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Political Points for 10 – 17 September 2018

17.09.2018

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua




Lack of the language law and inaction of the Parliament


1. CPLR expert opinion

On February 28, the Constitutional Court declared unconstitutional in general the Law “On the Principles of State Language Policy”. This is the so-called “language law” or “law of Kivalov-Kolesnichenko”, adopted by the Verkhovna Rada on July 3, 2012.

Since then, there is no law in Ukraine that comprehensively regulates the functioning of the Ukrainian language as a state language and broadens the provisions of Article 10 of the Constitution of Ukraine at the level of the law. Therefore, the Verkhovna Rada needs to adopt a new profile legislation.

2. Respective authorities counter-point/argument

On September 11, at the forum organized by the Reanimation Paper on Reforms, the Speaker of the Parliament stressed the need to resolve the issue by the Verkhovna Rada. There is no consolidated position of the factions.

3. CPLR assessment of the authorities counter-point

The issue of regulating the state language is extremely important for the Ukrainian society and needs relevant legislation. Currently, four draft laws are registered in the Parliament that have to be considered. It seems that the draft laws No. 5670 and No. 5670-d have the best chances for adoption in the first reading.

The first draft law has been in the Parliament for more than a year. It was signed by about 30 people’s deputies from different factions.

The second draft law was elaborated on the basis of the first one and finalized by the Committee on Culture and Spirituality. It was supported by the committee and about 70 people’s deputies. The draft law number 5670-d on ensuring the functioning of the Ukrainian language as the national language is aimed at protecting the state status of the Ukrainian language as the language of Ukrainian citizenship and the adoption of the Ukrainian language as the language of interethnic communication and understanding in Ukraine. The draft addresses the problematic provisions of the Kivalov-Kolesnichenko Law, and ensures the use of the Ukrainian language in the public sphere. In our opinion, this very draft law should be supported.

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

Article 10 of the Constitution of Ukraine, Decision of the Constitutional Court No. 2-r/2018.

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

The Verkhovna Rada should speed up the consideration of language legislation. The draft law No. 5760-d, supported by the committee, should be approved in the first reading, and, in the course of the second reading, all disputable issues should be resolved.

This issue needs to be resolved during this parliamentary session, as the next session will coincide with the official presidential campaign, which will complicate the adoption of language legislation.



First Deputy Head of Security Service of Ukraine Pavlo Demchyna became aware of the prepared notice of suspicion on illicit enrichment for him before the official notification


1. CPLR expert opinion

NABU has been investigating criminal proceeding on possible illicit enrichment of P. Demchyna for almost 1,5 year. On September 13 Demchyna said that he was aware of the prepared notice of suspicion for him.

NABU confirmed the fact of preparation of this notice on the following day and pointed out that prosecutor of SAPO hadn’t adopted the procedural decision on this notice of suspicion yet. Moreover, NABU mentioned that the submission of this notice to SAPO and the information leakage about its preparation had coincided in time.

2. Respective authorities counter-point/argument

According to the SAPO official statement, prosecutors assumed that the notice of suspicion should be refined, so prosecutors refused to adopt the procedural decision on notice of suspicion for Demchyna. Moreover, in order to persuade public of the low quality of this document SAPO had publicized the full text of the notice of suspicion submitted by detectives of NABU, this could be seen as an unprecedented step. SAPO in the official statement denied the information leakage about prepared document from prosecutors.

Demchyna said that detective of NABU, who prepared the notice of suspicion, had committed several crimes, including the prosecution of wittingly innocent person. He submitted the statement on these crimes to the Prosecutor General’s Office, which has already started criminal proceeding.

3. CPLR assessment of the authorities counter-point

According to the provision of the Criminal Procedure Code, detective notify the person of suspicion after the confirmation of prosecutor for this action. The person could be notified of suspicion in case of sufficient evidences collected to suspect the person in criminal offense. Nevertheless, only the prosecutor has the access to all the materials and evidences in any criminal proceeding and has a possibility to assess them at this stage of the process and to make a decision whether these evidences sufficient to suspect the person. The public and experts do not have any access to these materials, so it wouldn’t be objectively to make any conclusion at this stage.

The fact of publication of the text of above-mentioned notice of suspicion would have obviously negative influence of the effectiveness of thus criminal proceeding and its final results. Moreover, this situation could be harmful for the future cooperation between NABU and SAPO.

The statement of Demchyna on the possible commitment of offenses by the detective of NABU could show his desire to avoid in any way the notification of him on the possible illicit enrichment. According to the Criminal Procedure Code, only the investigative judge could decide whether the notice of suspicion is reasonable, justified and based on sufficient evidences to assume that this concrete person has committed a criminal offense.

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

Art. 36, 40, 42, 194, 222, 276-279 of the Criminal Procedure Code of Ukraine; Art. 368-2, 372, 383 387 of the Criminal Code of Ukraine.

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

Detectives of NABU should as soon as possible refine the notice of suspicion for Demchyna and to submit it to SAPO, after that the prosecutor should unbiasedly and objectively consider this notice of suspicion. SAPO should avoid any publication of the notice of suspicion before the actual notification of any suspected person.

The fact of information leakage about the prepared notice of suspicion for Demchyna should be properly investigated in the process of separate criminal proceeding.



Detectives of NABU gave to the Minister of Infrastructure Volodymyr Omelyan the notice of suspicion of illicit enrichment


1. CPLR expert opinion

On September 13, detectives of NABU under the procedural guidance of SAPO prosecutors informed V. Omelyan on the suspicion of him of possible illicit enrichment and false statements in his asset and income declarations.

According to NABU, the minister failed to declare that he used several assets and failed to mention his spendings. Omelyan obtained several assets, the legitimacy of grounds for obtaining which was not confirmed by evidence and the value of which significantly exceeded his legal revenues.

SAPO prosecutor has asked for a bail of UAH 5 mln for Omelyan, but hasn’t ask for his temporary dismissal from the position of the Minister yet.

2. Respective authorities counter-point/argument

According to Omelyan, this notice of suspicion doesn’t have any grounds. The main arguments supporting his position are the NACP conclusions on the full verification of his annual declarations for 2015-2017, where no signs of false statements in declarations or any signs of illicit enrichment had been found.

Nonetheless, neither during the media briefing nor during the court hearing he didn’t mention any reasonable arguments on the existence of any legal income which could be sufficient to obtain these assets or on the lack of grounds to declare assets that had been used by him.

The investigative judge decided that personal guarantees of Ihor Zhdanov (Minister for Youth and Sports) and Fedir Bendiuzhenko (MP) are sufficient and reasonable precautionary measures for the minister.

It should be mentioned that one year ago, in April 2017, Omelyan was one of the guarantors for the former MP Mykola Martynenko, who is accused of commitment of the serious corruption and corruption-related offenses. The indictment on Martynenko has been already submitted to the court.

The investigative judge Hanna Serhienko could be investigated by NABU as well on possible false statements in her declaration. According to the NACP conclusion on verification of her annual declaration, she had failed to declare almost USD 40 000 of income, this conclusion was submitted to NABU. However, Serhienko convinced that this NACP decision could be seen as the pressure on her and interference in her judicial activities. In February 2018 she gave the permission for NABU detectives to conduct several investigative actions in the criminal proceeding on the possible false statement in the annual declaration of NACP member, former Head of this Agency Natalia Korchak.

3. CPLR assessment of the authorities counter-point

According to the provisions of the Criminal Procedure Code, the person could be notified on suspicion in case of sufficient evidences collected to suspect the person in criminal offense. This procedural decision must be confirmed by prosecutors.

Public and experts do not have any access to the evidences collected in this concrete criminal proceeding, so any preliminary conclusions could be done based on the evidences mentioned by SAPO prosecutor during the court hearing only. Among other evidences the prosecutor mentioned data about spending and income of Omelyan, information about the usage of undeclared assets, information from his chats with other people etc.

The Criminal Procedure Code envisaged that during the selection of the precautionary measure investigative judge should take into account different circumstances, including the sufficiency of evidences to presume that this person committed a crime; sanction for appropriate offense; reputation of the suspected person. Investigative judge decided that the notice of suspicion of Omelyan is well-grounded and supported by sufficient evidences, but, nevertheless, she decided to select softer precautionary measure for the minister in comparison with the one asked fro by SAPO prosecutor.

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

Art. 36, 40, 42, 176-178, 180, 194, 276-279 of the Criminal Procedure Code; art. 368-2 of the Criminal Code; art. 65 of the Law of Ukraine on Corruption Prevention.

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

Pre-trial investigation in this criminal proceeding on the possible offenses by Volodymyr Omelyan should be investigated in full consistency with the provisions of the Criminal Procedure Code and during the reasonable time. In case of sufficient evidences would be collected, the pre-trial investigation should be finalized and the indictment should be submitted to the court.

According to the Law on Corruption Prevention, the person who has been notified of suspicion in offense in the sphere of performance of public duties, would be temporarily removed from his/her position. The Criminal Procedure Code determines the procedure for such a temporary dismissal. According to the Criminal Code of Ukraine, the crime of illicit enrichment is classified as a crime in the sphere of performance of public duties, so the minister should be temporary dismissed.