Political Points for 28 October – 4 November 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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- President appointed a new competition to select a member of the High Council of Justice
- Investigation of the "Maidan cases" may be suspended
- Summary of the Conclusion on the draft Law of Ukraine «On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Ukraine on Administrative Procedure to improve the review of court decisions in appeal and cassation procedures» (No. 2314)
President appointed a new competition to select a member of the High Council of Justice
1. CPLR expert opinion
On June 10, the President issued a decree on the selection of candidates for the appointment as members of the High Council of Justice (HCJ).
Prior to issuing this decree, the President Zelensky legally cancelled the decrees of his predecessor on the appointment of two members of the HCJ and appointed a new competition, which was subject to analysis by the CPLR experts (political points of June 10-17).
In early September, the commission set up by the President recommended six candidates for appointment, of whom he had to nominate two. Among the recommended candidates, on September 30, the President appointed only O. Blazhivska as the HCJ member. For a long time, the results of the President’s consideration of the other recommended candidates were not known, although most of them were worthy of holding office. Now the President has decided not to appoint anyone else and announced another competitive selection for one position, establishing a new competition committee.
2. Respective authorities counter-point/argument
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3. CPLR assessment of the authorities counter-point
The Law of Ukraine “On the High Council of Justice” stipulates that the President may appoint the members of the HCJ by his quota (2) only through the competition. At the same time, no obligations of the President to motivate his decision to reject the proposed candidates are specified, and there are no restrictions on the appointment of an unlimited number of competitions. That is, the President may set as many competitions as necessary to fill his HCJ quota.
However, such an interpretation of the law is contrary to its spirit. Establishment of a legislative requirement for the appointment of HCJ members on the basis of the competitive selection is intended to ensure the impartiality of the President in exercising his discretionary powers and to maximize the independence of the designated HCJ member from the subject of appointment. Instead, the situation in which the President ignores the decision of the competition commission he established and appoints a new competition is contrary to this legal preventive mechanism. In fact, under this approach, the President may nominate an unlimited number of competitive selections until there is a person he likes among the recommended candidates. In such circumstances, the essence of the competitive procedure is completely offset, and the appointment of a HCJ member becomes a political procedure rather than a competitive one.
4. Related legislation/instructions which require the authorities act in a certain manner
Pursuant to Part 8 of Article 9 of the Law of Ukraine “On the High Council of Justice”, the announcement of an open competition is posted on the Official Website of the President for the President’s appointment of a HCJ Member. Part 9 of the said Article stipulates that the Procedure for holding a competition shall be approved by the President.
Part 1 of Article 16 of this Law stipulates that the President issues a decree appointing members of the HCJ based on the results of the competitive selection.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
First of all, the President should cancel the newly initiated competition, as well as consider the other five candidates recommended by the selection committee and, if there are serious reservations, justify his refusal to appoint these persons as HCJ members. Only then can a new competition be held.
However, the current situation indicated the need to amend the Law on the High Council of Justice and to introduce restrictions on the President’s discretionary powers, in particular because of the lack of mandatory motivation for the rejection of proposed candidates in the event that none of them were supported.
Investigation of the "Maidan cases" may be suspended
1. CPLR expert opinion
On October 21, 2019, the Department for Procedural Guidance in Criminal Prosecution of Crimes Committed in Connection with the Mass Protests in 2013-2014 was established in the Prosecutor General’s Office. Later, the Prosecutor General appointed Victor Mysiaka the Head of this Department.
At the same time, an Advisory group of lawyers representing victims and relatives of people killed on the Maidan during the Revolution of Dignity strongly condemned the Prosecutor General’s choice and accused Viktor Mysiaka of obstructing investigations of crimes against protesters in his previous position in a similar division.
In addition, according to the Director of the State Bureau of Investigation, the investigation of “Maidan cases” may be suspended, since former investigators of the Prosecutor General’s Office cannot be automatically transferred to the SBI; the SBI’s investigators should study a large number of materials in the “Maidan cases” before proceeding with the investigation; the SBI lacks staff to effectively investigate these cases. In view of this, the Director of the SBI called on the Parliament to amend legislation that would abolish the maximum number of SBI employees and introduce a simplified competitive procedure (interview only) for investigators of the Prosecutor General’s Office investigating “Maidan cases”.
The legislative solution to the problems outlined by the Director of the SBI should have been approved by Parliament at least a year ago. After all, according to paragraph 9 of the Transitional Provisions of the Constitution of Ukraine, the prosecutor’s office continues to perform the function of pre-trial investigation prior to the commencement of the bodies to which the respective functions will be delegated by law. These powers were transferred to the SBI on the basis of the CPC in 2012. However, since the Bureau began its work only on November 27, 2018, the said provisions of the Constitution became effective on that day.
At the same time, the Director of SBI does not substantiate the proposal to abolish the maximum number of SBI employees, and the use of “Maidan cases” in this aspect is an arbitrary argument.
2. Respective authorities counter-point/argument
The State Bureau of Investigation has released a statement of the Director that if the proposed amendments to the law are not approved, the investigation of “Maidan cases” will be suspended.
3. CPLR assessment of the authorities counter-point
The SBI’s proposal to introduce a simplified procedure for the appointment of former Prosecutor General’s Office investigators investigating “Maidan cases” to the SBI cannot be welcomed. However, the cancellation of the maximum number of SBI’s employees is unjustified.
4. Related legislation/instructions which require the authorities act in a certain manner
Constitution of Ukraine, the Criminal Procedure Code, the Law of Ukraine “On the State Bureau of Investigation”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
Parliament should introduce as soon as possible a simplified procedure for appointing former Prosecutor General’s Investigators investigating “Maidan cases” to the SBI, and increase the maximum number of the SBI staff if the SBI leadership provides adequate justification.
Summary of the Conclusion on the draft Law of Ukraine «On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Ukraine on Administrative Procedure to improve the review of court decisions in appeal and cassation procedures» (No. 2314)
In general, the draft law contains positive novels.
It is necessary to support:
- the intention to reduce the burden on the cassation instance;
- the imposition of an obligation on the court of appeal or cassation to refer the case to a competent court of first instance, if the case is to be heard under other rules of justice;
- establishing a rule to prevent abuse of the right of dismissal of a judge.
At the same time, we propose to finalize the draft law in the following areas:
- the rules of admissibility of cassation complaints in different types of judicial proceedings should be simplified and unified (in the draft law these rules are formulated too confusingly and casuistically);
- the practice of bringing judges of the courts of appeal to disciplinary responsibility as a ground for cassation appeal should be abandoned. It is advisable to determine the abuse of judges when deciding whether to rule on exceptional circumstances in the event of confirmation of such abuse not only by a court order but also by a decision of a disciplinary body;
- instead of narrowing the possibilities of the courts to take action to enforce a lawsuit, the preference should be given to disciplinary and even criminal justice measures to combat abuse by judges;
- in the case of competition between the rules of commercial litigation on exclusive jurisdiction in real estate disputes, the preference should be given to the rule of considering the case at the location of the real estate, and not of the defendant – the special subject.
Provisions of the draft will only apply to new cassation appeals filed after this law enters into force. This is a correct way, as the law should not be given a retroactive effect. However, the draft law will not allow in the near future to address the problem of overloading of the Supreme Court as a cassation instance (due to the large number of remaining cases), and therefore does not give an opportunity to substantiate the need for a significant reduction of its composition now.
Moreover, the draft law would exacerbate this problem. The following figures can illustrate the large scale of remaining cases: if the Supreme Court had stopped accepting new cassation appeals, the current Grand Chamber would need approximately two to three months to review the remainder of the cases, the Administrative Court of Cassation – nine months, the Economic Court of Cassation – two months, the Criminal Court of Cassation – seven months, the Civil Court of Cassation – ten months.