Political Points for 26 March – 2 April 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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The Public Control Council of the SBI was established in violation of the prescribed procedures
1. CPLR expert opinion
On March 30, a constituent assembly took place, when 15 members of the SBI Public Control Council were elected from 99 persons delegated by public organizations.
The importance of this body is that it exercises public control over the SBI activities; in addition, it delegates 3 persons to the Disciplinary Commission of the SBI, which will make up the majority there.
The Council appeared to be occupied mainly by organizations that do not carry out active advocacy activities and exist only “on paper”, and are also associated with representatives of political parties, in particular the “People’s Front”.
The Council did not include any delegated expert, who insisted on the creation of the SBI in recent years and monitored the establishment of this body.
During the constituent assembly, there were procedural violations, in particular, unregistered individual delegates from public organizations, as well as registered delegates who were abroad on that day.
These facts will form the basis for filing an administrative claim to a court.
2. Respective authorities counter-point/argument
The SBI leadership does not consider the Public Control Council to be of crucial importance to the Bureau, and therefore is not seriously concerned about this issue. The Council is established in accordance with general rules for the formation of public councils at central executive authorities.
3. CPLR assessment of the authorities counter-point
The creation of the Public Control Council took place in accordance with the general rules of the CMU Resolution “On Ensuring Public Participation in the Formation and Implementation of State Policy”, which was adopted back on November 3, 2010 and is obsolescent. This procedure does not contain preventive mechanisms against “raider hijackings” of public councils, as demonstrated by the events of March 30th.
4. Related legislation/instructions which require the authorities act in a certain manner
The Law of Ukraine “On the State Bureau of Investigations”, CMU Resolution “Issues of the Public Control Council at the State Bureau of Investigations” of December 20, 2017 No. 1086
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The SBI leadership should announce a new selection to the Public Control Council without waiting for lawsuits. Further on, this procedure should provide that representatives of public organizations that did not carry out active advocacy activities are not allowed to participate in the formation of the Council.
Alternatively, it is advisable for the SBI leadership to raise before the Government the issue of changing the formation procedure of the PCC at the SBI. The formation procedure of the PCC at the NABU, which provides for on-line voting for candidates, can be taken as an example.
Selection of the Constitutional Court judges in the Parliament
1. CPLR expert opinion
On Wednesday, April 4, the issue of the selection of the Constitutional Court judges may be considered in the Committee of the Verkhovna Rada of Ukraine on Legal Policy and Justice (hereinafter – the Committee). This information has been received from the sidelines of the Verkhovna Rada, because this issue is not included in the agenda of the Committee meeting, published on the website of the Committee.
The Verkhovna Rada delayed the appointment of two judges of the Constitutional Court at its own quota, while the Congress of Judges and the President made their appointments (with a delay). The situation is becoming worse, given that the selection procedure in the Verkhovna Rada violates the Constitution of Ukraine, since according to the Decision of the Committee of 16 November 2017, the candidates who submitted their candidacy independently were not allowed to participate in the selection and only the representatives of parliamentary factions were admitted.
2. Respective authorities counter-point/argument
In the opinion of the Committee, since Article 2084 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” provides that candidates’ proposals are submitted by parliamentary factions (deputy groups), groups of non-factional deputies, the number of which should be not less than the minimum number of a deputy group, “self-nominated” candidates violated the established procedure for the submission of documents, and therefore their participation in the selection was declined.
3. CPLR assessment of the authorities counter-point
The Law of Ukraine “On the Constitutional Court of Ukraine” basically eliminated the competitive selection of judges of the Constitutional Court and increased political influence on the execution by the Verkhovna Rada of its personnel powers.
The Final Provisions of the Law of Ukraine “On the Constitutional Court of Ukraine” (hereinafter referred to as the Law) amended the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” (hereinafter – the Rules of Procedure), which was supplemented by Article 208 (Procedure for appointing judges of the Constitutional Court of Ukraine).
In general, the selection procedure for judges of the Constitutional Court, as defined in the Rules of Procedure, should be in line with the Constitution of Ukraine and the general logic of the Law, as the selection procedure is established by a law as a special act, and the Rules of Procedure should regulate the procedural aspects of the work of the Verkhovna Rada within the procedure prescribed by the law. But it turned out that the Verkhovna Rada as the legislator, has established new rules of the game for itself in the Rules of Procedure.
According to Art. 2084 of the Rules of Procedure, a right to propose a candidate for a position of a judge of the Constitutional Court of Ukraine may be exercised by a parliamentary faction (deputy group), a non-factional people’s deputies group, the number of which is not less than the quantitative composition of the smallest deputy group. These proposals are submitted to the Committee on Legal Policy and Justice. Therefore, the decision was taken by the Parliament that candidates can not nominate themselves independently. However, this is contrary to Art. 12 of the Law regulating the basic principles for the selection of candidates for the position of a judge of the Constitutional Court.
In accordance with Part 4 of Art. 12 of the Law, the Verkhovna Rada Committee on Legal Policy and Justice accepts applications from individuals who have indicated their intention to hold office as a judge of the Constitutional Court and meet the requirements established by the Constitution of Ukraine. In accordance with this provision, candidates are entitled to independently apply to the selection procedure.
Therefore, there is a conflict between two legal norms. These norms are of equal legal force, adopted simultaneously, and both regulate the procedure for the selection of judges of the Constitutional Court. In addition, there are justified doubts as to the constitutionality of the provisions of the Rules of Procedure restricting the right of independent candidates for the position of a judge of the CCU to take part in the competition. Thus, Article 148 of the Constitution of Ukraine establishes the same requirements for the judges of the CCU, regardless of the subject of appointment, nor does it contain provisions on the mandatory support of such a candidate by a deputy faction (deputy group), a non-factional people’s deputies group, the number of which is not less than quantitative composition of the smallest deputy group.
Consequently, candidates have the right to submit applications for participation in the selection procedure independently without the consent of deputy factions, groups, non-factional groups, in accordance with Article 148 of the Constitution of Ukraine and part 4 of Article 12 of the Law of Ukraine “On the Constitutional Court”. This will be in line with the Constitution and will allow independent candidates to participate in this selection procedure.
4. Related legislation/instructions which require the authorities act in a certain manner
According to Art. 148 of the Constitution of Ukraine, the selection of judges of the Constitutional Court is carried out on a competitive basis. Consequently, the provisions of all legislative acts regulating the selection of judges of the Constitutional Court must comply with Art. 148 of the Constitution of Ukraine. Providing the exclusive possibility to nominate candidates for a position of a judge of the Constitutional Court to parliamentary factions (deputy groups) and non-factional people’s deputies groups will increase political influence on the judges of the Constitutional Court yet at the time of their appointment. It also reduces the possibility of conducting the selection of judges of the Constitutional Court on a competitive basis, which contradicts Art. 148 of the Constitution of Ukraine.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The Committee of the Verkhovna Rada of Ukraine on Legal Policy and Justice should restart the selection procedure of the Constitutional Court judges and allow the candidates who have applied independently to participate. If the appointment of judges takes place under the current procedure, serious doubts will arise as to the constitutionality of such appointment.