Political Points for 16 – 23 December 2019

Negative Opinion of the Constitutional Court of Ukraine on the Draft Law on Amending the Constitution of Ukraine concerning the powers of the President of Ukraine to establish independent regulatory authorities, the NABU, and to appoint and dismiss the Director of the NABU and the Director of the SBI

1. Description of the legal situation

On December 16, 2019, the Constitutional Court of Ukraine issued a negative opinion in the case of compliance of the draft law amending Article 106 of the Constitution of Ukraine (concerning the powers of the President of Ukraine to establish independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau Ukraine and the Director of the State Bureau of Investigation) (Reg. No. 1014) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. Although the amendments proposed in the draft law are not aimed at liquidating independence or violating the territorial integrity of Ukraine, the CCU draws attention to the fact that the adoption of this draft law will lead to the establishment at the constitutional level of unspecified limits of powers of the President of Ukraine, will cause the problem of separation of the areas of activity of different authorities (in particular, the President of Ukraine and the Cabinet of Ministers of Ukraine), will cause a violation of the system of checks and balances between branches and bodies of state power, which is a threat to human and citizen’s rights and freedoms:

– indirect subordination of the NABU and the SBI to the President of Ukraine will create a threat to the independence of these bodies, will lead to concentration of the executive power with the President of Ukraine, his competition with the executive authorities, and consequently, to neglecting the guarantees of human and citizen’s rights and freedoms;

– granting the President of Ukraine the right to create additional bodies that can regulate the activities of economic entities without specifying the boundaries and areas of authority of such bodies, is the creation of a parallel executive branch subordinated to the President of Ukraine, which contradicts the principles of due governance and the form of state governance defined by the Constitution of Ukraine.

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

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

Constitution of Ukraine, Law of Ukraine “On the Constitutional Court of Ukraine”, 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

According to the Constitution of Ukraine, the absence of a positive opinion of the Constitutional Court on the draft law on Amending the Constitution of Ukraine makes it impossible to further consider and approve this draft law by the Verkhovna Rada. We recommend to the President of Ukraine as a subject of the right of legislative initiative, who introduced this draft law, to withdraw it.

In order to avoid cases of the constitutional changes initiated by the President of Ukraine, which are not in conformity with the constitutional principles of the rule of law and the principles of a democratic state with the rule of law, and which, if implemented, threaten the rights of a human and citizen, any amendments to the Constitution must be prepared in an open mode with a comprehensive expert discussion.

Presidential Working Group on Judicial Reform considered the Draft Law on Improving Justice Legislation, but due to the absence of quorum, it was unable to approve it

1. Event

On December 20, 2019, the Working Group under the Legal Reform Commission considered the draft Concept for the improvement of the legislation on the judicial system, the status of judges, the judiciary and related institutions. However, in the course of the consideration, the number of the Working Group members has been decreasing and in the end of the meeting, less than a third of the members remained, with a quorum of more than half of the membership.

Specific suggestions include:

1.  Reduction of the powers of the Grand Chamber (now the Senate) in favor of the Courts of Cassation within the Supreme Court;
2.  creation of a High Administrative Court and a High Court for the Protection of Competition as courts of first instance to hear cases with higher authorities respectively (they will take over the jurisdiction in such cases from the District Administrative Court and the Supreme Court) with the participation of the Antimonopoly Committee;
3.  introduction of a jury trial in the form of a jury that will decide the person’s guilt in committing particularly serious crimes;
4.  introduction of compensation payment to participants in the proceedings for violation of reasonable terms of consideration of cases;
5.  establishment of a mechanism for monitoring the lifestyle of a judge in connection with the judge’s obligation to prove the legality of the property’s sources of origin;
6.  creation of a single disciplinary body for judges instead of chambers in the High Council of Justice, etc.

2. CPLR Assessment

Along with positive novelties, in many cases, the Concept contains formulations that are too general and flexible (using such words as improve, revise, optimize, etc.). In some cases, the wording is too specific. All this is the result of different groups lobbying their interests.

The draft Concept does not envisage a reboot of the High Council of Justice, but instead contains provisions on “further development of legislation ensuring the proper implementation of the role of the High Council of Justice as a constitutional body of judicial governance.”

Judges, including retired judges being members of the Working Group, have managed to include a very specific provision in the Concept on the removal from the transitional provisions of the Law “On Judicial System and Status of Judges”, which gives the right to judges for life long retirement compensation, calculated on the basis of high pay implemented by this law only after they have worked for three years following the qualification assessment. If this lobbyist idea is implemented, all retired judges, even those who have avoided or failed their qualification assessment, will receive a much larger amount of life long compensation than their salary. Now the amount of their pension is calculated according to the previous law, based on their salary level. Implementation of this provision will result in a huge and unfair burden on taxpayers, an increase in staff shortage due to the retirement of many judges and the lack of personnel pool.

A representative of the National Bar Association objected the provisions aimed at abolishing the fee for consideration of complaints against attorneys, and supported the provisions that would allow the association to control the free legal aid budget currently managed by the Legal Aid Coordination Center at the Ministry of Justice.

At present, this document cannot be considered as a clear guide to complex and meaningful changes, in particular because the majority of the Working Group members are representatives of the bodies to be reformed, who are interested in maintaining the status quo.

The Grand Chamber of the Supreme Court noted that serving a judge's suspicion can be done by power of attorney

1. Event

On December 11, 2019, the Grand Chamber of the Supreme Court decided in the case on the determination of the subject matter of serving a notice of the judge’s suspicion.

According to the results of the consideration, it was stated that the Prosecutor General or his deputy may delegate the authority for the delivery of notice of judge’s suspicion that was approved (drafted) and signed by him to an official authorized to act in a specific criminal proceeding.

The Grand Chamber considers that the service of a procedural document (notice of suspicion), as well as the notification and clarification (if necessary) of the suspect’s rights are the final steps in the completion of the judge’s suspicion notification procedure. However, the mere delivery of the text of a notice of a judge’s suspicion to another subject, provided that it has been accepted, verified, drafted and signed by an authorized official under Article 481 of the CPC of Ukraine, does not violate the guarantee of judicial independence. After all, the guarantee of the independence of judges is ensured by the fact that this is the Prosecutor General or his deputy who checks the grounds for reporting a judge’s suspicion, drafts it and signs it.

2. CPLR assessment

The stated position of the Grand Chamber is quite logical and substantiated. Special procedures for judges and other so-called special subjects have a specific purpose, which is to establish an additional mechanism for verifying the existence of grounds for prosecuting a judge in criminal proceedings. Therefore, as the Grand Chamber rightly observed, this mechanism works and exhausts itself in the process of drafting and signing the text of the suspicion notice. In turn, the delivery of such a notice is already a technical process that does not include an additional level of guarantee for a judge.

By this decision, the Grand Chamber of the Supreme Court has changed the recent judicial practice to justify judges accused of a crime due to lack of duly served suspicion of committing a crime (in many cases, the courts explained that the serving of a judge’s suspicion had to be done personally by the Prosecutor General or his deputy).

Law “On the Status of People's Deputy”, the CPC of Ukraine and the Rules of Procedure of the Verkhovna Rada of Ukraine have been brought in line with the new version of Article 80 of the Constitution of Ukraine

1. Event

On December 18, the Verkhovna Rada passed the Law “On Amending Certain Legislative Acts of Ukraine to bring them in Line with the Law of Ukraine “On Amending Article 80 of the Constitution of Ukraine on the Immunity of People’s Deputies of Ukraine”. It establishes specific forms of legal responsibility for a people’s deputy of Ukraine, namely the specific rules for the beginning of a pre-trial investigation, notification of suspicion, detention, election of a preventive measure, conducting investigative actions.

2. CPLR assessment

According to Article 80 of the Constitution of Ukraine, “the People’s Deputies of Ukraine do not bear legal responsibility for the results of voting or oral statements in the parliament and its bodies, except for responsibility for insult or defamation”. Compared to this provision, the Verkhovna Rada of Ukraine has unreasonably expanded the range of situations when the people’s deputies of Ukraine do not bear legal responsibility, extending them also to “statements in the exercise of parliamentary powers”. Firstly, it does not take into account that the legislation does not contain a clear definition of the concept of “parliamentary powers” and their comprehensive scope, and Article 6 of the Law “On the Status of the People’s Deputy of Ukraine” indicates only certain activities of the people’s deputy of Ukraine. Secondly, with such wording in effect, the people’s deputies of Ukraine cannot be held liable for any actions related to the dissemination of false information, threats and calls provided by many articles of the Criminal Code of Ukraine and the Code of Administrative Offenses of Ukraine.

The fact that, under the new Law, the Prosecutor General has an exclusive power to enter into the Unified Register of pre-trial investigations information that may testify to a criminal offense by a people’s deputy of Ukraine, and to approve a petition (to allow a detention, to elect a preventive measure of holding under custody or house arrest, measures that, by law, restrict the rights and freedoms of a people’s deputy of Ukraine, the consideration of which is attributed to the powers of an investigating judge), greatly increases the likelihood of selective justice that is politically motivated, since in Ukraine, the Prosecutor General is appointed not through a professional selection and upon submission of a selection commission, but in a purely political way.

To some extent, prosecution of the people’s deputy of Ukraine may become difficult, because, as a rule, the investigating judge is obliged to consider a petition for permission to elect certain types of preventive measures, to apply other measures that restrict the rights and freedoms of the people’s deputy of Ukraine with the obligatory participation of the latter (except for covert investigative actions and search).

On the other hand, the positive innovation is that the Law allows the detention of a people’s deputy of Ukraine without the permission of the investigating judge, if the former was caught during the commission or immediately after the commission of: a) a grave or particularly grave crime related to the use of violence, or b) a crime that caused the death of a person. In addition, any investigative action, for which the law does not require the permission of the investigating judge, can be carried out without restrictions.