the HQCJ and may initiate their dismissal;
- shortening the timeframe for disciplinary proceedings (to 30 days from the date of receipt of the complaint) and giving the right to initiate proceedings to members of the HCJ and the Commission on Integrity and Ethics;
- reducing the number of the Supreme Court judges – from a maximum of 200 to 100 judges;
- reducing the remuneration for the members of the High Council of Justice, the HQCJ, and the judges of the Supreme Court;
- lustration of the heads of the HQCJ and the State Judicial Administration of Ukraine.
The CPLR experts drafted an Opinion to the draft law and supported the re-launch of the HQCJ with the involvement of international experts. However, they pointed to numerous shortcomings of the draft law, including:
- maintaining the existing composition of the HCJ, which also discredited itself by acting in the interests of dishonest judges and political forces, while expanding its powers, including with respect to the new HQCJ;
- difficulty for the agents of change to become members of the Commission because of the requirements that only representatives of the system to be reformed can enter this body;
- deliberate inefficiency of the Commission on Integrity and Ethics;
- too short timeframe for disciplinary proceedings, which allows judges to avoid liability;
- reduction of the Supreme Court in the absence of predefined criteria can be used for political purposes to get rid of disloyal judges.
According to the CPLR expert Roman Kuybida, “the draft law needs thorough revision, otherwise it poses serious threats to strengthen the political dependence of judges and the manageability of judicial corps.”
Judicial governance: the experience of Ukraine, Georgia and Moldova
On September 13, the CPLR in cooperation with the DEJURE Foundation in Odessa held a conference on Judicial Governance in the Eastern Partnership Countries: Ukraine, Georgia, Moldova. Representatives of the judicial governance bodies, judges, Ukrainian and international experts attended the event.
Participants focused on discussing judicial reforms in Ukraine, Georgia and Moldova in line with the Eastern Partnership goals by 2020, and highlighted the changes proposed in the draft law No.1008 “On Amending Certain Laws of Ukraine on the Activity of Judicial Governance Bodies”.
At the conference the experts also presented two studies: ”20 Deliverables of Eastern Partnership by 2020: Ukraine’s Progress in Justice”, which, in addition to analyzing the current state of implementation of the goals, provided recommendations for their achievement, and ”Judicial (In)Dependence: Judicial Governance Lessons for the Eastern Partnership Countries”, which analyzed the results of the activities of the judicial governance bodies in Moldova, Georgia and Ukraine and provided recommendations on the composition of the judicial governance bodies in these countries.
The event was supported by the European Union and the International Renaissance Foundation as part of the grant component of the Civil Synergy project, sponsored by the Ukrainian National Platform of the Eastern Partnership Civil Society Forum.
Personnel changes in the HCJ
On September 24, the High Council of Justice terminated the authority of the Chairman of the HCJ, V. Govorukha, on the basis of his application and elected a new chairman, A. Ovsiyenko. As reported, the journalists recorded the visit of A. Ovsiyenko and V. Govorukha to the Office of the President of Ukraine on the eve of consideration by the HCJ of the issues concerning the removal of judges, who, according to the investigation, tried to interfere with the conduct of the qualification assessment.
On September 30, the President using his quota nominated O. Blazhivska as the HCJ member; she was one of the two winners of the competition, to which the public organizations expressed comments. In particular, it was revealed that O. Blazhivska was appointed judge immediately after her father’s appointment as Deputy Prosecutor General of Ukraine, although before that she worked as an assistant notary. There have also been numerous questions raised by the public about the property of the judge and her family members.
Although the selection committee recommended six candidates for two vacant positions of the HCJ members, the President has not yet appointed another HCJ member.
Attempts to enhance the role of the HCJ in the judicial system, the appointment by the President to the Council of a person to whom the public has expressed comments, and the replacement of the HCJ Chairman with a person who has been seen in having connections with the Office of the President, may indicate an attempt to strengthen political control over the activities of this judicial governance body.
The High Anticorruption Court commenced its work on September 5, and it is currently conducting trial in the first criminal proceedings. This court is expected to impartially and objectively administer justice in corruption and corruption-related cases.
The Verkhovna Rada is considering presidential legislative initiatives
People’s Deputies are considering the draft laws submitted by President Zelensky to address problems in the area of preventing and combating corruption.
At the end of August, several draft laws on anti-corruption policy were submitted to the Verkhovna Rada, including initiatives on the clarification of the jurisdiction of the High Anticorruption Court, rebooting the National Anti-Corruption Agency, protection of the exposers of corruption, renewal of criminal responsibility for unlawful enrichment and introduction of civil confiscation of unjustified assets of public servants, etc. The first of these draft laws, which concerned the jurisdiction of the High Anticorruption Court, had already been passed and entered into force, eliminating the risk of excessive burden on the newly created court. In the beginning of October, the law on the relaunch of the NACP was approved. The third draft law has been approved in the first reading and is being prepared for the second reading in the Verkhovna Rada Committee on Anti-Corruption Policy.
As regards the proposed legislative initiatives, the CPLR experts in their conclusions provided assessment and recommendations in relation to most of them, in particular on how these draft laws could be improved before the second reading to avoid potential problems in implementing the new legislative provisions.
The CPLR experts prepared reports on criminal statistics in Ukraine and on judicial practice in cases of administrative offenses related to corruption
In September, experts from the Centre of Policy and Legal Reform finalized a report on criminal statistics in Ukraine, which was developed using a special methodology. The report analyzes the international statistical standards of the UN and the EU, the current practice of collecting and releasing relevant statistics, formulating conclusions and providing recommendations on how the criminal statistics system in Ukraine can be improved. The report can be viewed on the CPLR website via the link.
In addition, this month, a summarized report on the judicial practice in cases of administrative offenses related to corruption was completed. It analyzes a significant number of court decisions in relevant administrative offenses cases, identifies major challenges in ensuring the inevitability of punishment for such offenses, and provides suggestions for the elimination of these problems. This report has also been published on the CPLR website via the link.
Report on the Results of the Analysis of the Problem of Parliamentary Immunity in Ukraine
Kostiantyn Zadoya, Mykola Khavroniuk
The report provides recommendations on narrowing the content and scope of immunity (in the broadest sense) of the People’s Deputies of Ukraine in accordance with the recommendation of international institutions addressed to Ukraine, as well as the best world practices of parliamentary immunity regulation. The report was prepared with the support of the European Union.
Instruments for Strengthening Confidence in the Courts in Ukraine
Roman Kuybida, Maksym Sereda, Mykhailo Zhernakov.
The document analyzes the factors that affect the confidence in the courts in Ukraine, and provides recommendations on how to increase it, including in the light of international experience. The publication is supported by the Open Society Foundation.
20 deliverables of Eastern Partnership for 2020: Ukraine’s progress with the judiciary
The research analyzes implementation of the targets stipulated by p. 10 “Implementation of Key Reforms in the Area of Justice” of Priority II “Strengthening Institutions and Good Governance” of the document “Eastern Partnership – 20 Expected Deliverables by 2020: Focusing on Main Priorities and Real Results”. The publication is supported by the European Union and International Renaissance Foundation.
Consolidated judicial practice on administrative offenses related to corruption (Articles 172-4–172-9 of the Code of Ukraine on Administrative Offences)
The publication analyzes the judicial practice on administrative offences under Articles 172-4–17-2-9 of the Code of Ukraine on Administrative Offenses; identifies the main trends of the court consideration of cases on these offenses; determines procedural features and problematic aspects of the court consideration of cases on administrative offenses related to corruption; reveals factors explaining the high percentage of closed cases of investigated category. The publication is supported by the European Union.
Report on Criminal Statistics in Ukraine
Mykola Khavroniuk, Ruslan Shekhavtsov
The report was prepared on the basis of a specially developed methodology for comprehensive assessment of the current state of criminal statistics development in Ukraine through the lens of the statistical standards of the UN, European Union, as well as the need to ensure the receipt of objective information on criminal offenses, the activities of operational units of law enforcement agencies, pre-trial investigation bodies, prosecutors, judges, the National Agency for Prevention of Corruption, bodies that enforce criminal court decisions. The publication is supported by the European Union.
Assessment of Corruption Risks and Anti-corruption Programs in Executive Bodies: Current Status and Activities of the National Agency for the Prevention of Corruption in this area
Using a special methodology, the research analyzed 14 anti-corruption programs and, accordingly, the current state of assessment of corruption risks in executive bodies. The report was prepared with the support of the European Union.
- Parliamentary Constitutional Seminar (16 October, Kyiv)
- Discussion of the models of future administrative-territorial structure of sub-regional level of regions of Ukraine (dates to be specified, Lutsk, Rivne, Severodonetsk, Sumy, Chernihiv).