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Political Points for 5 – 12 March 2018

12.03.2018

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 Supreme Anticorruption Court must ensure an effective and fair hearing of high-level corruption cases


1. CPLR expert opinion

The Supreme Anticorruption Court must ensure an effective and fair hearing of high-level corruption cases. The judges of this court must go through an honest competition and receive unanimous support from representatives of the public, international partners and, finally, the Ukrainian government bodies.

The draft law No.7740, adopted in the first reading, needs to be substantially revised to achieve these goals.

2. Respective authorities counter-point/argument

The President expressed his opposition to the decisive participation of international experts, as it contradicts the state sovereignty of Ukraine.

3. CPLR assessment of the authorities counter-point

No judge, even the one selected with the participation of international experts, can be appointed without the decision of the Ukrainian government bodies which are adopting the final decision – the Supreme Council of Justice and the President. Consequently, the participation of international experts does not violate the state sovereignty.

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

The Constitution of Ukraine, the Law “On the Judicial System and the Status of Judges”, the conclusion of the Venice Commission, the opinion of the EU, the letter of the IMF and the letter of the World Bank.

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

When finalizing the draft law before the second reading, it is important to consider the following:

1) participation of the Public Council of Integrity in the selection process should be maintained, however, its negative conclusion should hamper the appointment to the position of an anticorruption judge (the IMF insists on preserving the PCI’s participation, and the Venice Commission also recommended that the procedure for selecting anticorruption judges differed from that applicable to the selection of other judges only to the necessary extent);

2) international experts should play a decisive role in the selection process as part of a special panel of the High Qualification Commission of Judges (participation of international experts will reduce the risk of fraud by the existing members of the HQCJ, which was clearly seen during the selection process for the new Supreme Court);

3) a special board of the HQCJ (4 international experts and 3 members of the HQCJ, approved by the Public Council of Integrity) should conduct a positive selection – that is, selection of the best of the contenders;

4) the requirements for future anti-corruption judges stipulated in the draft law are unrealistic for the purpose of selection of the full composition of a court, therefore, it is necessary to expand the range of persons potentially able to take part in the competition;

5) the powers of the cassation authority in cases of high-level corruption should not be exercised  by the current judges of the Supreme Court, selected in a manipulative way, but it is necessary to establish an Anticorruption Chamber of the Supreme Court in accordance with the rules of selection of anticorruption judges.

It is important to note that international experts can be more successful in positive selection (the best choice). In the meantime, the draft law, unfortunately, provides for the participation of international experts in the negative selection (the withdrawal of unfair candidates).

Another important point is that simultaneously with the Law “On the Supreme Anticorruption Court” it is necessary to adopt a law on the formation of this court, the draft of which must be promptly submitted by the President to the Parliament in accordance with the Constitution. Otherwise, the authorities may delay the establishment of the court, even having adopted the Law “On the Supreme Anticorruption Court”.



Opinion on the Draft Law of Ukraine “On the Election of People’s Deputies of Ukraine” (with the party lists open for public discussion) No. 7366-1


1.  CPLR expert opinion

The Draft Law “On the Election of People’s Deputies of Ukraine (with the party lists open for public discussion)” No. 7366-1 (hereinafter referred to as the Draft Law) was registered on December 20, 2017 as an alternative to the draft Law No.7366. It was elaborated by the People’s Deputies from “Batkivshchyna” faction headed by Yulia Tymoshenko.

Legislative support for electoral procedures is at a rather high level; however the authors did not take into account changes in the legislation on political parties, on counteracting political corruption, etc.

The title of the Draft Law (with the party lists open for public discussion) is deliberately misleading, since in reality the Draft Law envisages holding parliamentary elections under proportional electoral system in a national constituency with closed party lists.

2. Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

Parties that have received support of not less than five per cent of the actual votes of the voters within the national constituency are allowed to participate in seat allocation.

The deputies’ seats are distributed among the national electoral party lists subject to the election process in proportion to the number of votes received by these lists.

The national election list of a party includes not less than one hundred and no more than four hundred and fifty candidates. Each candidate, except for the first five, is assigned to the Autonomous Republic of Crimea, or an oblast, or cities of Kyiv or Sevastopol, and in case of his/her election, he/she will be assigned to this territorial unit as a people’s deputy of Ukraine. The number of candidates assigned to the region is determined on the basis of not more than two candidates per the territorial constituency and at least three candidates per region. The first five people in the national electoral list are not assigned to territorial constituencies. The ranking of candidates in the list is determined at the congress (meeting, conference) of a party, taking into account the equal allocation of candidates by regions.

For the Expert Opinion of the CPLR on the Draft Law on the Election of People’s Deputies (Majority System) No. 7366-1, see the link.

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

The introduction of a proportional electoral system with closed party lists contradicts the Coalition Agreement and the Plan of Legislative Support to Reforms in Ukraine.

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

The Verkhovna Rada of Ukraine, taking into account the pre-assumed obligations, should reject the draft Law on the Election of People’s Deputies No. 7366-1.