Political Points for 15–22 April 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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Possibility of early termination of powers of the Parliament
1. CPLR expert opinion
During the last week of April, the possibility of early dissolution of Parliament by the new President was actively discussed.
2. Respective authorities counter-point/argument
None.
3. CPLR assessment of the authorities counter-point
In accordance with Part 5 of Article 90 of the Constitution of Ukraine, the powers of the Verkhovna Rada of Ukraine can not be terminated earlier by the President of Ukraine in the last six months of the term of office of the Verkhovna Rada of Ukraine. Part 1 of Article 76 of the Constitution of Ukraine stipulates that the constitutional composition of the Verkhovna Rada of Ukraine is four hundred fifty people’s deputies of Ukraine elected on the basis of universal, equal and direct voting right by secret ballot for a term of five years. Thus, the term of office of the Verkhovna Rada of Ukraine is 5 years. The Verkhovna Rada of the VIII convocation gained authority on November 27, 2014, consequently the last day of a possible early termination of parliamentary powers is May 27, 2019.
In accordance with Part 1 of Article 104 of the Constitution of Ukraine, the newly elected President of Ukraine enters into office no later than 30 days after the official announcement of the results of the election, from the moment of taking the oath to the people at the ceremonial session of the Verkhovna Rada of Ukraine. As regards the terms of such an announcement, in accordance with Part 14 of Article 86 of the Law of Ukraine “On Election of the President”, during the repeated voting, the same terms shall apply as in the first round. That is, according to Part 8 of Art. 83 “the district election commission is obliged to establish the results of voting within the territorial election district not later than on the fifth day after the election day”, and “the protocol on the results of voting within the territorial election district shall be transported to the Central Election Commission immediately after signing” . Further, in accordance with Part 7 of Art. 84, the Central Election Commission “shall, within ten days, but not later than on the third day after the receipt of all protocols of district election commissions on the results of voting”, determine the results of the election of the President of Ukraine, which shall be drawn up by the protocol. Then, “not later than the third day after signing of the protocol on the voting results” (Part 4, Article 86), it officially publishes the election results (Part 6, Article 84). In summary, the district election commission and the Central Election Commission have up to 18 days from the date of the election, that is, until May 9.
In accordance with Part 1 of Art. 103 of the Constitution of Ukraine, the President of Ukraine is elected by citizens of Ukraine for five years. Petro Poroshenko took the oath on June 7, 2014, his five-year term expires on June 7, 2019.
4. Related legislation/instructions which require the authorities act in a certain manner
The Constitution of Ukraine, the Law of Ukraine “On Election of the President of Ukraine”, Resolution of the Verkhovna Rada of Ukraine “On the Procedure of Ceremonial Session of the Verkhovna Rada of Ukraine, devoted to the oath of office of the newly elected President of Ukraine”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The Verkhovna Rada of Ukraine should determine June 7, 2019 as the date of the ceremonial session of the Verkhovna Rada of Ukraine devoted to the oath of office of the newly elected President of Ukraine. We would like to emphasize that the President’s decision on early termination of parliamentary powers on any grounds taken after May 27 is unconstitutional.
The Constitutional Court refused to defend its independence
1. CPLR expert opinion
On April 18, the Grand Chamber of the Constitutional Court of Ukraine issued a Ruling on the refusal to open constitutional proceedings in a case on the constitutional petition of 47 people’s deputies of Ukraine on the compliance with the Constitution of Ukraine (constitutionality) of the provisions of the second sentence of the first paragraph of part three, second paragraph of part three, part four of Article 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” dated February 10, 2010 No. 1861-VI. The Ruling is final. According to the people’s deputies of Ukraine, who submitted the constitutional petition and the Centre of Policy and Legal Reform, by adopting this decision, the Constitutional Court of Ukraine leaves itself in a potential dependence on the political influence of the Parliament, and refuses to defend its independence.
2. Respective authorities counter-point/argument
Currently, there is no text of the Ruling on the refusal to open the proceedings on the website of the Constitutional Court of Ukraine, therefore it is impossible to establish the grounds based on which the Grand Chamber of the Constitutional Court refused to open the proceedings. Most likely, this was due to the lack of substantiation of the allegations of unconstitutionality of the act, as there are no other legitimate grounds. Unfortunately, the CCU uses the argument “lack of proper justification” to refuse consideration of politically complicated cases, for example, as in the case of refusing to consider the constitutionality of a monopoly on agricultural land.
3. CPLR assessment of the authorities counter-point
People’s deputies addressed the Constitutional Court of Ukraine with a request to effectively defend its independence – to recognize unconstitutional the mandatory political support of candidates for the position of a judge of the CCU in Parliament. This is true that the Parliament has approved unconstitutional amendments to Art. 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, which established that “the right to submit a proposal regarding a candidate for a position of a judge of the Constitutional Court of Ukraine may be exercised by a parliamentary faction (parliamentary group), a group of non-factional MPs in a number not less than the quantitative composition the smallest deputy group”. These proposals shall be submitted to the Verkhovna Rada Committee on Legal Policy and Justice. Back in the autumn of 2017, the Parliament ruled that candidates can not nominate themselves for a competition independently. However, this is contrary to Article 148 of the Constitution of Ukraine, which established competitive selection of candidates for the position of the CCU judge. However, the Third Collegium of the First Senate of the CCU refused to open constitutional proceedings, and the similar decision was adopted by the Grand Chamber of the Constitutional Court of Ukraine.
Therefore, the politicized selection of candidates for the position of a Constitutional Court judge remains, which is the issue of dependence of the Constitutional Court of Ukraine and its ability to protect the Constitution, in particular from unconstitutional actions of Parliament.
4. Related legislation/instructions which require the authorities act in a certain manner
Art. 148 of the Constitution of Ukraine, art. 12 of the Law of Ukraine “On the Constitutional Court of Ukraine”, Art. 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
We call on the Verkhovna Rada of Ukraine to amend Art. 12 of the Law of Ukraine “On the Constitutional Court of Ukraine”, Art. 208-4 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” and ensure the implementation of the constitutional procedure for the selection of the CCU judges.
President of Ukraine signed the Law on Criminal Offenses No. 7279-d, which received a negative conclusion of the Council of Europe experts
1. CPLR expert opinion
On April 19, the President of Ukraine signed the Law of Ukraine №7279-д “On Amending Certain Legislative Acts of Ukraine on the Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses”.
In 2018, experts of the Council of Europe issued a negative conclusion on this document. In particular, it states: “The need for effective response to mass crimes in relation to minor offenses should not tolerate neglecting basic procedural guarantees. Unfortunately, such neglect will be a consequence of the proposed procedure (by the draft law – the author’s note), which will allow the use of procedural steps before any information is submitted to the Unified Register both in circumstances that have led to past abuses and in other cases in respect of which no provision has been made for the application of appropriate safeguards against such abuse; in addition, it will leave unclear restrictions on the length of the investigation and will create the possibility of putting pressure on suspects to forcibly convict themselves and deprive the party of the protection of fundamental rights “(paragraphs 193, 194 of the Conclusion).
2. Respective authorities counter-point/argument
Parliament passed the Law of Ukraine № 7279-д in general back on November 22, 2018.
3. CPLR assessment of the authorities counter-point
According to the Council of Europe experts, the following provisions of the Law of Ukraine 7279-d should be deemed inadmissible:
1. Strengthening penalties in a number of crimes, which does not meet either the principle of equality or the principle of proportionality. They will in no way contribute to reducing the burden on the pre-trial investigation bodies, as the investigation procedure will remain unchanged for such cases.
2. Introduction of individual units of inquiry may complicate the functioning of the criminal justice system. Introduction of formal differences between the inquiry bodies and the pre-trial investigation bodies will only create unnecessary duplication of powers and adversely affect the effectiveness of investigations.
3. It is inacceptable to admit another attempt to return to the text of the CCP the possibility of conducting inspections, medical examinations, etc., entering information to the Unified Register of Pre-trial Investigations in “urgent cases”. Such changes will draw back the criminal justice reform, as they will inevitably lead to violations of the rights of an individual who will in effect be deprived of the guarantee of judicial control over the actions of the inquirers.
4. Extremely short deadlines are unjustified: 72 hours after notification of suspicion – in case a person finds guilty; 20 days – in case a person does not recognize the guilt or there is a need for additional investigation actions; 1 month – in case of submission of a petition for an expert examination. Proposed terms are unrealistic and they will lead to the use of illegal methods of pressure on individuals by the authorities.
5. Excessively reduced periods for consideration of the indictment, combined with the possibility of considering such a conclusion by the court in the absence of the participants. In the event of unconditional recognition by a person of guilt, a judicial review as such may not be carried out.
4. Related legislation/instructions which require the authorities act in a certain manner
The Constitution of Ukraine, the Criminal Code of Ukraine, the Code of Ukraine on Administrative Offenses, the Criminal Procedure Code of Ukraine.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
Before the Law comes into force (January 1, 2020) it is necessary to bring its provisions in line with the Conclusion of the Council of Europe.