Political Points for 14 – 21 May 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.
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- Political forces and financial clans want to have an influence on the selection of judges of the Anticorruption Court. It is important to prevent it
- The draft law on improving the activities of the SBI was adopted at the first reading
- The public calls on the President, People's Deputies and the Ombudsman to make a constitutional submission regarding the unconstitutionality of e-declaration for activists
Political forces and financial clans want to have an influence on the selection of judges of the Anticorruption Court. It is important to prevent it
1. CPLR expert opinion
On May 21, 2018, the Speaker of the Verkhovna Rada Andriy Parubiy stated that the law on the Anticorruption Court is a key law for the current plenary week (its adoption in general is likely). The Speaker also informed that the draft law was agreed with the IMF and the Venice Commission. The discussions continue only with respect to the authority of the Public Council of International Experts.
It should be reminded that the draft law “On the Supreme Anticorruption Court”, initiated by the President of Ukraine provides that the selection of candidates for the Anticorruption Court would be carried out by the current composition of the High Qualifications Commission of Judges (HQCJ), and the Public Council of International Experts would only be able to issue recommendations as regards the unfairness of individual candidates (the Public Council of Integrity played the similar role while forming the new Supreme Court, and most of its conclusions were rejected).
During the selection of the Supreme Court judges, which was conducted by the HQCJ, the key issues were: manipulations by its members, which brought the victory for far not the best candidates, as well as the impossibility of verifying the fairness of the result.
The Public Council of International Experts being isolated from the process of determining the selection results can be used to “cover” the competition results, on which the political and oligarchic elites want to have influence through active members of the HQCJ.
In addition, according to the presidential draft law, the role of the cassation instance in cases of high-level corruption is assigned to the acting composition of the Supreme Court. This may lead to the fact that the Supreme Anticorruption Court, even fairly established, may prove to be ineffective, as the Supreme Court’s judges under the control of the political authorities will be able to cancel the decision of the Supreme Anticorruption Court following their instructions.
2. Respective authorities counter-point/argument
An analysis of the text of the draft law and proposals of representatives of key political forces in the parliament demonstrates that in the Public Council of International Experts internationalists are supposed to take a role of international experts, who will provide advisory negative conclusions about the candidates.
Moreover, there are proposals to provide for the possibility of appealing against the decisions of this Council in court (it should be reminded that the political authorities have instruments of influence on judges).
Only some proposals of people’s deputies are aimed at including international experts directly into the composition of the HQCJ, so that they were involved in all stages of the competition and prevented the possibility of manipulative determination of its results.
3. CPLR assessment of the authorities counter-point
According to the CPLR, in case of isolation of international experts from the procedure of selecting the best candidates, the international community will have no opportunity to control the fairness of the determination of the competition winners.
Even giving internationalists the right to veto individual candidates will not ensure the fairness of selection in the context of non-transparent determination of the competition results by the current composition of the HQCJ, which compromised itself during the competition procedure to the Supreme Court.
Secondly, the HQCJ will remain uncontrolled and will be able to place candidates in the ranking under the influence of political and oligarchic elites.
Thirdly, the model proposed by the President and the Speaker of the Verkhovna Rada of Ukraine (a separate international body isolated from the selection process of the competition winners) is not in line with the recommendations of the Venice Commission:
“Additional safeguards should be introduced to ensure that the decision-making body in the appointment procedure of judges is sufficiently independent of the executive and legislative powers. This could be achieved, for example, by giving a non-political agency such as the High Qualifications Commission of Judges (HQC) the right to nominate members to that body, in addition to the members proposed by international donors. Another option would be not to create an additional body such as the proposed Competition Commission but, as a temporary measure pending completion of the judicial evaluation, to include experts proposed by international donors as supernumerary members of the HQC to participate in the selection procedure for judges in the anti-corruption courts and to give them a crucial role in that procedure. The procedure for involving international organisations and donors in the selection procedure needs to be regulated more in detail so as to provide for a high degree of transparency and compliance with the Constitution”.
Secondly, it is more difficult for international experts to assess the past of the candidates in order to deselect the worst candidates than to evaluate their capabilities and identify the best candidates.
In addition, the Venice Commission proposed: “special rules for anti-corruption courts and judges (including their appointment and status) which deviate from the general LJSJ provisions should be limited to what is necessary for them to work effectively”.
4. Related legislation/instructions which require the authorities act in a certain manner
In order to solve the main problem that emerged during the competition to the Supreme Court, in the opinion of the CPLR, internationalists should be involved in the selection of the best, rather than the deselection of the worst. If the HQCJ will be entrusted to conduct selection, then internationalists should be included in this very structure in order to minimize the room for manipulation, and hence the possibility of forming a pocket anticorruption court. Therefore, we support the proposals of the people’s deputies to create a special panel for the selection of judges of anti-corruption courts as part of the HQCJ (consisting of three members of the HQCJ and four international experts).
At the same time, it is necessary to preserve the stages of selection determined by the current legislation and participation of the Public Council of Integrity, which can ensure the negative selection of candidates (deselection based on the integrity criterion).
In addition, it is necessary to create a separate autonomous anticorruption chamber in the Supreme Court, and its judges should be selected according to the same procedures as the judges of the Supreme Anticorruption Court.
The draft law on improving the activities of the SBI was adopted at the first reading
1. CPLR expert opinion
The Draft Law on Amendments to Certain Legislative Acts of Ukraine on Improving the Activities of the State Bureau of Investigations (Reg. No. № 5395-d) was adopted at the first reading on May 17, 2018. This Law will allow quicker start of the SBI’s work and will solve a number of issues regarding the authority of the Bureau.
2. Respective authorities counter-point/argument
The main provisions of Draft Law 5395-d are:
- introduction of the position of a detective, which will allow to announce competitions for positions in all operational departments of the Bureau;
- providing separate SBI divisions with authorities to conduct operational and investigative activities. At present, only internal security and personal security divisions are delegated with this authority, and the Bureau can not carry out operational activities in the frames of the pre-trial investigation;
- transfer from the External to the Internal Competition Commission of the authority to select employees of the central office of the Bureau.
3. CPLR assessment of the authorities counter-point
The draft law proposes to transfer territorial departments from Mykolaiv to Odessa and from Poltava to Kharkiv, which has a corruption risk and may jeopardize the objective consideration of Bureau cases in the courts. The model of the layout of the territorial units, as foreseen by the current law, intentionally establishes the jurisdiction of cases involving high-ranking officials from cities with millions of inhabitants to courts in smaller cities of the country.
The draft law proposes a recruitment of internal control officers without the participation of External Competition Commission. Instead, the current law guarantees the selection of all internal security personnel with the utmost care, independently and in a transparent manner, since they will be responsible for the integrity within the Bureau.
The draft law proposes to establish strict requirements for candidates for the positions of a director of the territorial office of the Bureau (10 years of experience) and a head of the division in the central office (7 years of experience). Such requirements will not allow involving young legal professionals in the Bureau’s work, and will provide benefits to “old” personnel from the law enforcement agencies.
4. Related legislation/instructions which require the authorities act in a certain manner
The draft law 5395-d may be supported in general only upon elimination of these shortcomings before its second reading in the Parliament.
The public calls on the President, People's Deputies and the Ombudsman to make a constitutional submission regarding the unconstitutionality of e-declaration for activists
1. CPLR expert opinion
On April 3, 2018, the Verkhovna Rada of Ukraine repeatedly tried to correct the mistake and cancel unconstitutional electronic declaration for public activists. Voting was defeated by people’s deputies, despite the international community’s call for the abolition of these discriminatory rules for the public, as well as the negative conclusions of the Venice Commission.
In order to protect the right of Ukrainian citizens to an active civic position against discriminatory norms that are not in compliance with the Basic Law, the Center for Policy and Legal Reforms and the Reanimation Package of Reforms prepared an open constitutional petition for the recognition of the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” dated October 14, 2014, No. 1700-VII and paragraph 2 of Section II “Final Provisions” of the Law of Ukraine “On Amendments to some Laws of Ukraine on the Peculiarities of Financial Control of Certain Categories of Officials” dated March 23, 2017, as such that do not comply with the Constitution of Ukraine.
2. Respective authorities counter-point/argument
None.
3. CPLR assessment of the authorities counter-point
Application of anticorruption prohibitions, restrictions and duties in respect to individuals is contrary to the constitutional right to freedom of association, the principle of equality and the prohibition of restrictions on the basis of the type of activity, non-interference in private life. In addition, imposition on an indefinite number of individuals of anticorruption restrictions and obligations that are imposed on persons exercising state functions is contrary to the principle of the rule of law in terms of violation of legal certainty and also contradicts the constitutional right to freedom of association, the principle of equality and the prohibition of restrictions on the basis of the type of activity, non-interference in private life.
4. Related legislation/instructions which require the authorities act in a certain manner
Articles 150, 152 of the Constitution of Ukraine.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The persons having the right to a constitutional petition – the President of Ukraine as a guarantor of observance of the Constitution of Ukraine, people’s deputies and the Ombudsman of the Verkhovna Rada of Ukraine, should support the petition prepared by the public and urgently submit it to the Constitutional Court of Ukraine with a request to:
- recognize the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” dated October 14, 2014, No. 1700-VII, as non-corresponding to the Constitution of Ukraine (unconstitutional), as they do not comply with the provisions of part one of Article 8, part one of Article 21, part two of Article 24, part one of Article 32, part four and part five of Article 36, part one of Article 64 of the Constitution of Ukraine;
- recognize the provisions of paragraph 2 of Section II “Final Provisions” of the Law of Ukraine “On Amendments to some Laws of Ukraine on the Peculiarities of Financial Control of Certain Categories of Officials” dated March 23, 2017, as non-corresponding to the Constitution of Ukraine (unconstitutional) as related with unconstitutional provisions of paragraph 5 of part one of Article 3, paragraph three of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” dated October 14, 2014, No. 1700-VII.
The Constitutional Court of Ukraine should open proceedings under the constitutional petition and recognize the above provisions as non-corresponding to the Constitution of Ukraine.