Political Points for 11–18 March 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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Draft law aimed at establishment of the dependence of judges and legalization of unfaithful conduct has been introduced to the Parliament
1. CPLR expert opinion
On February 26, 2019, 12 people’s deputies registered a draft law No.10090 amending the Law of Ukraine “On Judicial System and Status of Judges” regarding the improvement of certain provisions. The draft law has a chance for adoption since its co-authors are deputies from 5 of the 7 parliamentary factions and groups, most of whom are also representatives of the pro-government coalition (the group of authors does not include representatives of only two parties “Samopomich” and “Volya Narodu”). Key provisions of the draft law are limited to the following:
- cancellation of the prohibition for judges to apply to the elected positions in state authorities and local self-government bodies, as well as to participate in election campaigning;
- cancellation of the prohibition for judges to accept any kind of awards, including state awards;
- judges who participated in the competitive procedures and successfully passed the examination, and in relation to whom the High Qualifications Commission of Judges of Ukraine did not pass a decision on their incompatibility with the position (including those judges for whom the qualification assessment was terminated) are considered to be automatically qualifying;
- amendments introduced to the provisions of the law on ensuring adequate housing conditions for judges. Instead of providing judges with “corporate housing”, it is proposed to supply “housing” to judges.
In the opinion of the CPLR experts, the adoption of this draft law may seriously worsen the situation with the independence of the judicial system and raise doubts on some of the achievements of judicial reform. Indeed, some provisions of the draft law directly contradict European standards (in particular, regarding the removal of restrictions on accepting awards by the judges), part of the provisions are aimed at legalization of the existing illegal practices, which consists in privatization of corporate housing for personal enrichment, another part thereof allows some judges to avoid verification for integrity within the limits of qualification assessment. It can be argued that these provisions are written for a particular person who heads the court dealing with the majority of lawsuits against the authorities.
Apparently, the only beneficiary of the amendment on the automatic qualification assessment is Pavlo Vovk, Chairman of the Kyiv Regional Administrative Court, who has got a negative conclusion of the Public Council of Integrity. The Public Council of Integrity has adopted such a conclusion because Pavlo Vovk received an award weapon from the Minister of the Interior, facilitated the privatization by the court judges of the apartments provided to them as corporate housing, and was recorded to have improper relations with politicians.
It is likely that the political forces will try to ensure the adoption of this draft law in exchange for guaranteeing a certain outcome of judicial proceedings. At present, the Kyiv Regional Administrative Court is considering the case on the invalidation of the Rules of Procedure of the Public Council of International Experts, as well as lawsuits on the lack of authority of certain members of the High Qualifications Commission of Judges. Satisfaction of these claims may raise questions about the outcome of the competitions to the High Anticorruption Court and the Supreme Court.
2. Respective authorities counter-point/argument
According to the press service of the Kyiv Regional Administrative Court, its Chairman Pavlo Vovk provided the following reasoning for one of the proposals of the draft law No. 10090 on the prohibition for judges to apply for elected positions: “The Basic Law of Ukraine explicitly and exhaustively determine both requirements to candidates for the positions of people’s deputies Ukraine and the President of Ukraine, as well as categories of persons who are not eligible for such positions. However, none of the above mentioned legal provisions prohibit judges from being elected to these positions.”
We did not manage to find out public opinions of the authorities regarding other provisions of the draft law.
3. CPLR assessment of the authorities counter-point
Abolition of the provision of the law on the prohibition for judges to run for election may potentially affect the independence of the judicial system, especially as regards the public perception of a judge as a politically neutral profession. Pursuant to paragraph 4.2 of the Bangalore Principles of Judicial Conduct, constant public scrutiny imposes additional responsibilities on a judge that he/she must accept voluntarily and willingly.
In addition, we consider that the reference to the provisions of the Constitution regarding the narrowing of the rights of judges in connection with the prohibition to apply for elected positions is manipulative. The current version of the law only interprets the provisions of Article 127 of the Constitution of Ukraine regarding the prohibition for judges to participate in any political activity.
4. Related legislation/instructions which require the authorities act in a certain manner
According to paragraph 40 of the Joint Opinion of the Venice Commission and the Directorate General for Human Rights and Legal Issues on the Law of Ukraine “On Judicial System and Status of Judges” dated October 18, 2010, the possibility for judges to receive any awards is problematic from the viewpoint of the independence of judges, since it gives the opportunity to return thanks to the right people.
The practice of direct restriction of passive electoral rights of judges is not a Ukrainian innovation, it can be found in some other European countries. In particular, such restrictions exist in Spain, Portugal and Italy.
If a judge who passed a qualification assessment without an integrity check is recognized as qualifying, it will be contrary to the constitutional requirements that a judge should be not only competent but also honest (see Article 3, Article 127, sub-paragraph 4 of paragraph 16-1 of the Transitional Provisions of the Constitution Ukraine).
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
In the opinion of the CPLR experts, it is advisable to draw the attention of the people’s deputies and international partners to the risks implied by the draft law No. 10090. Our position is that the draft law “On Amendments to the Law of Ukraine “On Judicial System and Status of Judges” regarding the improvement of certain provisions” No. 10090 dated February 26, 2019 should be rejected.
NABU reputation is threatened due to the disclosure of materials of journalistic investigation by Lesya Ivanova and BIHUS.INFO
1. CPLR expert opinion
On March 11, a TV program “Nashi Groshi with Denis Bihus” released a video “What was the price for closing criminal cases in the defense area? Role of NABU, SSU and the prosecutor’s office (secret correspondence, pp. 4-5).” From the contents of this story and the corresponding publication “Army. Friends. Bucks. Parts 4 and 5” posted on the site bihus.info, it follows that NABU deliberately delayed the pre-trial investigation of criminal proceedings against theft in the defense sector, and some of its detectives actively contributed to the activities of one of the criminal groups that “specialized” on a systematic theft of public funds through the supply of low-quality or contraband spare parts to military equipment, the supply of these parts at overstated prices, for “kickbacks”, etc.
2. Respective authorities counter-point/argument
On March 12, NABU published an explanation “Charging NABU with the facilitation of corrupt schemes in the defense sector is groundless” where it provided arguments to refute “allegations” that were made against NABU in the TV program “Nashi Groshi with Denis Bihus”. Moreover, the same publication pointed attention to the fact that “none of the NABU staff members took bribes and for us this is an affair of honor to prove it legally.” On March 15, an extended interview with Artem Sytnyk was published, where he denied all allegations to NABU and emphasized that NABU did not receive from the Prosecutor’s General Office all correspondence of the players in defense frauds and bribery of SSU, PGU, and the military prosecutor’s office employees. According to the head of NABU, due to this very circumstance, a significant slowdown in the pace of investigation of relevant proceedings occurred. On March 17, “NABU comments on disclosed materials that were transmitted from PGU to NABU” were published in order to prevent manipulation and distortion of information on this issue.
3. CPLR assessment of the authorities counter-point
Absolute majority of “allegations” to NABU is based on correspondence materials, the validity of which has not yet been confirmed (for example, Y. Lutsenko has already stated that the PGU files do not include all information that was disclosed), and on assumptions that have not yet been officially confirmed. In this regard, any conclusions regarding both the above materials of the journalistic investigation and the official position of NABU in these matters would be premature and legally incorrect.
4. Related legislation/instructions which require the authorities act in a certain manner
Since the published materials refer to the possible facts of committing corruption crimes, according to Article 214 of the Criminal Procedure Code, the competent authorities (State Investigation Bureau and Internal Control Division of NABU) should open criminal proceedings upon these facts.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
On March 12, the SIB reported that it had already opened a criminal investigation of the possible facts of obtaining an unlawful benefit by officials of the PGU, SSU, SFSU and NABU for non-execution of pre-trial investigation and non-prosecution of persons involved in corruption in the defense sector. According to NABU representatives, an official investigation based on the facts of possible unlawful actions of the NABU employees related to the players of the published video was initiated even before the release of the last part of journalistic investigation into corruption in SE “Ukroboronprom”. At the same time, according to Part 5 of Art. 214 of the CPC, the Internal Control Division of NABU must open criminal proceedings based on the facts disclosed on March 11 in the TV program “Nashi Groshi with Denis Bihus”.
CPLR experts call on the public and international partners to first wait for the official results of the above criminal proceedings, and only then draw conclusions about the effectiveness, integrity and impartiality of certain employees of NABU and its leadership. Any premature conclusions may negatively affect reputation of the only yet untarnished anticorruption body in Ukraine.