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Political Points for 4–11 February 2019

11.02.2019

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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NACP started operating a register of persons who committed corruption and corruption-related offenses


1. CPLR expert opinion

On February 4, 2019, the National Agency for Corruption Prevention finally launched the Unified State Register of Persons who committed Corruption and Corruption-Related Offenses. Prior to this, officials of the Ministry of Justice of Ukraine were in charge of the Register.

This register allows finding out all court decisions that have come to legal effect in relation to persons who committed corruption and corruption-related offenses. Search can be done by the person’s name and surname or by the article of the Criminal Code or Code of Ukraine for Administrative Offences.

Information from this Register will be used primarily for special checks before a person comes to the public service, as well as for inspection of persons participating in public procurement procedures.

In addition, the Register should help to analyze information about the persons under prosecution in order to identify the most vulnerable sectors, the conditions conducive to committing corruption and corruption-related offenses.

2. Respective authorities counter-point/argument

Maintenance of this Register by the National Agency for Corruption Prevention is foreseen by the Law of Ukraine “On Prevention of Corruption”. However, almost three years after the appointment of the leadership and start of the NACP, the Ministry of Justice of Ukraine continued to operate this Register. In 2018, the purchase of services for the development of the appropriate software for the register took place. As it is seen, all information accumulated by the Ministry of Justice of Ukraine for the entire time of operation of the relevant register has been transferred to the NAPC Register. Currently, an automated analysis of the register information is not possible in the open access, and the search information is limited to only 50 first records.

List of offenses identified as corruption or corruption-related is imperfect, which is why the register data are incomplete.

3. CPLR assessment of the authorities counter-point

In order for the Register to begin performing its important analytical function, it is necessary to make technical improvement of its software so that the number of records corresponding to the search query is displayed in any number; in addition, the creation of an automated data analysis module that will be available to all users free of charge is needed.

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

Paragraph 9 of Part 1 of Article 11 of the Law of Ukraine “On Prevention of Corruption”; Decision of the NACP №166 dated 09.02.2018 “On Approval of the Regulation on the Unified State Register of Persons who Committed Corruption or Corruption-Related Offenses”; Article 1 of the Law of Ukraine “On Prevention of Corruption”; Article 45 of the CC.

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

The NACP should update the software of the register of persons who committed corruption and corruption-related offences as soon as possible in order to:

– eliminate the restrictions of displaying the number of records that match the search query;

– create a module for automated analysis of information contained in the Unified State Register of Persons who Committed Corruption and Corruption-Related Offenses, according to different criteria.

The Verkhovna Rada of Ukraine should adopt the necessary legislative changes to eliminate the contradiction between the definition of “corruption offense” in the sense of the Law of Ukraine “On Prevention of Corruption” and the list of corruption crimes specified in the note to Article 45 of the CC. In addition, it is necessary to identify a list of criminal offenses related to corruption. Only then the register information will be complete and relevant.



Plenary sessions of the High Qualifications Commission of Judges on candidates to the Supreme Court may be held without representatives of the Public Council of Integrity


1. CPLR expert opinion

The High Qualifications Commission of Judges (HQCJ, Commission) is finalizing interviews with candidates to the Supreme Court. According to the requirements of the law, those candidates in relation to whom the Public Council of Integrity (PCI, Council) has approved the conclusion can be deemed as confirmed their ability to administer justice in the relevant court (that is, to continue participation in the selection), if such a decision was supported by not less than 11 members of the Commission. The Commission will address these issues at its plenary sessions in (full) composition, which will begin on February 19, 2019.

During the first selection procedure to the Supreme Court held in 2017, in the course of plenary sessions, the HQCJ members listened to the candidates and a member of the PCI in order to form a common opinion on the candidates.

However, the HQCJ has changed its Rules of Procedure by eliminating the provision on the hearing of the candidate and the position of the Public Council of Integrity.

The CPLR experts consider that the intention of the HQCJ to prevent members of the PCI from attending plenary sessions on those candidates to the Supreme Court, in relation to whom the Council approved the conclusions, is contrary to the requirements of paragraph 4 of part 6 of Article 87 of the Law “On the Judicial System and Status of Judges”, which determines that the PCI has the right to delegate an authorized representative to participate in a meeting of the Commission on the qualification of a judge (candidate for a position of judge). The law does not impose any restrictions on such participation, depending on whether the Commission meets in the plenary assembly or as a member of the panel.

2. Respective authorities counter-point/argument

As the representative of the HQCJ stated“During the competitive selection to the Supreme Court (it is about the first one – author’s remark), interviews with the candidates in the framework of their qualification were conducted by the panels and upon availability of the PCI conclusion, and the panel was deciding on whether to submit this issue for consideration at the plenary Commission meeting. Time has shown that this procedure is consuming a lot of efforts and time. The Commission in the plenary assembly was repeatedly considering all the same questions from the very beginning.”

That is, the procedure for considering conclusions at the plenary meeting has been changed in order to save time-consuming resources of the HQCJ.

In January 2019, the PCI published a statement calling on the HQCJ to: “hold plenary meetings in relation to all candidates who have the negative opinion of the Public Council of Integrity, as required by law, with the participation of representatives of the Council and providing them an opportunity to speak.”

3. CPLR assessment of the authorities counter-point

In the amended Rules of Procedure, the HQCJ has determined that, at a plenary meeting, the speaker shall inform the Commission members present at the meeting about the decision taken by the panel, in particular on the content of the conclusion and explanation of the judge (candidate for the position of judge). The role of the plenary meeting is to formally approve the panel’s decision and reject the conclusion of the PCI.

That is, by amending its own Rules of Procedure, the Commission deprived the PCI of the right not only to submit a conclusion to the plenary meeting of the Commission, but also to ask questions to the candidate, so that the HQCJ members could directly perceive and assess the adequacy and validity of the responses. By such actions, the Commission virtually brings to nothing the role of the Council in the procedure for the selection of judges to the Supreme Court.

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

According to Part 1 of Article 88 of the Law “On the Judicial System and Status of Judges”, if the PCI established in its conclusion that a candidate for a position of judge does not meet the criteria of professional ethics and integrity, the HQCJ may adopt a decision confirming the eligibility of such a candidate to administer justice in the relevant court only if such a decision will be supported by at least eleven of its members.

In accordance with paragraph 4 of Part 6 of Article 87 of the Law of Ukraine “On the Judicial System and Status of Judges”, the PCI shall delegate an authorized representative to participate in the meeting of the HQCJ regarding the qualification of a candidate for a position of judge.

Sub-paragraph 2.1.1 of paragraph 2.1 of Section II of the Commission’s Rules of Procedure specifies that the organizational forms of the Commission’s activities are panel meetings, chamber meetings or plenary assembly meetings.

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

The HQCJ should ensure compliance with the direct requirement of the law on the right of the PCI members to take part in Commission meetings (paragraph 4 of part 6 of Article 87 of the Law of Ukraine “On the Judicial System and Status of Judges”) in order to submit a negative opinion in relation to the candidate to the whole composition of the HQCJ. For this purpose, the HQCJ would have to bring the provisions of its Rules of Procedure back to the wording that was in force during the first competitive selection to the Supreme Court in order to allow the PCI members to participate in plenary meetings of the Commission, which will consider the conclusions of the PCI.