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Political Points for 26 February – 5 March 2018

05.03.2018

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. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua




In any country of the world, the Criminal Code, no matter how strict, has not yet eradicated neither corruption nor terrorism, nor poverty, nor judicial arbitrariness


1. CPLR expert opinion

The draft law on the improvement of specific provisions aimed at the inevitability of punishment for persons who committed corruption crimes No. 8077 dated 28 February, should be withdrawn by the author. On 5 March, the subject of legislative initiative has already done so upon our request.

2. Respective authorities counter-point/argument

This draft law, developed by the Prosecutor General’s Office, proposes to increase the punishment for certain corruption crimes and establish other grounds for criminal liability of judges for deliberately unlawful judicial decisions.

3. CPLR assessment of the authorities counter-point

The draft law creates conflicts in the Criminal Code, offends the independence of the court, while all sentences that may be imposed on judges for the adoption of their unlawful decisions must be abolished by higher courts due to the outright legal uncertainty of the law on criminal liability.

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

The draft law contradicts many decisions of the Constitutional Court of Ukraine and the European Court of Human Rights in relation to the obligation of the legislator to adhere to the principles of proportionality and legal certainty, as well as provisions of Articles 61, 65 of the current Criminal Code.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

In order to ensure the principle of inevitability of criminal liability for corruption crimes, it is necessary to abolish in the Criminal Code and the Criminal Procedure Code the provisions permitting the release of criminal liability  in connection with “active repentance”, “admitting to bail”, “change of circumstances”, “reconciliation with affected party”, as well as to determine the specific cases in which the judge is obliged to remove the suspect from office, to seize his/her property, to apply deprivation of the right to hold positions and special confiscation.



On March 4, the corruption scandal relating to O.O. Bogomolets National Medical University was widely publicized


1. CPLR expert opinion

Students of the NMU publicly argue that permanent corruption is going strong in this higher educational institution. Professors require illegitimate benefits for everything, from current assessments (remedy of unsatisfactory grades) to completion of modules, tests and examinations. Representatives of the NGO “Students’ Brotherhood” confirm this fact and add that the management constantly abuses its powers (including in terms of spending budget funds). According to the representatives of the Ministry of Health of Ukraine, the very fact of the high level of corruption combined with the low level of students’ knowledge led to the deliberate failure by the management to pass the official licensing testing (KROK), which would have to demonstrate the true knowledge level of medical students.

2. Respective authorities counter-point/argument

The management of the NMU has not yet commented on the situation with corruption in the institution, but argues that the obstruction of official licensing testing at the NMU was due to lack of budget funding.

3. CPLR assessment of the authorities counter-point

The argument of the NMU’s Rector sounds weighty, but the counter-argument of the MOH pointing out that all other medical universities have passed the testing with similar funding, is worth attention.

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

The Law “On Prevention of Corruption”, the Criminal Code and the Criminal Procedure Code of Ukraine require: 1) from the management of the NMU – to verify the publicized information and to take measures to stop the offenses and ensure bringing the defaulters to liability; 2) from the NACP – to carry out verification of information and transfer the collected materials to the law-enforcement agencies (in case of confirmation of the relevant facts); 3) from the law-enforcement agencies – to open criminal proceedings and start pre-trial investigation.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

If each of the above-mentioned state institutions fulfils its obligations imposed by law, then the corruption problem and the problem with the introduction of “KROK” in the NMU will be resolved.



Work on the draft law on the administrative procedure must be accelerated


1. CPLR expert opinion

On 22 February 2018, the first meeting of the working group at the Ministry of Justice of Ukraine aimed at the consideration of the draft law “On the administrative procedure” took place. The working group includes Ihor Koliushko, Head of the Board of the CPLR, and Victor Tymoshchuk, Deputy Head of the Board of the CPLR. The purpose of the working group is to revise the elaborated draft law on the general administrative procedure, which received a positive conclusion of SIGMA Program in the end of 2014. This law is critically important for Ukraine, as Ukrainian administrative bodies adopt administrative rulings under different rules and procedures and predominantly without involving the interested persons, that is, without taking into account their position. However, some members of the aforementioned working group are skeptical about the need for such a law, or they do not realize the essence of its key provisions. The Ministry of Justice of Ukraine had the opportunity to submit the draft law on the administrative procedure, which was elaborated and approved by SIGMA Program and the expert environment, back in 2015, but instead decided to review and improve it.

2. Respective authorities counter-point/argument

The Ministry of Justice of Ukraine is of the opinion that the law on the administrative procedure should be adopted by the end of 2018, as stipulated by the Action Plan for the implementation of Public Administration Reform Strategy in Ukraine for 2016-2020.

3. CPLR assessment of the authorities counter-point

For the last 10 years, the Center of Policy and Legal Reforms is supporting the necessity of adopting a law on the general administrative procedure in Ukraine. In our opinion, the working group at the Ministry does not work effectively and spends time discussing secondary issues. We do not see the reasons for delaying the submission of the draft law on the administrative procedure to the Verkhovna Rada until the third quarter of 2018. This means that the aforementioned draft law must be submitted to the Parliament before the summer of this year. Otherwise, due to lengthy parliamentary procedures and parliamentary holidays, its final adoption will not take place by the end of 2018 or the beginning of 2019.

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

The Action Plan for the implementation of Public Administration Reform Strategy in Ukraine for 2016-2020, approved by the Government Resolution dated 24 June 2016 No. 474, stipulates the approval of the draft law on the administrative procedure by the Government and its submission to the Parliament in the third quarter of 2018. In accordance with this Plan, adoption of this law should take place from the fourth quarter of 2018 to the first quarter of 2019.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The above-mentioned working group needs to operate more actively. Its work should be intense and effective. We urge not delaying the submission of the draft law on the administrative procedure to the Parliament and doing it before the third quarter of 2018, as envisaged by the Action Plan for the implementation of Public Administration Reform Strategy in Ukraine for 2016-2020.



The Constitutional Court ruled the "Language" law as unconstitutional


1. CPLR expert opinion

On February 28, the Constitutional Court of Ukraine adopted a Decision upon the case of a constitutional petition by 57 People’s Deputies of Ukraine regarding the compliance of the Law of Ukraine “On Basic Principles of the State Language Policy” of July 3, 2012, No. 5029-VI, as amended, with the Constitution of Ukraine (constitutionality). The Law of Ukraine “On Basic Principles of the State Language Policy” was ruled as unconstitutional in general due to the violation of the constitutional procedure for its adoption, which is a fairly positive factor.

One of the aspects of the violation of the procedure for adoption of the law, as found by the Constitutional Court, was the violation of the provision on personal voting, which, together with other violations of the procedure, caused a material violation of the procedure for the adoption of the law established by the Constitution.

In connection with the decision of the Constitutional Court, the Law of Ukraine “On Basic Principles of the State Language Policy” has expired since the adoption of the decision of the CCU. Therefore, there is a legal vacuum around the language issue today. It requires prompt reaction of the Verkhovna Rada in the form of adoption of a new legislation.

2.   Respective authorities counter-point/argument

“The decision of the Constitutional Court opens an opportunity for us to consider and adopt a new language law,” Andriy Parubiy said on March 1, 2018.

3.   CPLR assessment of the authorities counter-point

In terms of adopting legislation, including the language law, the Verkhovna Rada does not depend on the decisions of the Constitutional Court. It is bound by legal positions of the Constitutional Court and can not adopt unconstitutional laws, but the Verkhovna Rada could pass a new “Language” law even before the decision on the unconstitutionality of the “Language” law was adopted.

In particular, four draft laws were registered in the Parliament:  No. 5556, No. 5669, No. 5670, No. 5670-d.

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

Until the adoption of a new “Language” law, only Article 10 of the Constitution of Ukraine, the provisions of which are sufficiently wide, will be in force in Ukraine, and this will create problems for individuals and legal entities in everyday matters, for example, regarding the language of advertising.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The Verkhovna Rada of Ukraine must adopt a new “Language” law as soon as possible, in compliance with Article 10 of the Constitution of Ukraine and as prescribed by the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.