Political Points for 2 – 9 July 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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CPLR calls on to resolve problems caused by the poor preparation of certain provisions of the Law on the Anticorruption Court
1. CPLR expert opinion
In the Parliament, the draft law on amendments to the Law “On the Judicial System and Status of Judges” is being prepared for the second reading in connection with the adoption of the Law “On the Supreme Anticorruption Court” (No. 7441). This draft law makes it possible to resolve some problems caused by poor-quality preparation of the law on the Anticorruption court, if the relevant amendments of the people’s deputies will be supported.
In particular, the following threats exist for the independent review of top-level corruption cases:
- cases of high-level corruption, which are already considered by the courts, are not directed to the Supreme Anticorruption Court, even in the appellate instance;
- the cassation instance for such cases will be the Supreme Court, the current composition of which was elected in accordance with the general procedure, without taking into account anti-corruption specialization; the general procedure was rather manipulative.
Also, the current Law creates serious problems for the procedure of selecting the Anticorruption Court judges: international experts will be able to participate in the evaluation of integrity, but not professional ethics of candidates, and the deadline for such an evaluation is just one month.
Draft law No. 7441 does not address these shortcomings. In addition, there are provisions in this draft that are in no way conditioned by the adoption of the Law “On the Supreme Anticorruption Court”, but may paralyze the work of the Public Council of Integrity.
2. Respective authorities counter-point/argument
International partners of Ukraine, in particular, the International Monetary Fund and the US Department of State, as well as representatives of civil society, including the Centre of Policy and Legal Reforms and the Reanimation Package of Reforms, pointed to the above-mentioned problems.
The Speaker of the Ukrainian Parliament agreed with the possibility of solving the problem of appeal review by means of the draft law No. 7441. Ukrainian authorities have not yet responded publicly to other issues raised. However, some people’s deputies of Ukraine submitted the necessary proposals to the draft law No 7441 to address these problems.
3. CPLR assessment of the authorities counter-point
The CPLR supports the creation of an independent system of judicial review of top-level corruption cases, in particular by introducing necessary amendments through the adoption of the draft law No. 7441 with the relevant amendments of the people’s deputies.
4. Related legislation/instructions which require the authorities act in a certain manner.
On June 7, the Parliament passed the Law “On the Supreme Anticorruption Court”. On June 11, the President signed it and the Law came into force. On June 21, the Law “On the Establishment of the Supreme Anticorruption Court” was adopted. In such a way, a legal basis for the beginning of the formation of the judges of this court was created. However, the legislative framework on these issues needs to be improved.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.
The CPLR calls on the Verkhovna Rada of Ukraine Committee on Legal Policy and Justice to support the amendments of the people’s deputies during preparation for the second reading of the draft Law No. 7441, which:
- provide for an appeal review by the Supreme Anticorruption Court of even those top-level corruption cases, the proceedings whereon were initiated by local courts in the first instance;
- introduce the Anticorruption Chamber in the Supreme Court for cassation review of such cases, while the selection of its judges will be conducted with the participation of international experts;
- extend the competence of international experts also to the evaluation of the professional ethics of candidates by establishing a realistic deadline for assessing questionable candidates;
- remove barriers to the activity of the Public Council of Integrity for participation in the qualification assessment of all judges.
The President signed the Law on the Disciplinary Statute of the National Police
1. CPLR expert opinion
On the day of celebrating the third anniversary of the police formation (July 4th), the President of Ukraine signed the Disciplinary Statute of the National Police, passed by the Parliament almost 4 months ago (March 15). This Law is intended to replace the outdated Statute of the Ministry of Internal Affairs dated 2006.
2. Respective authorities counter-point/argument
The draft Law was prepared by the Ministry of Internal Affairs and submitted by the Government. However, the draft law was successfully improved before the second reading in the Parliament after sharp criticism from the experts of the CPLR and the calls for the necessity of granting to police officers of the rights guaranteed by the Constitution.
3. CPLR assessment of the authorities counter-point
The importance of this Law is that it allows the police to be protected from unreasonable prosecution or dismissal from the police. The Statute sets out an exhaustive list of duties for the violations of which the police officers will be prosecuted, guarantees the rights of the police officers to access the materials of a disciplinary case, to involve a lawyer, and also provides for an exclusive commission procedure for an official investigation.
At the same time, the Statute has no clear definition of a disciplinary offense and violations of professional discipline as grounds for disciplinary liability of a police officer, which may lead to abuses in this procedure. There is also no obligation to involve public representatives in the activities of disciplinary commissions.
4. Related legislation/instructions which require the authorities act in a certain manner.
Subsequently, the Disciplinary Statute of the National Police will require improvements as regards the recognition of a disciplinary offense as the sole basis for disciplinary liability of a police officer, as well as the mandatory participation of public representatives in the work of disciplinary commissions.