Political Points for 8–15 July 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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- President registered the draft law aimed at enhancing lustration
- Suggestion to cancel President’s decrees on the consolidation of courts contradicts the Constitution of Ukraine
- Personnel shortage in High Qualification Commission of Judges of Ukraine may undermine the exercise of its powers
- Verkhovna Rada of Ukraine adopted the law on forced chemical castration for persons who committed sexual crimes against children
Президент зареєстрував проект Закону про посилення заходів щодо очищення влади
1. CPLR expert opinion
On July 11th, 2019, President V. Zelenskyy registered the draft law No10444 on amending some laws of Ukraine on lustration.
The draft broadens the list of positions to be covered by lustration to include elected positions, namely positions of President of Ukraine, Head of Verkhovna Rada of Ukraine, First Deputy and Deputies of the Head of Vekhovna Rada of Ukraine, people’s deputies of Ukraine, elected officials of government authorities and local self-governments; the list also includes candidates to people’s deputies of Ukraine, candidates to Verkhovna Rada of the Autonomous Republic of Crimea, oblast, city, raion in cities, village, town councils, candidates to the President of Ukraine, candidates to village, town, city mayors and starostas.
The draft law also lists officials who worked during the period from 23rd of February, 2014 to 19th of May, 2019 and who meet the lustration criteria (part 3 of article 3 of the draft law No 10444).
The draft law also prohibits persons who are subjects of lustration to practice as lawyers.
2. Respective authorities counter-point/argument
According to the explanatory statement, the draft law broadens the list of positions which are subject to lustration and clarifies some criteria of lustration in order to halt further abuse of power or position during the fulfillment of official tasks and to prevent escaping responsibility for actions aimed at personal enrichment.
3. CPLR assessment of the authorities counter-point
Lustration is a tool of political regime change which means blocking officials of the previous regime actions of which had negative consequences and was condemned by society. Through lustration representatives of the previous regime are held responsible and lose a right to occupy specific positions in the government.
Introduction of lustration mechanism in 2014 was caused by extraordinary events which took place during the Revolution of Dignity and included civilian casualties as the outcome of usurpation of power by V. Yanukovych. Lustration is related to extraordinary historical events in Ukraine as stated in part 2 of article 1 of the respective Law. Taking into account the nature of this institute in Ukraine it may not be used as a general tool for punishing political opponents. In general cases, officials are brought to political responsibility via the institute of elections when citizens express their support in politicians by casting ballots.
Current political elite did not come to power in the result of the Revolution as it happened in 2014, but in the result of peaceful transfer of power after peaceful expression of will by citizens of Ukraine on the Presidential election in the spring of 2019. It is important to note that European institutions positively assessed the implementation of reforms in Ukraine (including decentralization and energy efficiency reforms) which is a piece of additional evidence that the real goal of suggested lustration – exerting political pressure on political opponents – is illegitimate.
The draft law No 10444 by President Zelenskyy foresees broadening of the list of positions to be covered by lustration to include elected positions. Requirements to these positions are set in the Constitution of Ukraine; they are exhaustive and do not provide for preconditions laid down in the draft law. Therefore these suggestions of the draft law are unconstitutional.
The draft law provides for lustration with regard to a judge, judges who personally or as a member of a panel reviewed a case or made a decision violating the Convention for the Protection of Human Rights and Fundamental Freedoms ascertained by a decision of the European Court of Human Rights. This suggestion is dubious with respect to constitutionality and common sense since firing all judges in whose cases the ECHR made a decision about violations of the Convention by Ukraine would potentially decimate the judiciary of Ukraine.
Prohibition to practice law contradicts the objective of lustration as defined by article 1 of the Law since practicing as a lawyer is an independent professional activity of a physical person.
It is worth paying special attention to the fact that this draft law was registered in the last day of plenary sessions of the Parliament, just 10 days before the special parliamentary election and thus have no chance of being approved by the current convocation of the Verkhovna Rada.
Due to the active interest of the President to the issue of lustration we remind that apart of “clarifying some criteria of lustration” the President should have strictly complied with norms of the Law “On Lustration” and not appointed A. Bodgan who had fallenl under legislative limitations according to the Law as a Head of the Presidential office.
4. Related legislation/instructions which require the authorities act in a certain manner
Constitution of Ukraine, Law of Ukraine “On Lustration”
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
Recommendation to the President and the next convocation of the Verkhovna Rada of Ukraine: to abandon initiatives similar to the draft law No 10444.
Suggestion to cancel President’s decrees on the consolidation of courts contradicts the Constitution of Ukraine
1. CPLR expert opinion
On July 12th, referring to the Deputy Head of the Office of the President of Ukraine R. Ryaboshapka mass media reported that President V. Zelenskyy intended to cancel decrees of his predecessor on the reorganization of local courts. Let us remind that at the end of December 2017, President P. Poroshenko abolished/reorganized local general and commercial courts and created circuit courts instead. According to the State Judicial Administration of Ukraine instead of 663 local general courts, 282 new courts have to operate; that is court circuits were de facto consolidated. The number of local commercial courts (27) has not changed. Currently, new courts have already been registered as legal persons but judges have not been appointed to them. The High Qualification Commission of Judges announced the competition for selection of judges to these courts.
Decrees on optimization of courts network were issued by the President in line with his constitutional powers which he lost on 31st of December 2017. According to the Constitution, after this date establishment, reorganization and abolition of courts can only be done by law.
By canceling respective decrees President will de facto abolish newly established circuit courts in the way which contradicts the Constitution of Ukraine and without having respective powers to do so.
2. Respective authorities counter-point/argument
Subparagraph 6 of paragraph 16-1 of Chapter XV of the Constitution of Ukraine indicates that until the new administrative division of Ukraine is introduced according to the changes to the Constitution in relation to the decentralization of power but not later than 31st of December 2017 courts are established, reorganized and abolished by the President of Ukraine on the grounds and in accordance with the procedure established by law.
According to part 2 of article 125 of the Constitution of Ukraine courts are established, reorganized and abolished by law draft of which is submitted to the Verkhovna Rada of Ukraine by the President of Ukraine after consultations with the High Council of Justice.
3. CPLR assessment of the authorities counter-point
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4. Related legislation/instructions which require the authorities act in a certain manner
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5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
In the opinion of experts of CPLR, President V. Zelenskyy may initiate changes to the network of courts only by submitting a respective draft law to the parliament after consultations with the High Council of Justice.
Personnel shortage in High Qualification Commission of Judges of Ukraine may undermine the exercise of its powers
1. CPLR expert opinion
On July 8th 2019, High Qualification Commission of Judges of Ukraine (HQCJ) reported about S. Prylypko and P. Lutsiuk withdrawal from the Commission’s staff on the occasion of the end of their mandates. On 11th of July, T. Veselska and A. Kozlov were also withdrawn from the staff.
Earlier this year A. Vasylenko departed from the staff of the Commission on the occasion of appointment to the High Council of Justice (May) and T. Lukash departed on his own initiative (June).
On July 12th, M. Sirosh was enlisted instead of T. Veselska, and on July 3rd, – S. Ostapets was enlisted instead of T. Lukash.
Currently, the Commission only has 12 members out of 16 foreseen by the Law. However, only 10 members can fully exercise their powers since S. Koziakov and S. Shchotka do not attend the Commission’s meetings due to bans established by courts in trials over terms of their office.
In the short term, the Commission might get a new member – A. Solodkov, who was recognized as a winner of the competition under the quota of the State Judicial Administration of Ukraine. As regards O. Drozdov who was selected to the Commission instead of P. Lutsiuk by the Convention of the Ukrainian National Bar Association on February 2019, the issue of his enrollment to the HQCJ is still not solved since the effect of decision about his selection was suspended to support the claim.
Currently, the Commission does not have enough members to continue the full-fledged qualification assessment since in order to overrule a decision of the Public Integrity Council at least 11 votes of the Commission members are needed.
2. Respective authorities counter-point/argument
According to parts 1&2 of article 94 of the Law of Ukraine “On Judiciary System and Status of Judges” the HQCJ shall consist of sixteen elected (appointed) members. Eight of members shall be elected (appointed) by the Congress of Judges of Ukraine and two members – by each of the following entities: the Congress of Representatives of law schools and research institutions, the Congress of Lawyers (the Bar) of Ukraine, the Commissioner of the Verkhovna Rada of Ukraine for Human Rights, the Head of State Judicial Administration of Ukraine.
Paragraph 2 of part 1 of article 88 of the respective Law provides for that if the Public Integrity Council states in its conclusion that a judge (judicial candidate) does not meet criteria of professional ethics and integrity, the HQCJ may adopt a decision on confirming capability of such a judge (judicial candidate) to administer justice in respective court only if such a decision is upheld by not less than eleven members thereof.
3. CPLR assessment of the authorities counter-point
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4. Related legislation/instructions which require the authorities act in a certain manner
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5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
Numerous problems related to staffing and activities of the HQCJ are under the constant scrutiny of CPLR experts. These problems demonstrate that the current format of this body’s operation is inefficient and sensitive to the political situation in the country. Due to an unsatisfied public request for cleaning the judiciary from unfair judges, it is clear that changing the HQCJ’s personnel is not enough – change of approach to its staffing is needed.
The expert community developed the Concept note on implementation of judicial reform which provided for the reorganization of the HQCJ. In particular, it suggests establishing new Qualification Commission of Judges with equal quotas for civil society associations and judges as well as the involvement of international experts to selection proceedings. One of the particularly relevant suggestions of the Concept is to select reserve members of the Commission who would be able to fill vacancies quickly or join the Commission when the workload is too high. This would prevent situations such as the current stalemate in the Commission.
Let us remind that according to the public opinion survey conducted on June 2019 by the Razumkov Center and Ilko Kucheriv Democratic Initiatives Foundation only 16% of respondents tend to trust the current membership of the HQCJ, while 58% tend not to trust it. Only 2% of respondents believe that cleaning of the judiciary is efficient.
Verkhovna Rada of Ukraine adopted the law on forced chemical castration for persons who committed sexual crimes against children
1. CPLR expert opinion
On 11th of July, the Verkhovna Rada of Ukraine adopted as a whole the law on amending some legislative acts of Ukraine regarding tightening responsibility for crimes committed against juveniles, adolescents or persons who have not reached sexual maturity (draft law No 6449, initiators – Lyashko O. et al.). The Law foresees changes to the Criminal Code and the Criminal Procedural Code regarding the introduction of forced chemical castration as a punishment for persons who committed crimes against sexual freedom of a child. The Law also provides for creation of a public registry of such persons.
In view of type of punishment and its forced nature, this law violates human rights, namely the prohibition of torture which in particular means that no one shall be subjected to torture or to inhuman or degrading treatment or punishment (article 28 of the Constitution of Ukraine, article 3 of the Convention for Protection of Human Right and Fundamental Freedoms).
2. Respective authorities counter-point/argument
National Police of Ukraine supports the idea of chemical castration for crimes against sexual freedom of children. However, this related the draft law No 6607 which suggested voluntary nature of chemical castration. Nonetheless, after the law No 6449 was adopted leadership of the National Police also expressed its approval.
3. CPLR assessment of the authorities counter-point
Ukrainian MPs decided to borrow the experience of some European countries and the USA which introduced voluntary chemical castration for persons sentenced for crimes against sexual freedom of children. Only one country, Poland, introduced forced chemical castration in 2018, but this provision is criticized by lawyers’ community and can be recognized as unconstitutional by the Constitutional Court of Poland.
There are two draft laws registered in the parliament – No 6607 and No 6449 (the former was adopted in the first hearing, the second – as a whole).
The adopted law No 6449 introduced forced chemical castration which is an inhuman or degrading punishment (as an element of “punitive pshyciatric” or “forced medical treatment” it was used in Europe in the middle the XXth century).
This law does not comply with international standards and violates human rights particularly in such aspects:
- experience of foreign countries demonstrates that they introduce voluntary chemical castration for persons with medical diagnosis “pedophilia” as a substitution for unserved part of their imprisonment (partial or full);
- chemical castration is used exclusively for persons with medical diagnosis “pedophilia” (only a few pers cent of persons sentenced for crimes against sexual freedom of children suffer from this mental disorder);
- respective punishment aims at treatment and weakens sexual drive (libido) of a person sentenced for crimes against sexual freedom of children. This is the only known in the world way of prophylaxis of such crimes in regards of pedophiles who are sane but who can not be rehabilitated by the existing punishments provided for by the Criminal Code of Ukraine;
- respective punishment shall be used only after psychiatric evaluation (about whether a person suffers from pedophilia as a disease) and medical evaluation (about feasibility of chemical castration and absence of medical contradictions);
- creation of a public registry of persons sentenced for pedophilia is indeed practiced but it demands developing clear access procedures and regulating transfer of information to third parties etc. (for example, access can be granted only for authorised officers of educational establishments, etc.).
4. Related legislation/instructions which require the authorities act in a certain manner
Constitution of Ukraine, Criminal Code of Ukraine, Criminal Procedural Code of Ukraine, Law of Ukraine “On Administrative Supervision pf Persons Released from Detention Facilities”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
President of Ukraine shall use his veto power in relation to adopted law No 6449.