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Political Points for 3 – 10 September 2018

10.09.2018

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




The President’s proposals on the constitutional changes


1. CPLR expert opinion

On September 4, the text of the Draft Law amending the Constitution of Ukraine (on the strategic course of the state for acquiring full-fledged membership of Ukraine in the European Union and the North Atlantic Treaty Organization) No. 9037 was published.

The draft law was registered by the President. The explanatory note to the document states that formalization of the “legal certainty of Ukraine’s course towards the membership in the EU and NATO will mobilize Ukrainian society and Ukrainian authorities and contribute to reforms aimed at achieving the criteria for full membership in the EU and NATO.”

Unfortunately, the mobilization of society, which was repeatedly emphasized, is complicated by the lack of discussion of constitutional changes with the expert community and broad public discussion. These amendments were not considered by the Constitutional Commission.

2. Respective authorities counter-point/argument

In the opinion of the subject of legislative initiative, the vast majority of the Ukrainian society supports Ukraine’s full membership in the EU and NATO, realizing that this is a key guarantee for the creation of a democratic state under the rule of law and ensuring its security.

3. CPLR assessment of the authorities counter-point

While fully supporting the European and North Atlantic vectors of Ukraine’s development, we would like to draw attention to the fact that European integration and the introduction of amendments to the Constitution of Ukraine are completely different processes. Once again, we emphasize the need for a broad public discussion of the constitutional changes before their adoption by the Parliament. Such a process is necessary to increase the legitimacy of the Constitution of Ukraine.

We draw special attention to the fact that before the presidential elections in March 2019 the Parliament will not have time to vote for amendments to the Constitution. The constitutional procedure for amending these sections of the Constitution (stipulated in Section XIII of the Constitution of Ukraine) envisages voting by Parliament at two regular sessions (226 and 300 votes of the constitutional composition respectively) and the availability of the conclusion of the Constitutional Court of Ukraine as to the compliance of the draft law with the requirements of Articles 157 and 158 of the Constitution.

It should be noted additionally that the introduction of amendments to Sections IV, V, VI of the Constitution should not be limited to formalization of European or North Atlantic intentions, but should take place within the framework of an integrated constitutional reform of the “power triangle” (Parliament, President, Government).

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

Section ХІІІ of the Constitution of Ukraine.

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

All subjects of the legislative initiative to amend the Constitution of Ukraine should hold discussions on these draft amendments with civil society before their registration.



The procedure for assessment and collection of administrative fees must be regulated by the law


1. CPLR expert opinion

Ukraine does not have a comprehensive legal act that would regulate the issue of paying for administrative services. It is therefore difficult for citizens to navigate in the procedure and amounts of payment, which often leads to the payment of non-obligatory fees.

In some cases, the fee for administrative services is established by laws or acts of a similar level (there are more than a hundred of such acts and they name such payments and determine the way of their calculation in different ways – in non-taxable minima, in minimum wages, in percentages or in absolute values) while in other cases they are fixed at the level of by-laws.

Numerous “paid services”, including those that actually duplicate or create additional fees for administrative services, are determined by a separate group of acts of the Cabinet of Ministers of Ukraine on the approval of the so-called “lists of paid services” (for example, the Resolution of the Cabinet of Ministers of Ukraine dated October 26, 2011 No. 1098). At present, there are over 20 such “lists of paid services”, and they approve more than 200 ”paid services”. In general, there are no criteria in the legislation as to the necessity of payment or non-payment for all administrative services. A unified procedure for assessing, establishing and collecting administrative fees is also missing.

Therefore, due to the lack of alignment of the regulatory framework and establishment of norms for the payment for services in numerous legal acts of various levels, fees may be collected from the consumers without proper justification and in unreasonable amounts. Under condition of the absence of a single list of all basic administrative services with the amounts of fees for their provision in a single law, the citizens do not know clearly how much they need to pay for a certain administrative service. This is because the procedure for determining this fee is not transparent enough.

In accordance with the Strategy for Public Administration Reform in Ukraine for 2016-2020, approved by the Cabinet of Ministers on June 24, 2016, it is necessary to regulate the issues of payment for administrative services at the legislative level.

2. Respective authorities counter-point/argument

The CPLR has developed the draft Concept for reforming the system of payment for administrative services and the draft Law of Ukraine “On Administrative Fee”. As the Ministry of Economic Development and Trade of Ukraine (hereinafter referred to as the “MEDT”) is responsible for the development of the state policy in the area of rendering administrative services, the CPLR has sent a letter with these documents to the Ministry for consideration. The MEDT reviewed them and sent a response letter to the CPLR. In this letter, the Ministry noted that it does not support the adoption of the draft Concept and the draft Law of Ukraine “On Administrative Fee” for the following reasons:

  •  the list of administrative services in the draft law is not exhaustive and does not cover a range of popular services;
  •  the condition on whether an administrative service should be paid or free of charge for each service, as well as the amount of payment for its provision, should be determined by a separate law regulating such service;
  •  the legislation no longer requires approval of an exhaustive list of all administrative services with the amounts of fees for their provision;
  •  in order to determine the cost of administrative services, the Methodology approved by the Government in 2010 can be used;
  •  according to the draft law, different amounts of fees to be paid for the provision of the same service will be established by various local self-government bodies;
  •  if the Government is going to establish the amounts of fees for administrative services of local self-government bodies, this will be in violation of their constitutional guarantees and legal principles of their activity.

3. CPLR assessment of the authorities counter-point

The CPLR disagrees with the above MEDT arguments for the following reasons:

  •  the exhaustion of the list of all administrative services without exception in a single law would not make sense, as a number of such services are only demanded among specific groups of citizens. In addition, new administrative services arise from time to time, therefore our draft does not aim to determine the list of all administrative services;
  •  the draft law contains an annex that proposes to determine the list of the most popular (basic) administrative services among citizens and the amounts of administrative fees for their provision in the most widespread areas of public life (according to our expert estimates). This will contribute to increasing convenience and transparency of this area for citizens;
  •  the Law of Ukraine “On Administrative Services” does not require determining the amount of fees for their provision in separate laws that regulate them. It contains norms (for example, part 3 of Article 11), pointing to the necessity of the adoption of a single law on administrative fees;
  •  the Methodology of determining the cost of paid administrative services is a by-law. The Law of Ukraine “On Administrative Services” requires that this procedure be regulated at the level of the law, which will provide the necessary transparency and stability;
  •  the draft law stipulates that the Parliament of Ukraine will establish admissible maximum and minimum limits of the amounts of administrative fees for municipal services. This will prevent local governments from imposing drastically different and unfair payments for their services, but will provide the necessary level of freedom for local self-government. At the same time, the establishment of the upper limiting level of the fee will protect citizens and business from arbitrariness in this area;
  •  the CPLR draft does not provide for the authority of the Government to set the amounts of administrative fees for administrative services of local self-government bodies. The text of the draft law does not contradict the Constitution of Ukraine.

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

The Strategy for Public Administration Reform in Ukraine for 2016-2020, approved by the Cabinet of Ministers on June 24, 2016; the Law of Ukraine “On Administrative Services” (Part 1 of Article 5, Part 3 of Article 11).

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

The Government has to approve the Concept for reforming the system of payment for administrative services. Further on, the Verkhovna Rada should adopt the Law of Ukraine “On Administrative Fee”. This is required by current legislation. Without the adoption of these acts, Ukrainians will continue suffering from unfair and/or unlawful payments in the area of providing administrative services. The MEDT should review its opinion and express its readiness to fulfill its responsibilities in this area. In turn, the CPLR is ready for a dialogue and cooperation with the MEDT.



The President introduced the draft law “On Legal Profession and Advocacy Activity”, the provisions of which may impede criminal investigations


1. CPLR expert opinion

Amendments to the Constitution of Ukraine on reforming the justice system of June 2, 2016 consolidated the new principles of advocacy and lawyer’s “monopoly” to protect against criminal prosecution and the representation of individuals in the courts. For the implementation of these constitutional provisions, as well as addressing other issues of the legal profession, in particular its excessive centralization, a new draft Law “On Legal Profession and Advocacy Activity” No. 9055 was prepared.

2. Respective authorities counter-point/argument

The draft Law was introduced by the President of Ukraine on September 6 and identified as urgent. According to the initiators, the document was developed in cooperation with experts of the Council of Europe and approved by the Judicial Reform Council. At the same time, the National Association of Advocates of Ukraine and the Council of Advocates of Ukraine made statements about the non-compliance of the draft with international standards and principles of the legal profession, and its development was carried out without their proper participation.

3. CPLR assessment of the authorities counter-point

Particular attention should be paid to the new provisions concerning the rights of a lawyer in the framework of criminal proceedings. Among positive norms is the legislative formalization of the lawyer’s right to use any technical means not prohibited by law, as well as the possibility to have unimpeded access to their clients in the premises of courts, prosecutor’s offices, and other law enforcement agencies.

At the same time, the draft law contains a number of provisions that jeopardize blocking of criminal investigations.

1. Introduction of the principle of inadmissibility of abuse of procedural rights (Article 22-1 of the CPC). This provision may create additional possibilities for violations of the rights of the defense side. The active defense of the accused may be recognized by the court as an abuse and have negative consequences for the lawyer and his/her client. Any action within the law may be potentially considered by the court as an abuse of procedural rights.

2. Granting to the lawyers of the right to independently interrogate witnesses (Article 224 of the CPC). Active participation of the defense in the interrogation may lead to a significant delay in the investigation. In addition, the provision of this right to defense is not of procedural importance, as the court at the hearing will have to hear all participants in the proceedings again.

3. Providing the defense with the right to initiate a search (Article 234 CCP). The search is an investigative action that restricts the rights and freedoms of an individual in the most severe way. That is why initiation of this activity belongs to the exclusive competence of the investigation authorities and the prosecutor’s office. Expansion of the circle of such persons will inevitably lead to an increase in the number of unjustified searches and an even greater restriction of human rights.

4. The assignment of the crimes committed by the lawyers to the SIB jurisdiction (Article 216 of the CPC). These proposals do not take into account the specific competences of the Bureau, which is authorized to investigate crimes committed only by the Government officials, while lawyers are representatives of self-governing profession.

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

The Constitution of Ukraine, the Criminal Procedure Code of Ukraine, the Law of Ukraine “On Legal Profession and Advocacy Activity”.

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

Amendments to the Criminal Procedure Code, proposed by the draft Law No. 9055, need to be reviewed in terms of their compliance with European standards. They must necessarily be changed before the second reading of the draft in Parliament.