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Political Points for 11 – 18 November 2019


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. 

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High Council of Justice has amended its Regulations to limit the openness of its activities

1. CPLR expert opinion

On November 11, the High Council of Justice (HCJ) amended its Regulations in connection with the entry into force of the Law of Ukraine No. 193-IX on the Activity of Judicial Governance Bodies. These amendments not only eliminated one of the novelties introduced by the said law, but also became a significant step backward in the transparency of HCJ’s activities.

Law No. 193-IX virtually eliminated the institute of a meeting room in HCJ, as it made clear that decisions should be adopted in the meeting room only in a few exceptional cases. In all other cases, the decisions must be made publicly.

However, in the new wording (paragraph 5.20 of the HCJ Regulation), upon the proposal of the Chairman, the issue may be discussed before the end of the consideration of the agenda, and at the request of at least one HCJ member, such discussion shall be held in the meeting room. Such a change makes it possible to bypass the legislative requirement for public decision-making, since Council members can now pre-discuss decisions in a meeting room, reach a compromise, and formally vote in favor of the decision in the public part of the proceedings.

In addition, the amendments made to the HCJ Regulation stipulate that video broadcasts of the HCJ meetings shall be made only with the request/consent of all parties. Previously, as a general rule, all meetings were broadcast, except in certain cases, while now the HCJ has radically changed this rule, and only those meetings will be broadcast, where not only the parties object, but one of the parties has made a request. Given that the Regulation requires the consent of all parties to broadcast, it can be argued that the number of broadcasts of the HCJ meetings will decrease substantially, which will inevitably lead to a decrease in the transparency of the HCJ activities and the social legitimacy of its decisions.

2. Respective authorities counter-point/argument

The HCJ explained the changes made to restrict video broadcasts of meetings by the need to take measures to ensure the authority and independence of the judiciary, prevent the disclosure of personal data and pre-trial investigation information. The HCJ also noted that this approach is in line with international standards and expert recommendations.

3. CPLR assessment of the authorities counter-point

First, the HCJ has been broadcasting its meetings since 2015. That is to say, for four years, no questions have been raised regarding the independence of the judiciary, and no secrets protected by the law have been disclosed. Instead, only now, after the Law of Ukraine No. 193-IX eliminated the meeting room in the activity of the Council, the question arose about the need to protect the authority of the judiciary.

Secondly, the changes made to the video broadcasting regulations are applicable to all HCJ procedures. In addition to resolving issues of disciplinary action and dismissing a judge from justice, the HCJ also considers transferring judges, appointing them to office, taking measures to ensure the independence of the judiciary. The HCJ did not justify the limitation of video broadcasting in these situations. It seems that the HCJ members want to avoid public accountability in this way.

Third, the method of ensuring the authority of the judiciary chosen by the HCJ is not in fact related to the stated purpose. The HCJ decisions, including disciplinary proceedings, are posted on the Council’s website and communicated publicly on Facebook. That is, any person can find out whether a judge who is considering his or her case is or was brought to disciplinary responsibility, as well as the circumstances that led to it. Termination of video broadcasts will in no way affect the protection of “sensitive” information about a judge, since the relevant circumstances will nevertheless be set out in a decision regarding him that will become publicly available.

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

Pursuant to Part 1 of Article 30 of the Law “On the High Council of Justice”, meetings of the HCJ and the Disciplinary Chambers shall be held openly. A closed meeting shall be held in exceptional cases, on the grounds specified by this Law. Part 7 of the aforementioned Article stipulates that minutes of the meetings of the HCJ and the Disciplinary Chambers shall be kept and that the meeting shall be fully recorded by technical means.

According to part 3 of Article 34 of the said Law, the decisions of the HCJ and its bodies shall be adopted at the meeting. A decision of the HCJ and its bodies can be adopted in the meeting room: if the consideration of an issue in an open meeting may lead to the disclosure of a secret protected by law; to prevent the disclosure of information about the intimate or other personal aspects of the lives of persons involved in disciplinary proceedings.

Paragraph 5.20 of the HCJ Regulation specifies that, before consideration of the case (agenda item) is over, the chair of the meeting proposes to discuss the case (agenda item) on the spot or in the meeting room, and if at least one of the board members insists – in the meeting room.

According to paragraph 2 of item 6.1 of the HCJ Regulation, video broadcasting of meetings of the Council can only take place if there are requests (consent) of all parties (persons in relation to whom the agenda item is considered), and the Council shall adopt relevant decision as a result of consideration thereof.

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

The CPLR experts are of the opinion that, as a general rule, all HCJ meetings should be broadcast. Only in the event that the public hearing of the case may harm the secrecy protected by the law, partial restriction of the video broadcast of the meeting to the extent necessary to protect such secrecy is permissible.

Changes to the preliminary discussion of the issue in the meeting room are aimed at circumventing the novelties introduced by the Law of Ukraine No. 193-IX on the liquidation of the meeting room.

In our view, these changes should be abolished.

Deputies will try to make the SBI dependent on the President

1. CPLR expert opinion

On November 13, 2019, the Parliamentary Committee on Law Enforcement approved the wording of the draft law No. 2116 “On Amendments to Certain Laws of Ukraine on Improving the Activity of the State Bureau of Investigation” for the second reading. The above draft law was introduced by the President (hereinafter – the draft law).

The vast majority of the proposed provisions are aimed at simplifying the structure and governance procedure in the SBI and are consistent with the general approach that is implemented by other central executive bodies. At the same time, the draft law proposes a number of other major changes:

  •  the SBI’s status is changed from a central executive body to a state law enforcement agency;
  •  the powers of the current Director of the SBI and his deputies are terminated ahead of schedule, and the President is supposed to appoint someone temporarily acting as a Director of the SBI;
  •  composition of the renewed Selection Commission for the election of the SBI’s Director will include three persons, identified by the Cabinet of Ministers on the basis of proposals from international organizations;
  •  operational, organizational, technical and informational support of the activity of the Selection Commission for the election of the SBI’s Director and its members will be provided by the President’s Office;
  •  organizational structure of the SBI will be determined by the President;
  •  Provisions on the Public Control Council at the SBI and the procedure for its formation will be approved by the President upon the submission of the SBI’s Director;
  •  control over the activity of the SBI will be exercised by the Verkhovna Rada Committee responsible for law enforcement issues;
  •  based on the results of consideration of the report of the SBI’s director, the Parliament will be able to recognize his progress on investigations as satisfactory or unsatisfactory. If the activity of the SBI’s Director is recognized unsatisfactory, this can be the reason for his dismissal;
  •  the quota system for operational posts in the SBI is abolished;
  •  the mechanism of out-of-competition transfer of investigators of prosecutors’ offices and prosecutors conducting pre-trial investigations or conducting procedural guidance (for at least four consecutive months within the teams of investigators or prosecutors) in criminal proceedings concerning the events on the Maidan is introduced.

The proposal to change the status of the SBI from a central executive body to a state law enforcement agency has no legal, regulatory or other grounds. The status of a “state law enforcement agency” is an entirely artificial legal construction, which does not in any way align with or derive from the provisions of the Constitution. At the same time, implementation of the proposed changes would be contrary to the constitutional principle of separation of powers, since the SBI is a typical law enforcement agency (pre-trial investigation body) and, accordingly, by its functional purpose, organizational model, area of activity and ordinary constitutional status corresponds to the characteristics of the executive body.

As stated by the Constitutional Court of Ukraine in its decision of June 13, 2019 №5-p/2019, the formation of a permanent independent state body, which by functional purpose, sphere of activity, powers has the characteristics of a central body of executive power, but is not subordinated to the Cabinet of Ministers and does not belongs to the system of executive bodies, is contrary to the Constitution.

Therefore, changing the status of the SBI will have only one consequence – contrary to the Constitution it will allow to subordinate the SBI to the President. It is necessary to emphasize that even the draft Law of Ukraine “On Amending Article 106 of the Constitution of Ukraine (regarding 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 Anti-Corruption Bureau)” (No. 1014 of 29.08.2019), if adopted by the Verkhovna Rada of Ukraine, will not become the legal basis for expanding the powers of the President. The powers to determine the members of the Selection Commission for the election of the SBI director, to provide operational, organizational, technical and informational support of the activity of the Selection Commission for the election of the SBI Director and its members, to approve the organizational structure of the SBI, as well as the Provisions on the Public Control Council and the procedure for its formation, will remain unconstitutional. However, most importantly, the aforementioned amendments to the Constitution will not change the functional purpose, scope and powers of the SBI. The law enforcement agency (pre-trial investigation body) will continue to be characterized by features that are inherent in the central executive authority.

The amendments proposed by the draft law, which, contrary to the Constitution, confer on the President additional powers over the SBI, are not autonomous and are based solely on changing the status of the SBI from a central executive authority to a state law enforcement agency. Since without change of status, the President’s role in organizing the activities of the SBI will look even more unjustified and will make the imbalance of power in the triangle “Verkhovna Rada – Cabinet of Ministers – President” even more obvious in favor of the President. In addition, the extension of the President’s authority in the sphere of executive power does not agree with the form of state government defined in the Constitution – the parliamentary-presidential republic.

In this respect, it should be reminded that the SBI is empowered to investigate criminal offenses committed by MPs, judges, prosecutors, law enforcement officials and servicemen. In addition, it is planned to pass a draft law in the near future that will finally deprive members of parliament of their immunity from prosecution. In other words, the President’s control over the SBI poses a very serious threat to the independence of representatives of other branches of power, first of all, to members of parliament.

The additional powers vested in Parliament also raise reservations.

The draft law proposes to allow the Verkhovna Rada to dismiss the director of the SBI after considering his annual report. However, the draft law does not contain any safeguards against the arbitrary decision of Parliament to dismiss the director of the SBI. For example, the appropriate safeguard is contained in the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”. Article 6 of this Law stipulates that the NABU Director shall be dismissed in the event of the conclusion of the commission to conduct an independent evaluation (audit) of the National Bureau’s performance on the ineffectiveness of the National Bureau’s activities and the improper performance of its director’s duties. Similar provision was contained in the Law of Ukraine “On the Prosecutor’s Office” – until recently this Law stipulated that in the event of termination of powers of the Prosecutor General as a result of distrust expressed by the Verkhovna Rada of Ukraine, the Verkhovna Rada receives from the Qualification and Disciplinary Commission of Prosecutors a conclusion on the performance of duties by the Prosecutor General.

It is noticeable that the Verkhovna Rada plans to take advantage of the absence of these safeguards in the near future. The text of the draft law approved in the first reading did not contain a provision for early termination of powers of the SBI leadership. However, during the preparation of the draft law for the second reading, its text was supplemented by such a provision. That is, the first case of dismissal of the SBI’s Director without proper analysis (evaluation) of his activity will take place already in the case of approval of the draft law. The justification for the amendment is not subject to analysis because it is emotional rather than reasonable.

The abolition of the quota system for posts of operative officers is also unacceptable. The introduction of a quota system for posts of investigators and operative officers in the Law of Ukraine “On the State Bureau of Investigation” was intended to open positions in the SBI to a large number of people who had no experience and, often, even access to work in law enforcement agencies. Therefore, the abolition of these quotas will have the effect that the posts of operative officers will be accessible only to existing and former police, security and tax police officers.

The proposal to introduce a simplified procedure for the appointment of former Prosecutor General’s investigators dealing with “Maidan cases” in the SBI is more than welcomed. The provisions proposed in the draft law, aimed at simplifying the structure and governance procedure in the SBI, are also welcomed.

2. Respective authorities counter-point/argument

During a meeting of the Law Enforcement Committee, the SBI Director Roman Truba opposed the adoption of the amendment to the draft law, which provides for the early termination of powers of the SBI leadership. According to him, only high-ranking officials, including MPs, who are being investigated in criminal proceedings, have claims against the SBI.

3. CPLR assessment of the authorities counter-point

Dismissal of the SBI Director must be preceded by a proper analysis (evaluation) and conclusion that the SBI’s performance is ineffective and that its Director is not properly performing his/her duties. Such analysis (evaluation) should be carried out by an independent permanent body or by a specially created independent commission, which does not include members or representatives of political bodies and civil servants.

4. Необхідні регуляції, які вимагають від органу діяти відповідним чином

Constitution of Ukraine, Law on the State Bureau of Investigation.

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

The Verkhovna Rada should return the draft law to the main Committee for revision, with the subsequent submission for a second reading.