Political Points for 10–17 June 2019

The practice of blocking business and state structures through court decisions has become widespread

---

1. CPLR expert opinion

Court decisions on the enforcement of claims that create barriers in the activities of businesses and public authorities have become widespread. The use of courts to capture or destroy businesses was a common occurrence in the years 2000-2013 and was called “raidership”. Gradually, as a result of introducing changes in both legislation and judicial practice, the opportunities for such practices were reduced. Now this phenomenon has returned, but in addition to businesses, state bodies have become subject to raidership.

On May 24, Baryshivsky District Court of Kyiv Oblast, in order to secure the claim of a person whose flight was allegedly delayed, terminated the validity of the license for the air transportation of the low-cost company SkyUP.

A few days later, it became known that on June 11, the same Baryshivsky Court prohibited the first deputy Chairman of the National Bank of Ukraine to exercise her powers in a case on the recognition of inaccurate information.

Earlier, on May 15, the Kyiv Regional Administrative Court prohibited the Chairman of the High Qualifications Commission of Judges (hereinafter – the HQCJ, Commission) S. Kozyakov to exercise the powers of a Commission member, and, by another decision, ordered to include S. Ostapets, who was appointed instead of S. Shchotka, as a member of the HQCJ.

On May 27, the Suvorovsky District Court of Odesa having considered a civil case regarding the recognition of inaccurate information under the lawsuit of one person to his neighbor, prohibited the HQCJ to take any actions to conduct a qualification assessment. However, on May 29, the Odesa Court of Appeal terminated the effect of this ruling.

Instead, a new Supreme Court started playing political games on the other hand, by prohibiting the members of the Commission to evade exercising their powers in the first instance.

All decisions were taken as rulings to secure the claim. Unlike the decisions adopted as a result of the consideration of the whole case, the decisions on securing a claim can be taken without calling the parties and must be executed immediately and regardless of the fact of the appeal. Although it has a temporary effect – for the period of the proceedings – the consideration can be extended to as long as someone will benefit from the ruling.

All such decisions are the result of the dependence of judges on politicians and oligarchs.

2. Respective authorities counter-point/argument

Commenting on the situation with the suspension of the license of the SkyUp carrier, Minister of Infrastructure of Ukraine V. Omelyan said: “The district court has no competence to adopt such decisions, especially in the security part” and assured that the company will continue its work.

Regarding the reaction of the HQCJ to the decision of the District Administrative Court of Kyiv, it can be assumed that it disagreed with the court’s conclusions about the expiration of the term of office of S. Kozyakov and S. Shchotka, as on its web site there was a notice that: “the documents available to the Commission indicate otherwise”, which contained references to the decisions of the courts concluding that these members of the HQCJ have the six-year term of office. However, S. Kozyakov and S. Shchotka did not take part in the plenary sessions of June 12-13.

3. CPLR assessment of the authorities counter-point

–

4. Related legislation/instructions which require the authorities act in a certain manner

In accordance with Part 2 of Art. 149 of the Civil Procedure Code of Ukraine, securing of a claim is allowed both before bringing of the claim and at any stage of the consideration of the case, if the non-application of such measures can significantly impede or prevent the execution of a court decision or effective protection, or renewal of the claimant’s rights or interests that are contested or challenged, for protection of which he/she appealed or intends to appeal to the court. In addition to this ground, Part 2 of Art. 150 of the Code of Administrative Proceedings of Ukraine also provides that the securing of a claim is permissible if there are obvious signs of unlawfulness of a decision, action or omission of the subject of authority, and violation of the rights, freedoms or interests of the person who appealed to the court by such a decision, action or omission.

According to Part 3 of Art. 151 of the Code of Administrative Proceedings of Ukraine, it is inadmissible to secure a claim by imposing a prohibition on the HQCJ to take certain actions, suspend the decisions of the National Bank of Ukraine, as well as establish a prohibition or obligation for the National Bank of Ukraine to perform certain actions.

Obviously, the claimants and the courts have circumvented these legal restrictions through evident manipulation of the rules of jurisdiction (taking measures to secure a claim that are typical for administrative proceedings in a civil case) and arbitrability (adding as co-defendants of persons who have nothing to do with the case, at the location of the court).

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Restoration of raidership was made possible due to the non-implementation of the goals of judicial reform – the refinement of the judiciary corps almost did not take place. Prevalence of corruption and actual impunity for the court decisions allowed judges to go for such decisions.

In order to overcome these challenges in the short term, it is important to bring judges who have made such decisions to disciplinary and even criminal liability, in order to ensure the inevitability of punishment for such actions. In the medium term, it is necessary to improve the mechanisms for refining the judiciary corps.

High Qualifications Commission of Judges makes every effort to keep in the office the judges with negative conclusions from the Public Council of Integrity

---

1. CPLR expert opinion

On June 12, during the consideration of the decision of the HQCJ Board on judge I. Gryban, an incident occurred that could indicate that the HQCJ members had falsified the results of the qualification assessment. As the Public Council of Integrity (hereinafter referred to as the “PCI”) approved the conclusion on her non-conformity with the criteria of integrity and professional ethics, it would be possible to overcome this conclusion if at least 11 of the 16 members of the HQCJ would vote in favor of this decision.

On that day, 12 members of the HQCJ were present at the meeting. After considering the issue on the judge, the members of the HQCJ went to the consultative room and returned with a decision to announce a break. As it turned out, the break was announced due to the fact that the decision to confirm the ability to administer justice did not gain enough votes, as two members of the HQCJ voted against. This was stated both by the PCI, whose members witnessed a telephone conversation of one of the Commission members with the Chairman of the HQCJ, and by one of the Commission members, А. Kozlov, who left the meeting after the incident.

In accordance with the law, such a result of voting is the basis for making a recommendation to dismiss a judge from office. That is, the HQCJ deliberately manipulated the results of voting. This testifies that the Commission’s activities are aimed not at the actual refinement of the judiciary corps through the mechanism of qualification assessment, but at keeping of the judges questioned by the public, in their positions.

Such a statement is confirmed by the events, which happened on the following days. In particular, on June 13, the Commission postponed plenary consideration of issues concerning all judges with the conclusions of the PCI, substantiating this with the receipt of materials requiring additional study, in particular from the PCI. However, the chairman did not indicate what materials were received, whom they are referring to, and why the issues concerning all judges are postponed. The next day, the Commission without any explanations withdrew from the consideration the issue on supporting the decisions of the board in relation to all judges.

In the opinion of the CPLR experts, the Commission can not “collect” enough votes to overcome the PCI conclusion, since the powers of the three members of the HQCJ are questioned (the court has prohibited S. Kozyakov to exercise the powers of a HQCJ member, the Chairman of the State Judicial Administration of Ukraine appointed S. Ostapets to the position of a Commission member to replace S. Shchotka, and the Commissioner of the Verkhovna Rada of Ukraine for Human Rights appointed M. Syrosh to replace T. Veselska), another member of the Commission was appointed to the PCI, and A.Kozlov refused to participate in the plenary meetings. That is, there are only 11 members of the Commission left, and therefore the decision to confirm the judge’s ability to administer justice should be unanimous. Perhaps, because of the incident with judge I. Gryban, the members of the HQCJ decided not to take the risk.

In addition, on June 14, it became known that T. Lukash, a member of the Commission, filed an application on resignation, which was satisfied. That is, if A. Kozlov continues to “boycott” the plenary meetings of the Commission, and disputes over the powers of the three members of the HQCJ remain unresolved, it is unlikely that the Commission will be able to fully conduct the qualification assessment procedure.

2. Respective authorities counter-point/argument

Prior to these events, the HQCJ, in a joint public statement with the High Council of Justice (hereinafter – the HCJ, Council), the Council of Judges of Ukraine, the State Judicial Administration of Ukraine, the National School of Judges of Ukraine, and the Chairman of the Supreme Court, recommended to consider the possibility of accelerating the course of the qualification assessment.

3. CPLR assessment of the authorities counter-point

The leadership of the judiciary is trying to speed up the judges’ qualification, but the HQCJ is becoming less capable of fulfilling its powers. The qualification assessment itself is merely an imitation of the refinement of the judicial system, which shows scant results.

4. Related legislation/instructions which require the authorities act in a certain manner:

Part 1 of Art. 88 of the Law of Ukraine “On the Judicial System and the Status of Judges” determines that the HQCJ shall adopts a motivated decision to confirm or decline the judge’s ability to administer justice in a relevant court. If the PCI in its conclusion finds that the judge does not meet the criteria for professional ethics and integrity, the Commission may decide to confirm the ability of such a judge to administer justice in a relevant court only if such decision is supported by at least 11 of its members.

According to pp. 4, p. 16-1, Section XV of the Constitution of Ukraine, the establishment of the judge’s inconsistency with the position occupied based on the results of the assessment by the criteria of competence, professional ethics or integrity, is the basis for the dismissal of a judge from office.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Events that happened this week have confirmed the inability of the HQCJ to ensure a full-scope judicial refinement. As already noted by the CPLR experts, it is necessary to consider the possibility of reorganization of the Commission in order to include in the structure of the bodies for the selection and evaluation of judges more representatives of the public sector trusted by the society (human rights defenders, journalists, representatives of specialized NGOs) than the judges themselves during the period of the reform.

As for the immediate response, the Commission should stop conducting a qualification assessment until the problems with its staff composition are solved.

President canceled the decrees of his predecessor on the appointment of members of the High Council for Justice

---

1. CPLR expert opinion

On June 10, the President of Ukraine V. Zelensky canceled the decrees of his predecessor on the appointment of A. Vasylenko and М. Isakov as members of the HCJ.

Experts of the CPLR believe that the problem of the composition of the HCJ should be solved in a comprehensive and legal manner.

2. Respective authorities counter-point/argument

President of Ukraine V. Zelensky did not motivate cancellation of decrees.

On June 12, the HCJ held an extraordinary meeting, which considered the issue of further activities of the Council. At this meeting, A. Vasylenko and M. Isakov addressed to the HCJ with applications for leave: “in connection with the situation that has arisen, the possibility of its resolution by the court, in order to avoid doubts about the legitimacy of the work of the High Council for Justice.” According to the results of the meeting, the HCJ approved a statement which says that it is authoritative and continues to perform its functions. In addition, it became known that A. Vasylenko appealed the decree on the cancellation of his appointment in the court.

3. CPLR assessment of the authorities counter-point

Experts of the CPLR previously noted that A.Vasylenko and M. Isakov were appointed by P. Poroshenko in a political manner, without holding a competition, one week before the expiration of his term of office and bypassing the court injunction, by way of amending his decree on the procedure for conducting the competition. However, despite the questionable way of their appointment, yet they began to exercise their powers.

The CPLR experts believe that, under such conditions, the members of the HCJ would have to resign from these positions on their own. However, they did not.

At the same time, the President of Ukraine, having canceled the decrees on the appointment of A. Vasylenko and M. Isakov, tried to terminate their powers in a manner not provided for by law. He also initiated the procedure for a new competition for these positions in the absence of relevant vacancies.

4. Related legislation/instructions which require the authorities act in a certain manner

Article 24 of the Law of Ukraine “On the High Council of Justice” defines an exhaustive list of grounds for the dismissal of a member of the HCJ from office. The mechanism of dismissal involves the maximum non-dependence of the existing members of the Council from the subjects that have appointed them, in particular, the authorized body may dismiss the members of the HCJ only on a case-by-case basis and solely on the basis of the respective Council’s submission.

In accordance with Part 1 of Art. 24 of the Law of Ukraine “On the High Council of Justice”, the grounds for the dismissal of a HCJ member from office are as follows:

1) inability to exercise their powers due to health conditions in the presence of medical findings;

2) submission of an application for dismissal of a member of the HCJ at own discretion;

3) gross or systematic neglect of duties that is incompatible with the status of a member of the High Council of Justice or has revealed his/her inconsistency with the position held, commission of another behavior that undermines authority and public trust in justice and the judiciary;

4) determination of the substantiality of the existing circumstances regarding his/her non-compliance with the requirements specified in Article 6 of this Law;

5) significant violation of the requirements established by the legislation in the field of prevention of corruption;

6) systematic non-participation in the work of the HCJ or the body of the HCJ, in which he/she is included.

According to Parts 2 and 3 of this Article, a decision to dismiss a member of the HCJ from office on the grounds specified in paragraphs 1, 2 shall be taken by the HCJ itself, and on the grounds specified in paragraphs 3-6 – by the body that appointed the member of the Council, upon submission of the HCJ.

Article 25 of the Law of Ukraine “On the High Council of Justice” defines the grounds for termination of the powers of a member of the HCJ, which are:

1) expiration of the term for which he/she has been elected (appointed), except in case when the HCJ becomes unauthorized due to the expiration of the term of authority of this member;

2) coming into effect of the conviction against him/her;

3) termination of citizenship of Ukraine or acquisition of citizenship of another state;

4) recognition of his/her absence or declaration of death, recognition of incapacity or limited capacity;

5) termination of a judge’s authority or dismissal;

6) his/her death. The authority shall be terminated upon occurrence of the relevant event.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Another scandal with the membership composition of the HCJ shows that the key body in the judiciary system remains primarily a political instrument. The way in which the powers of A. Vasylenko and M. Isakov were terminated has demonstrated that it is important for the political authorities to maintain control over the activity of the HCJ.

The composition of the High Council for Justice can not be reformatted without amending the Constitution, however it is possible to introduce a check on the integrity of the current members, and the failure to pass this check would be the basis for termination of authority. Such an examination could be provided by international experts, delegated by international organizations, for example, the Public Council of International Experts, which participated in the formation of the High Anticorruption Court.

It is also necessary to explore the possibilities for making constitutional changes to the procedure of the establishment of this body. As noted by the CPLR experts, under the present conditions not less than half of the membership of this body should be appointed with due regard of the public opinion.