Political Points for 5 – 12 February 2018

On February 9, 2018, the National Agency on Corruption Prevention (NACP) held its full session for the first time in its history and approved a new distribution of powers between the NACP members

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1. CPLR expert opinion

The functioning of the NACP in its entirety (5 members) should substantially facilitate the decision-making process by this body (in the last six months, such decisions could only be taken unanimously, since the NACP was comprised just of 3 members), as well as improve the quality, efficiency and effectiveness of the NACP activity in all areas of its responsibility (until now, each member had to deal with several fundamentally different directions of NACP activity).

However, five members of the collegial body represent a critical minimum, which ensures only a certain level of independence of this authority. In order to have normal and truly independent operation, the NACP would need to include at least 7 (or even 9) members.

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

In accordance with Art. 5 of the Law “On the Prevention of Corruption”, the NACP is a collegial body comprising of five members. By appointing the last two members of the NACP (on January 17, 2018), the Government has fulfilled the requirements of the law, which had to be implemented two years ago.

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

Within the shortest time period all NACP members (especially the newly appointed ones: O.Magul and  S.Patyuk) must thoroughly examine their areas of responsibility and finally ensure that the NACP effectively implements all the powers delegated to it by the anti-corruption legislation,  laws on parties and elections.

Further on, amendments to the Law on the Prevention of Corruption should be developed and introduced in order to enable NACP operation in the composition of 9 members (such as the Antimonopoly Committee or the Accounting Chamber) or more members (the Central Election Commission, the High Qualifications Commission of Judges of Ukraine, the High Council of Justice etc.)

The attack on NABU continues

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1. CPLR expert opinion 

On February 7, 2018, the Committee on Legislative Support of Law Enforcement Activities planned to consider the draft law No. 7315 “On amending Article 214 of the Criminal Procedural Code of Ukraine (regarding special issues related to the commencement of pre-trial investigation on separate categories of offenses)”, according to which introducing information to the Unified Register of Pre-Trial Investigations (URPI) regarding the declaration of false information and illegal enrichment would only be possible upon availability of respective conclusion of the NACP.

2. Respective authorities counter-point/argument 

The authors of the draft law argue that its purpose is to ensure a unified approach in case of initiating criminal proceedings under Articles 366-1, 368-2 of the Criminal Code of Ukraine (CPC), namely the availability of a conclusion as to the unreliability of the declared information or the presence of signs of illegal enrichment in the NACP’s decision, adopted on the results of the full inspection of a declaration (declarations) of persons authorized to perform functions of the state or local self-government.

3. CPLR assessment of the authorities counter-point 

The CPLR prepared the Opinion of the Public Anti-Corruption Expertise, which recommends rejecting the draft law No. 7315 as not complying with the requirements of the anti-corruption legislation.

The proposed reference to the availability of the NACP’s conclusion (regarding the unreliability of the declared information or the presence of signs of illegal enrichment) at the beginning of pre-trial investigation creates unreasonable obstacles to the activities of investigators and prosecutors, who are the only authorized entities in this matter in accordance with the CPC. Under the conditions proposed by the draft law, the NACP is assigned functions that are not specific to this body and contradict the idea of its creation.

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

The amendments to Part 9 of Art. 214 of the CPC, proposed by the draft law, are contrary to Art. 19 of the Constitution of Ukraine, Part 1 of Art. 214 of the CPC (general provisions on the commencement of pre-trial investigation).

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

In order to avoid the aforementioned risks, it is advisable to reject the draft law upon the results of its consideration by the Verkhovna Rada in the first reading.

Problematic issues of illegal fees on administrative services

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1.   CPLR expert opinion

On April 30, 2016, upon the initiative of the Ministry of Justice of Ukraine, the powers of state registration in the area of business and real estate were transferred to local self-government authorities (as a result of the adoption by the Parliament of Laws No. 835-VIII and No. 834-VIII). Such a policy has made it possible to bring administrative services closer to consumers and to enable their rendering through the Centers for the Provision of Administrative Services (CPAS), where citizens can order them together with other necessary services.

At the same time, apart from local self-government authorities, “accredited entities” were also identified as subjects of the provision of administrative services on state registration in the area of business and real estate. They are state and communal enterprises. The disadvantages of such entities are their commercial purposes. As the Ukrainian practice demonstrates, public companies often become an instrument of the authorities for earning additional funds from administrative services that are not included in the budget and used in a non-transparent manner. To prevent such a situation, the legislative acts on the above-mentioned services stipulate that the financing of “accredited entities” should be carried out exclusively at the expense of 60 per cent of the administrative fees that remain for them from the provision of registration services.

But the Ministry of Justice of Ukraine seems to have decided to ignore the legislation on the prohibition of additional payments while providing administrative services. In that way, on the 8th floor of Gulliver Shopping Mall in Kyiv, the Ministry of Justice opened the so-called “House of Justice”, the technical support to which is provided by VFS.GLOBAL. When using administrative services in the area of state registration of business, real estate, apostille certification and marriage registration in this “House of Justice”, citizens are charged with payments that are not stipulated by the law. For example, when a person is getting registered as an individual entrepreneur (FOP), an additional UAH 250 is charged from him/her, the registration of a legal entity costs UAH 600, the registration or changing information on ownership rights – UAH 450. At the same time, such “services” and payments are prohibited by the law when providing administrative services.

2.   Respective authorities counter-point/argument

The Ministry of Justice of Ukraine provided a response at the request of the Center of Policy and Legal Reforms (CPLR) in the form of a letter. In the letter, the Ministry noted, in particular, that in accordance with national legislation, accredited entities (including this “House of Justice”) are independent entities entitled to carry out economic activities without restrictions, which does not contradict the legislation. At the same time, our questions have not been answered in essence.

3.      CPLR assessment of the authorities counter-point

The CPLR does not object the right of economic entities to carry out their economic activity independently, which does not contradict the legislation. However, in our opinion, in this case a violation of the legislation is in place. In fact, the fee that is additionally charged for the provision of services in the “House of Justice” is prohibited by the Law of Ukraine “On Administrative Services”.

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

The collection of the above-mentioned payments is a gross violation of the requirements of the Law of Ukraine “On Administrative Services”. In accordance with part 6 of Article 11 of this Law, “the collection of any additional payments that are not stipulated by the law for the provision of administrative services or requiring the payment of any additional funds is prohibited.” In addition, according to part 1 of Article 14 of this Law, “it is prohibited to attribute to the related services the provision of advice and information related to the provision of administrative services, the sale of application forms and other documents necessary for applying for administrative services, as well as rendering assistance in their filling and forming a package of documents”. This means that payment for these services is not admissible.

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

The Ministry of Justice of Ukraine should return the activities of the accredited subject of the “House of Justice” to the legal framework of Ukraine and stop the collection by this entity or related structures of the payments that are not provided by the legislation. The situation in which public authorities make business on public services is unacceptable. This also includes a corrupt factor, because citizens are forced to pay money that they do not have to pay. It is important for the European Union to intervene in this situation and remind the Ukrainian authorities of the need to respect the rule of law and human rights. Unfortunately, the authorities do not pay attention to the messages of civil society and often make false statements.

The Constitutional Court still does not consider constitutional complaints

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1. CPLR expert opinion 

After the introduction of a constitutional complaint institution at the level of the Constitution of Ukraine (June 2016) and at the legislative level (July 2017), its implementation remains unfeasible. The problem with the impossibility of applying a new right to contest unconstitutional laws by means of a constitutional complaint is the lack of Rules of Procedure of the Constitutional Court, which it should adopt independently.

2. Respective authorities counter-point/argument

All 515 complaints submitted to the Constitutional Court were suspended because the Constitutional Court cannot accept the Rules of Procedure, without which it refuses to consider complaints and exercise its new constitutional power.

3. CPLR assessment of the authorities counter-point 

In accordance with final provisions of the Law, the Rules of Procedure were to be adopted by November 3, 2017.

The Rules of Procedure are certainly important both for the organization of internal operations of the Constitutional Court and in the context of establishing a complete procedure of dealing with constitutional complaints, which will promote the proper exercise of the right of individuals to present a constitutional complaint.

But the Constitutional Court cannot make the right of individuals conditional on their own inability to organize their internal operations, thereby violating the Constitution, instead of protecting it. This situation has been going on for four months and is unacceptable.

Not least of all, this is due to the incomplete composition of the Constitutional Court, which currently employs 14 competent judges of 18 (12 votes are required for the adoption of the Rules of Procedure). The Verkhovna Rada and the President have delayed the appointment of judges according to their own quota (2 judges per each), which should have taken place in the end of the last year.

In summary, on the one hand, the Constitutional Court itself bears responsibility for the situation; on the other hand, there is a fault of the Parliament and the President openly delaying the execution of their personnel authorities.

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

Article 1511 of the Constitution of Ukraine stipulates that the Constitutional Court acts on the basis of the Constitution and the law, which means that the possibility of considering constitutional complaints does not depend on the presence or absence of the Rules of Procedure. Separate provisions of the Law of Ukraine “On the Constitutional Court of Ukraine” determine that the availability of the Rules of Procedure is necessary for the consideration of constitutional complaints. At the same time, in accordance with final provisions of the Law, the Rules of Procedure were to be adopted by November 3, 2017.

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

The Verkhovna Rada and the President should immediately exercise their personnel authorities regarding the appointment of 4 judges of the Constitutional Court, in accordance with the Constitution of Ukraine.

The Constitutional Court should adopt the Rules of Procedure and begin to consider constitutional complaints.