Political Points for 30 April – 7 May 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 law on the inevitability of responsibility for corruption crimes does not work even in the most notorious cases
1. CPLR expert opinion
Serhii Bochkovsky, after three years from the date of his detention, could already serve part of his sentence, however he has not even been convicted, but instead reinstated by the court in his position as the head of the State Emergency Service.
2. Respective authorities counter-point/argument
On March 25, 2015, Serhii Bochkovsky, the Head of the State Emergency Service, was arrested at a government meeting during the live broadcast. He was charged with abuse of office, which consisted in organizing a corruption scheme for tender procurement of fuel and lubricants at overstated prices, service forgery and obtaining unlawful benefits. Meanwhile, on April 26, 2018 the District Administrative Court of Kyiv declared illegal and cancelled Bochkovsky’s dismissal from the position of the head of the State Emergency Service, and collected from the SES the average salary in his favor for a period of a forced unemployment. According to the court decision, Bochkovsky could not be dismissed for the violation of the Oath of a civil servant, since he did not take such an oath. However, the Minister of Internal Affairs Arsen Avakov believes that Bochkovsky has no moral or ethical right to hold the post of the SES’ Head, and therefore he was not allowed to work.
3. CPLR assessment of the authorities counter-point
Instead of thinking about morality, steps needed to be taken to remove Bochkovsky from office or dismiss him on the grounds of the law.
4. Related legislation/instructions which require the authorities act in a certain manner
Articles 154-158 of the Criminal Procedural Code of Ukraine, Articles 36, 40, 41 of the Labor Code of Ukraine.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The Cabinet of Ministers of Ukraine must comply with the decision of the District Administrative Court of Kyiv of April 26, 2018. But this does not prevent it from applying different, correct grounds for dismissal. While this issue will be under consideration, the prosecutor’s office in the meantime may apply to the court that is considering the relevant criminal case with a petition to remove him from office.
On April 26, the Government submitted to the Parliament the low-quality draft Аnticorruption Strategy for 2018-2020
1. CPLR expert opinion
At the end of September 2017, the NACP approved the draft law “On the Anticorruption Strategy for 2018-2020”. The NACP did not hold any public or expert discussions on this document. The expert environment learned about the existence of a working group for the development of this highly important document as late as at the presentation of this project.
According to CPLR’s experts, such anticorruption strategy was unable to provide significant progress in the implementation of anticorruption reform in Ukraine. Therefore, on October 13, 2017, the Center of Policy and Legal Reforms prepared and sent to the NACP a detailed expert Opinion containing many comments and proposals for systematic improvement of this document. As a result of an in-depth analysis of the document, experts of the EU Anticorruption Initiative in Ukraine (EUACI), United Nations Development Program (UNDP) and the project “Support to Leading Organizations in Combating Corruption in Ukraine” “Vzaemodia!” (SACCI) prepared and submitted (on October, 25) to the NACP a Joint Expert Opinion on the Draft Anticorruption Strategy of Ukraine for 2018-2020.
Unfortunately, the NACP took into account only a few (the least crucial) of these comments and sent a draft of this low-quality document for approval by the Government. In the Government, this draft law “was stored” for more than six months (it was no finalized, neither sent to the Parliament). Only on April 25, 2018 the Cabinet approved the document actually in the initial (law-quality) version, and on the next day registered it in the Parliament under number 8324.
2. Respective authorities counter-point/argument
Since the NACP has taken into account only a few (minor) remarks of the expert environment, it seems to consider this document as qualitative. The Government’s position on this document is unclear. On the one hand, the Government representatives have repeatedly (mostly unofficially) expressed their position on the unacceptability of the adoption of the Anticorruption Strategy in this version (that is why it was not submitted to the Parliament for so long). On the other hand, on April 25, 2018, the CMU approved this document actually in the initial (low-quality) version.
3. CPLR assessment of the authorities counter-point
Neither the NACP nor the Government provided any arguments regarding their position. In general, the NACP and the Government have demonstrated not only an absolute inability, but also a fundamental reluctance to form a high-quality anticorruption policy of the state.
4. Related legislation/instructions which require the authorities act in a certain manner
Paragraph 2, part 1 of Article 11, Article 18 of the Law of Ukraine “On Preventing Corruption”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The draft Law “On the Anticorruption Strategy for 2018-2020” should be substantially reviewed within the framework of parliamentary procedures prescribed by the legislation.