Political Points for 17–24 June 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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- Constitutional Court adopted a Decision in relation to the Decree on early termination of powers of the Parliament
- The HCJ held a discussion of the Annual Report on the State of Independence of Judges in Ukraine for 2018 against the background of the scandal regarding the possible intervention of the Presidential Administration in the work of the judicial system
- The "Servant of the People" (Sluha Narodu) party presented its action plan to combat corruption
Constitutional Court adopted a Decision in relation to the Decree on early termination of powers of the Parliament
1. CPLR expert opinion:
On June 20, the Constitutional Court of Ukraine adopted a Decision in the case under the constitutional petition of 62 people’s deputies of Ukraine on compliance with the Constitution of Ukraine (constitutionality) of the Decree of the President of Ukraine “On Early Termination of Powers of the Verkhovna Rada of Ukraine and the Appointment of Early Elections” dated May 21, 2019, No. 303/2019.
2. Respective authorities counter-point/argument:
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3. CPLR assessment of the authorities counter-point
The decision of the CCU is extremely important in terms of its impact on the socio-political situation.
The CCU adopted its Decision before the day of voting, preventing the possibility of establishing unconstitutionality of the presidential decision on early termination of parliamentary powers and the appointment of early elections, which would undermine the lawfulness and, consequently, the legitimacy of the next convocation of Parliament.
The CCU complied with the one-month deadline for urgent proceedings, which was also extremely important in this context.
It is worth mentioning that the CCU Secretariat quickly communicated the main provisions of the Decision, even before the official announcement, which is of paramount importance in the conditions of the Ukrainian information space and can only be assessed positively.
4. Related legislation/instructions which require the authorities act in a certain manner:
The Constitution of Ukraine, the Law of Ukraine “On the Constitutional Court of Ukraine”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine:
The Constitutional Court of Ukraine should not avoid solving complex “political” cases and in the future consider them within the established terms.
The HCJ held a discussion of the Annual Report on the State of Independence of Judges in Ukraine for 2018 against the background of the scandal regarding the possible intervention of the Presidential Administration in the work of the judicial system
1. CPLR expert opinion:
On June 21, a professional discussion was held in Kyiv on the Annual Report on the State of Independence of Judges in Ukraine for 2018, issued by the High Council of Justice (hereinafter – the HCJ, Council) in April 2019. Earlier, the CPLR experts published an Alternative Report on the independence of the judicial system in Ukraine, which concerned the events that took place in the judicial area, and provided their own, critical evaluation of conclusions, publications and opinions of the HCJ. In particular, the experts noted that the report lacks information about threats to the independence of judges, which are generated by the judicial system itself.
Discussion of the Annual Report took place against the backdrop of a scandal regarding the possible intervention of the new administration of the President of Ukraine in the work of the judicial system. Thus, the Chairman of the Council of Judges of Ukraine Oleh Tkachuk stated: “On the eve of this day, information from judges from different regions of Ukraine, members of the Council of Judges of Ukraine began to arrive tonight and in the morning, that the chairmen of the courts received telephone calls from the Administration of the President of Ukraine requiring to order the judges delegated from these courts to the Council of Judges of Ukraine to disrupt the meeting of the Council of Judges. The situation indicated is of great concern and in no way consistent with the principles of democracy, it shows a real threat to the judiciary and may undermine its credibility as an impartial arbiter in social, political, and economic disputes.”
2. Respective authorities counter-point/argument:
At the Presidential Administration, the words of the Chairman of the Council of Judges of Ukraine are denied. “What Tkachuk said is a statement by a group of people who have taken control of the judicial system in the past and now are trying to keep it under control. Last week, the president said that we will review the judicial reform and, obviously, people felt some fear of losing control”, – said Ruslan Ryaboshapka, Deputy Head of the Presidential Administration.
In addition, there is widespread information in the media about the dissatisfaction of some members of the Council of Judges of Ukraine with the work of this body. According to Vadym Butenko, Deputy Chairman of the Council of Judges of Ukraine, the Council of Judges of Ukraine practically does not deal with the problems of the courts of first instance, and all the successes of the reform are limited to the creation of the Supreme Court and the High Anticorruption Court. In his opinion, a new stage in the reform should begin with the replacement of the Chairman of the Council of Judges of Ukraine, who ignores the problems of the courts of first instance.
3. CPLR assessment of the authorities counter-point
In the opinion of the CPLR experts, press reports on possible interference of officials in the work of the judicial system confirm fears of continued dependence of the judicial system on political influences. Under the presidency of Viktor Yanukovych, the judicial system was under the full control of political power, which was provided through the controlled bodies of judicial self-governance. Despite significant legislative changes aimed at strengthening the independence of the judicial system, the control of political power over the judicial system remained during the presidency of Petro Poroshenko. The current report of the Chairman of the Council of Judges of Ukraine, if true, may indicate that the new administration is trying to re-subordinate the judicial system to its own interests, following the traditions of its predecessors.
4. Related legislation/instructions which require the authorities act in a certain manner:
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine:
It is necessary to review the procedure for the implementation by representatives of the professional community of their right to vote at the congress of judges by introducing a direct ballot for candidates to positions in bodies of judicial governance and self-governance using modern information technologies. Such a step in the event of implementation will complicate political control over the election of judges to the bodies of judicial governance and self-governance. It is also advisable to introduce control over compliance with integrity criteria for the candidates to the positions in the judicial governance bodies, and to ensure the participation of civil society representatives with impeccable reputation in these bodies.
The "Servant of the People" (Sluha Narodu) party presented its action plan to combat corruption
1. CPLR expert opinion:
On June 18, the “Servant of the People” party announced in its Telegram channel a number of steps to eradicate systemic corruption in Ukraine, which include the creation of a fully-fledged national e-governance system; radical cleaning and reloading of the prosecutor’s office; ensuring the real independence of anti-corruption bodies; transfer of the maximum number of public services into online format; strengthening of responsibility for corruption crimes and introduction of compulsory confiscation of property of corrupt officials; creation of a witness protection system and introduction of a monetary compensation system for citizens for the revealed corruption; adoption of modern legislation on the temporary investigative committees of the Verkhovna Rada, which will allow the prosecution of corrupt and incompetent officials; grounding of any business investigation on the principle of the presumption of integrity.
2. Respective authorities counter-point/argument
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3. CPLR assessment of the authorities counter-point
As regards the steps on combating corruption announced by the party, which, according to sociological surveys, has the highest support rates before the extraordinary parliamentary elections, although they have a correct vector, but they seem to be selective, incomplete and unsystematic. They lack specificity and unambiguousness.
Ensuring the independence of anti-corruption bodies is an important element for significant enhancement of their efficiency and effectiveness, but it is equally important to build institutional capacity and strengthen their powers.
In the context of anticorruption policy, it is important to ensure protection not only of witnesses in criminal proceedings, but also of corruption revealers who are not always participants in criminal proceedings. The financial reward should be one of the elements of encouraging reports of known cases of corruption and corruption-related offenses.
Some of the proposed measures have already been implemented: for example, the Criminal Code provides for sanctions in the form of confiscation and special confiscation. The mechanism of civil confiscation of unjustified assets is also provided for by law, although it is not currently effective. Probably, the party’s message is about improving the civil asset confiscation procedure so that it becomes an effective practical tool.
Some issues are not clear. For example, it is unclear what is “based on the principle of the presumption of integrity” in the context of business investigations. These points indicate the need for clearing and “reloading” the prosecutor’s office. However, it is unclear what will “reloading” the prosecutor’s office mean in practice: will this include the introduction of a competitive selection for the administrative office of the Prosecutor General? Is it about creating a compact office of the Prosecutor General in opposition to the existing Prosecutor’s General Office? Should we expect some changes in the work of the Prosecutors’ Qualifications and Disciplinary Commission and the Prosecutors’ Council?
Measures to transfer services online or to create a fully-fledged e-governance system are really the elements that will eliminate some of the preconditions for corruption at the domestic and administrative levels, however, these measures are unlikely to be crucial for counteracting political, high-level corruption. In addition, despite the unequivocal recognition of the benefits of IT tools in preventing corruption, these very IT tools can themselves be the subject of abuse, which should also be effectively countered.
4. Related legislation/instructions which require the authorities act in a certain manner
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5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
As a leader of the election race, the party should publish a more detailed and concrete program in relation to anti-corruption measures. The latter should be more systematic and evenly cover the aspects of the corruption prevention and punishment for corruption offences. More attention needs to be given to deeper transformation of the public sector, which can eliminate a significant amount of corruption risks. Digitalization of the public service is only one of such areas.