What are you interested in?

Political Points for 29 August – 5 September 2019

05.09.2019

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. 

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




Draft Law on Amending the Constitution of Ukraine (on the abolition of the lawyer’s monopoly)


1. CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada of Ukraine the draft Law No.1013 “On Amending to the Constitution of Ukraine (on the Abolition of the Lawyer’s Monopoly)”. The draft was determined to be urgent.

The draft law No. 1013 proposes to amend Article 131-2 of the Constitution of Ukraine, leaving the lawyer’s monopoly solely for the protection of persons against criminal prosecution.

We would like to remind that this article have been amended in 2016. Amendments were driven by the need to increase the level of service delivery through the introduction of a certain quality threshold for access to the legal profession, the professional level and the barriers to professional misconduct by lawyers.

The cost of court representation services foreseeably increased. Apparently, this circumstance was a prerequisite for introducing such a draft amendment to the Constitution of Ukraine by the President of Ukraine.

The CPLR experts did not support the introduction of a lawyer’s monopoly during the judicial reform in 2016 due to the anticipated problems of providing legal assistance to people as a result of the increased cost of lawyer services, and the lack of lawyers in rural areas.

2. Respective authorities counter-point/argument

According to the Explanatory Note, the draft law proposes to abolish the lawyer’s monopoly, namely to exclude the provisions of part four of Article 131-2 of the Constitution of Ukraine, according to which exclusively the lawyer shall represent another person in court. The purpose of the proposed amendments is to ensure everyone’s right for professional legal assistance by abolishing the lawyer’s monopoly on providing such assistance.

3. CPLR assessment of the authorities counter-point

At the same time, in view of the logic of the 2016 constitutional reform, the development of the institute of advocacy through the principle of legal certainty (legitimacy of expectations), such a diametrically opposite development of the regulation of relations in this area is debatable. Probably, it makes sense to consider extending the list of exceptions to the general rule on the lawyer’s monopoly. In particular, to introduce possibilities for representation of state and local self-government bodies in courts not only by lawyers or prosecutors, but also by representatives of state and local self-government bodies, and to give the right to represent the interests of individuals in courts of first instance not only to lawyers.

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

Constitution of Ukraine, Law of Ukraine “On Advocacy and Legal Practice”.

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

Extensive discussions with experts and advocates need to be held before the consideration and potential prior approval of this draft law. Amendments to the Constitution require an open discussion and mandatory dialogue with civil society. It is also not clear why the constitutional changes have not been discussed within the Legal Reform Commission set up by the President of Ukraine. The priority areas of work of the Legal Reform Commission are the preparation and submission of proposals to the President of Ukraine on amendments to the Constitution of Ukraine and laws of Ukraine aimed at ensuring the implementation of constitutional norms and principles, namely, the priority of protection of fundamental rights and freedoms of a person and citizen, further development of legislation on the organization of the judiciary and the administration of justice, the improvement of legislation on criminal liability and criminal procedural legislation of Ukraine.

It is also noteworthy that the President has introduced six separate draft laws on amending the Constitution. Considering the Constitution as a comprehensive constituent agreement, the stability of constitutional matter, it is worth considering the possibility of consolidating the constitutional process of amending the Constitution.



Draft law on the essential shake-up of the prosecutor's office was submitted to Parliament


1. CPLR expert opinion

On August 29, the draft law No.1032 on the priority measures on reform of the Prosecutor’s Office was submitted for consideration by the Verkhovna Rada of Ukraine. The draft law provides for renewal of the staff of the prosecutor’s office by suspending the work of the Qualification and Disciplinary Commission of Prosecutors (the QDCP) established earlier and granting its powers to temporary attestation commissions.

The purpose of the draft law is justified, and the full-fledged reform of the prosecutor’s office is awaited by Ukrainian society. However, the proposed mechanism has several problems: unreasonableness, violation of the principles of organization of the prosecutor’s office, loss of budget funds.

2. Respective authorities counter-point/argument

The need to suspend the QDCP’s work is justified by the unsatisfactory practice of its activities and the inability to fully and independently perform the functions assigned to it.

3. CPLR assessment of the authorities counter-point

The main problems of the proposed mechanism:

– unreasonableness of the decision to suspend the QDCP. Neither the analytical studies nor the media have any information about the problems of conducting competitive selections by the QDCP. Therefore, the efforts of the authors of the draft law to preclude the current composition of the QDCP from participation in any new competitions have no objective grounds, as no violations or abuses by the Commission were revealed in the competition process;

– secrecy during the formation of temporary attestation commissions and the removal of prosecutorial self-government bodies (the All-Ukrainian Conference of Prosecutors) from this process, which is a violation of the European principles of participation of professional self-government bodies in the activities of the prosecution bodies implemented in Article 7, paragraph 5 of the Law on the Prosecutor’s Office. The draft law proposes that all these issues be resolved by the Prosecutor General of Ukraine;

– violation of the principles of organization of the prosecutor’s office. The structure and network of prosecutor’s system is clearly defined in the current Law and its annexes. In the justice system, both the network of courts and the self-governing bodies of lawyers are defined in detail by the provisions of relevant laws. Instead, the draft proposes to delegate this authority exclusively to the Prosecutor General of Ukraine;

– increasing the term for dismissal of prosecutors and the possibility of artificially delaying this process. The current model of disciplinary responsibility and dismissal of prosecutors implies that the relevant decision of the QDCP may be appealed to the High Council of Justice or to a court (the Administrative Court of Cassation and further to the Grand Chamber of the Supreme Court). However, the heavy workload of the HCJ causes the complaints to be considered for a long time, the time of bringing to justice expires, and once the HCJ has considered the case, it can no longer effectively bring to justice or dismiss the prosecutor. The draft law proposes to further complicate this process: now the volume of prosecutorial cases in the HCJ can be increased by 26 times (instead of one QDCP there will be 26 attestation commissions), and the number of judicial instances will double: the dismissed prosecutor will be able to appeal to the district, administrative, appellate courts, the Administrative Court of Cassation and the Grand Chamber of the Supreme Court;

– loss of significant budgetary funds for the training of candidates for prosecutors’ positions. On April 16, another one-year training of 345 candidates for the position of prosecutor in local prosecutor’s offices began. Recruitment of prosecutors under the new rules provided for in the draft law will mean the loss of funds already spent on the organization of training, accommodation of candidates, their scholarships and salaries of teachers, etc.

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

Constitution of Ukraine, Law of Ukraine “On the Prosecutor’s Office”

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

The draft law should be submitted for review to the Council of Europe experts. It should also be considered at a meeting of the newly formed advisory body under the President of Ukraine – the Legal Reform Commission.

 



The President submitted a number of anti-corruption draft laws to the Verkhovna Rada of Ukraine


1. CPLR expert opinion:

On August 29, the first day of the new convocation of the Verkhovna Rada of Ukraine, the President of Ukraine submitted to the people’s deputies a number of draft laws on the functioning of mechanisms for preventing and combating corruption:

– draft law “On Amending the Law of Ukraine “On Prevention of Corruption” concerning denouncers of corruption” (No. 1010);

– draft law “On Amending Article 106 of the Constitution of Ukraine (on establishing the powers of the President of Ukraine to create independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine and the Director of the State Bureau of Investigations)” No. 1014);

– draft law “On Amending the Law of Ukraine “On the High Anticorruption Court” (concerning the commencement of the court’s work)” (No. 1025);

– draft law “On Amending Certain Legislative Acts of Ukraine on Ensuring the Effectiveness of the Institutional Mechanism for Prevention of Corruption” (No. 1029);

– draft law “On Amending Certain Legislative Acts of Ukraine concerning Confiscation of Illegal Assets of Persons Authorized to Perform Functions of the State or Local Government, and Punishment for Acquiring Such Assets” (No. 1031).

2. Respective authorities counter-point/argument:

3. CPLR assessment of the authorities counter-point:

These draft laws are aimed at eliminating current problems in the area of anti-corruption policy in Ukraine, in particular:

– inconsistency of certain provisions of the Law “On the National Anti-Corruption Bureau of Ukraine” with the provisions of the Constitution of Ukraine;

– the need to ensure proper protection of denouncers reporting the facts of possible corruption or corruption-related offenses and to establish effective safeguards for such individuals. Similar safeguards exist in Ukraine after the Law of Ukraine “On Prevention of Corruption” came into force in April 2015, but due to the lack of legislatively defined mechanisms for implementing the safeguards, they often remained without proper implementation in practice;

– possible overburdening of judges of the High Anti-Corruption Court, which can receive more than 3.5 thousand cases on the day of commencement of this court’s activity (September 5 this year), extremely complicating the work of 38 judges;

– inefficient functioning of the National Agency for Prevention of Corruption and the presence of inappropriate political influence on its officials, which led to the low effectiveness of this body;

– abolition of criminal responsibility for unlawful enrichment by the decision of the Constitutional Court of Ukraine and absence of an effective mechanism for civil confiscation of illegally acquired assets of public servants.

The necessity of resolving each of these problems has been discussed for a long time, therefore these draft laws are relevant. The CPLR experts will produce their opinion on these draft laws in the near future.

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

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

At this stage, it is important to strike a proper balance between the expediency of reviewing and adopting the draft laws and their proper review, analysis and discussion, to ensure that these legislative changes are of good quality and in line with international standards and goals of the anti-corruption policy in Ukraine. Therefore, it is of crucial importance to ensure the transparency and openness of consideration of these draft laws, in the first instance by the parliamentary Committee on Anti-Corruption Policy, as well as to consider proposals and comments received during the consideration of the draft laws, including the ones from civil society representatives.

 

  •  20 (as of 11.09.2019) deputies or a majority of a certain committee may initiate a draft law;
  •  the Sluha Narodu faction has a majority in the committees, which will allow the rejection of amendments by other factions;
  •  150 deputies can initiate discussion of the rejected amendment in the plenary room of the Verkhovna Rada;
  •  150 deputies can initiate cancellation of an already voted act of the Verkhovna Rada.
  •  The current composition of the HCJ needs to be renewed before any other proposed measures are implemented. The current composition of the HCJ must be evaluated by international experts on the criteria of integrity and ethics. The authority of the HCJ members should be terminated in the event of a negative evaluation. Candidates to the HCJ must undergo the same examination. Only after restarting, the HCJ can obtain its mandate provided by this law.
  •  Not only lawyers, but also other individuals with impeccable reputation and authority should be allowed to become members of the HQCJ. The main task of the HQCJ should be to check the integrity and ethics of judges and candidates to judges’ positions. Knowledge testing should be automated.
  •  The law should provide for changes to increase the transparency of decision-making based on qualification assessment and to reduce the discretionary powers of the HQCJ.
  •  The Commission on Integrity and Ethics should be comprised of international experts with the involvement of reputable, highly authoritative professionals from Ukraine, but not members of the HCJ, who are supposed to be monitored by the Commission. Otherwise, control by the Commission will not be impartial and effective.
  •  The Commission should be mandated to evaluate current members of the HCJ, including their past behavior, and its negative decisions should automatically serve as a basis for suspending the authority of those members who do not meet the criteria of integrity and ethics.
  •  Timing of disciplinary proceedings should be realistic. Disciplinary proceedings need to be simplified without compromising procedural safeguards for its participants.
  •  There is a need to change the approach to the formation of disciplinary chambers by providing for the possibility of increasing their number and attracting reputable professionals from outside the HCJ. This will increase the efficiency of the disciplinary bodies.
  •  Having a small but capable Supreme Court is a strategically sound goal. However, the reduction of the Supreme Court should not be implemented before the introduction of mechanisms to reduce its burden and clear criteria for the selection of judges.
  •  Remove the proposed lustration amendments from the draft law, and give the preference to bringing to justice those members of the HCJ, the HQCJ and representatives of the SJA who are reported to have abused their powers or committed other offences.
  •  draft law “On Amending the Law of Ukraine “On Prevention of Corruption” concerning the Exposers of Corruption” (No. 1010);
  •  draft law “On Amending the Law of Ukraine “On the High Anticorruption Court” (concerning the commencement of the court’s activity)” (No. 1025);
  •  draft law “On Amending Certain Legislative Acts of Ukraine on Ensuring the Effectiveness of the Institutional Mechanism for Preventing Corruption” (No. 1029);
  •  draft law “On Amending Certain Legislative Acts of Ukraine on Confiscation of Illegal Assets of Persons Authorized to Perform Functions of the State or Local Government, and Punishment for Acquiring Such Assets” (No. 1031).
  1.  There is no real need to consolidate the constitutional and legal status of the Commissioners of the Verkhovna Rada of Ukraine on the observance of the Constitution of Ukraine and the laws in certain areas without delegating any powers. Thus, the draft Law No. 1016 does not provide for granting to the Commissioners of the Verkhovna Rada of Ukraine on the observance of the Constitution of Ukraine and the laws in certain areas of the right to submit constitutional submissions on the unconstitutionality of laws and other legal acts of the Verkhovna Rada of Ukraine, acts of the President of Ukraine, acts of the Cabinet of Ministers of Ukraine, the Council of the Autonomous Republic of Crimea and the official interpretation of the Constitution of Ukraine. According to the second paragraph of Article 150 of the Constitution of Ukraine, this right is vested only with the Commissioner of the Verkhovna Rada of Ukraine for Human Rights.
  2.  It is unclear how the Commissioner of the Verkhovna Rada of Ukraine for Human Rights interacts with the Commissioners of the Verkhovna Rada of Ukraine on the observance of the Constitution of Ukraine and laws in certain areas.
  3.  In addition, the right to apply for the protection of rights to the Commissioners of the Verkhovna Rada of Ukraine on the observance of the Constitution of Ukraine and laws in certain areas is not considered as part of the right to protection provided by Article 55 of the Constitution of Ukraine.
  •  20 (as of 11.09.2019) deputies or a majority of a certain committee may initiate a draft law;
  •  the Sluha Narodu faction has a majority in the committees, which will allow the rejection of amendments by other factions;
  •  150 deputies can initiate discussion of the rejected amendment in the plenary room of the Verkhovna Rada;
  •  150 deputies can initiate cancellation of an already voted act of the Verkhovna Rada.
  •  restart not only the High Qualification Commission of Judges of Ukraine (HQCJ) but also the High Council of Justice (HCJ) with the involvement of international experts;
  •  improve the qualification evaluation procedures and review certain decisions of the previous composition of the HQCJ.
  •  form a new composition of the HQCJ under the new rules;
  •  establish a Commission on Integrity and Ethics at the HCJ, as a supervisory authority for members of the HCJ, the HQJC and the judges themselves;
  •  limit the period for consideration of disciplinary cases against judges to 30 days upon receipt of a disciplinary complaint;
  •  reduce the composition of the Supreme Court at least by half;
  •  reduce the amount of remuneration for judges of the Supreme Court, members of the HCJ and the HQCJ;
  •  lustrate the leaders of the HQCJ and the State Judicial Administration.
  •  The current composition of the HCJ needs to be renewed before any other proposed measures are implemented. The current composition of the HCJ must be evaluated by international experts on the criteria of integrity and ethics. The authority of the HCJ members should be terminated in the event of a negative evaluation. Candidates to the HCJ must undergo the same examination. Only after restarting, the HCJ can obtain its mandate provided by this law.
  •  Not only lawyers, but also other individuals with impeccable reputation and authority should be allowed to become members of the HQCJ. The main task of the HQCJ should be to check the integrity and ethics of judges and candidates to judges’ positions. Knowledge testing should be automated.
  •  The law should provide for changes to increase the transparency of decision-making based on qualification assessment and to reduce the discretionary powers of the HQCJ.
  •  The Commission on Integrity and Ethics should be comprised of international experts with the involvement of reputable, highly authoritative professionals from Ukraine, but not members of the HCJ, who are supposed to be monitored by the Commission. Otherwise, control by the Commission will not be impartial and effective.
  •  The Commission should be mandated to evaluate current members of the HCJ, including their past behavior, and its negative decisions should automatically serve as a basis for suspending the authority of those members who do not meet the criteria of integrity and ethics.
  •  Timing of disciplinary proceedings should be realistic. Disciplinary proceedings need to be simplified without compromising procedural safeguards for its participants.
  •  There is a need to change the approach to the formation of disciplinary chambers by providing for the possibility of increasing their number and attracting reputable professionals from outside the HCJ. This will increase the efficiency of the disciplinary bodies.
  •  Having a small but capable Supreme Court is a strategically sound goal. However, the reduction of the Supreme Court should not be implemented before the introduction of mechanisms to reduce its burden and clear criteria for the selection of judges.
  •  Remove the proposed lustration amendments from the draft law, and give the preference to bringing to justice those members of the HCJ, the HQCJ and representatives of the SJA who are reported to have abused their powers or committed other offences.