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Political Points for 27 January – 4 February 2020

04.02.2020

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




The Verkhovna Rada of Ukraine preliminary approved the Draft Law on constitutional amendment to reduce the number of People's Deputies of Ukraine without taking into account the legal standpoint of the Constitutional Court of Ukraine


1. Event

On February 4, 2020, the Verkhovna Rada of Ukraine preliminary approved the Draft Law on amending Articles 76 and 77 of the Constitution of Ukraine (concerning the reduction of the constitutional composition of the Verkhovna Rada of Ukraine and the establishment of the proportional electoral system) (Reg. No. 1017). Despite the fact that Draft Law received a positive opinion of the Constitutional Court of Ukraine, Parliament did not take into account the legal standpoint of the Constitutional Court of Ukraine in the Opinion of December 16, 2019 regarding the text of the Draft Law. In particular, the Constitutional Court of Ukraine highlighted the following:

  •  the Constitution of Ukraine shall establish clear and unambiguous provisions on universal, equal and direct suffrage by secret ballot for the parliamentary election;
  •  the type of electoral system, its features and peculiarities are the matter of political expediency, that is why fixing the type of electoral system in the Constitution of Ukraine is not mandatory;
  •  the reduction of the constitutional composition of the Verkhovna Rada of Ukraine should be applied together with correction of other provisions of the Constriction of Ukraine determining a certain (specific) number of People’s Deputies of Ukraine; system approach towards all relevant provisions of the Constitution of Ukraine should be considered;
  •  there is a collision between proposed Paragraph 17 of Section XV “Transitional Provisions” of the Constitution of Ukraine and Article 90 (1) of the Constitution of Ukraine on the matter of termination of powers of the Verkhovna Rada of Ukraine. The application of above-mentioned Paragraph 17 violates the constitutional principle of time continuity of legislative power.

2. CPLR assessment

The CPLR has repeatedly highlighted the binding nature of the legal standpoint of the Constitutional Court of Ukraine for the Verkhovna Rada of Ukraine on the matter of constitutional amendment process. The proposal of Paragraph 17 of Section XV “Transitional Provisions” of the Constitution of Ukraine is dangerous for the stability of the constitutional order of Ukraine, since the risk of no parliament shall be effective in an indefinite time period, which threatens the national security of the state and can lead to violation of human right. In addition, changing the total number of People’s Deputies of Ukraine requires correction of all other provisions of the Constitution of Ukraine that are directly related to the quantitative composition of the Verkhovna Rada of Ukraine (in particular, the number of People’s Deputies of Ukraine who have the right to apply to the Constitutional Court of Ukraine with a constitutional appeal, which has not to be modified by the Draft Law).

Therefore, the preliminary approval of this Draft Law in its current text version without taking into account the legal standpoint of the Constitutional Court of Ukraine is an improper way of constitutional revision, which leads to the collisions in the text of the Constitution, unjustified reduction of the number of People’s Deputies of Ukraine. In turn, this situation leads to a deterioration of the constitutional culture in Ukraine, which is, by the way, extremely low today.



Government proposes to harmonize the law on judicial system with anti-corruption legislation, however sone negative side effects are possible


1. Event

On January 28, the Cabinet of Ministers submitted to the Parliament a draft law “On Amendments to the Law of Ukraine “On Judiciary and Status of Judges” in connection with the adoption of the Law of Ukraine “On Prevention of Corruption”.

In particular, the draft law established that candidates for the members of The High Qualification Commission of Judges of Ukraine and for the post of a judge will inform the leadership of The High Qualification Commission of Judges of Ukraine and the relevant court about close persons who work in this body. It should prevent the work of such persons under direct supervision of a candidate.

It is also proposed to exclude from the reasons of a judge’s disciplinary responsibility the delay in submitting an electronic declaration and reporting inaccurate information therein. Instead, it will remain possible to bring a judge to disciplinary responsibility only after he or she has been punished for such actions in an administrative offense case.

2. CPLR assessment

Bringing the basic terms of the Law of Ukraine “On Judiciary and the Status of Judges” and the procedure of special inspection in line with the Law of Ukraine “On Prevention of Corruption”  does not raise any significant reservations.

Regarding the reduction of the reasons for bringing judges to disciplinary responsibility, there is a risk of judges avoiding responsibility for not submitting an electronic declaration or submitting it with delay and deliberately misrepresenting or deliberately omitting information specified by law in the electronic declaration.

Under different conditions (the size of the discrepancy between the declared and actual data, etc.), such acts contain signs of an administrative offense or a crime.

However, if a judge has committed a crime and the conviction against him has entered into force, then this cannot be seen as a  ground for bringing him to disciplinary responsibility, as it has the effect of termination of his powers (paragraph 5 of Article 7, Article 126 of the Constitution of Ukraine).

In other words, a judge will be held liable to disciplinary action only when the court finds him guilty of committing an administrative offense related to corruption.

However, in practice, this can lead to complete avoidance of even disciplinary responsibility by a judge. Сonsidering such categories of administrative offenses, courts often close proceedings because of violations of the protocol drafting procedure, the expiry of the time-limits for bringing them to justice, and sometimes – due to the insignificance of action. This can sometimes be the result of a bail bond.

According to CPLR experts, disciplinary and administrative responsibility of a judge are independent procedures, they have different tasks, subject matter and consequences (penalties). That is why it is better to refrain from narrowing the grounds of disciplinary responsibility of a judge.



CPLR Reports ranked in 2019 Global Go To Think Tank Index Report


Three reports prepared with the participation of the CPLR experts were included in 2019 Global Go To Think Tank Index Report in the nomination “Best Policy Study-Report”.

1. Shadow Report on Evaluating the Effectiveness of State Anti-Corruption Policy Implementation

This report presents the results of public evaluation of the effectiveness of implementing state anti-corruption policy for 2017–2018. This publication was prepared with the support of the International Renaissance Foundation. Mykola Khavroniuk, Oleksandr Kalitenko, Dmytro Kalmykov, Ihor Koliushko, Oleksandr Lemenov, Borys Malyshev, Anton Marchuk, Robert Sivers, Victor Tymoshchuk worked on it.

Download
Executive Summary of the Shadow Report in English.

2Instruments for strengthening confidence in the courts in Ukraine

The goal of this research paper is to facilitate an informed discussion with policymakers on improving confidence in Ukrainian courts. The research paper has been prepared based on analytical desk research; discussions with practitioners from the justice sectors in Ukraine and the Netherlands. It is published with the support of Open Society Foundation and Centre for Economic Strategy. Roman Kuybida, Maksym Sereda, Mykhaylo Zhernakov worked on it.

Download
Report in English.

Roadmap of Reforms for 2019–2023

Сivil society coalition “Reanimation Package of Reforms” developed a Roadmap of Reforms – an updated expert vision of the priorities for reforming and developing the country for 2019–2023 in 21 areas of public policy. It is published with the support of European Union. The CPLR experts Ihor Koliushko, Julia Kyrychenko, Bohdan Bondarenko, Roman Kuybida, Oleksandr Banchuk, Anton Marchuk, Mykola Khavroniuk, Viktor Tymoshchuk participated in the preparation of the document.

Download
Roadmap in English

Download «2019 Global Go to Think Tank Index Report».