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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Presidential candidates express their position on further actions in combating corruption
1. CPLR expert opinion:
In early 2019, more than 20 CSOs presented an Anticorruption Agenda for the candidates for the President of Ukraine, which included four main issues: 1) loss of confidence in the leadership of the Specialized Anticorruption Prosecutor’s Office; 2) failure of the NACPs’ leadership to ensure the institution’s effective functioning; 3) constant attacks on the NABU by political elite; 4) transformation of part of the Security Service of Ukraine into a tool for pressure on business and for illegal enrichment.
2. Respective authorities’ counter-point/argument:
On April 6, Petro Poroshenko conducted a meeting with CSO representatives, during which the issues of the Anticorruption Agenda were raised, among others. In particular, according to Daria Kalenyuk, Executive Director of the Center for Combating Corruption, Petro Poroshenko agreed with the need to reset the NACP and the SAP, expressed his support to the NACP Director Artem Sytnyk, and agreed with the need to eliminate the SSU’s authority in the economy area.
The same evening, the other candidate’s (Volodymyr Zelensky) team presented its position on anticorruption policy priorities. They are much broader than the above four issues, and also cover the remuneration for corruption whistleblowers, deregulation, elimination of law enforcement agencies’ pressure on business, elimination of public servants’ immunities, increased sanctions for corruption acts, prohibition on judicial decisions concerning release on bail, etc. It should be noted that Volodymyr Zelensky was the first of all Presidential candidates to support the Anticorruption Agenda.
3. CPLR assessment of the authorities’ counter-point:
Both Presidential candidates who advanced into the runoff round support the public’s priorities in the anticorruption policy area. Poroshenko essentially had agreed that the problems identified by CSOs in the Anticorruption Agenda are relevant and need to be addressed. However, Zelensky, besides supporting these four priorities, had also announced his other ideas, which cover a much broader range of issues, including in corruption prevention area. At least one of these proposals – the elimination of alternative to pretrial detention in the form of bail for persons suspected of corruption crimes – is dubious in terms of adherence to human rights and freedoms. The candidate’s other ideas of the candidate (e.g., elimination of immunity for certain categories of public servants or the establishing of the High Economic Court) require further details before any final conclusions on them could be formulated.
4. Related legislation/instructions which require the authorities act in a certain manner:
5. CPLR expert suggestions on how to fix the problem using legal instruments available in Ukraine:
Both candidates, in the event of their election, may at the very least initiate legislative changes by submitting to Parliament the necessary draft laws and supporting their adoption. Both candidates declare uncompromising approach towards combating corruption, but the sincerity of their positions could only be assessed based on the actions of either candidate in the event of his election rather than by declarative statements.
State bodies delegitimizing the HQCJ composition by their actions
1. CPLR expert opinion
Various entities, including state bodies, create grounds through their actions for making the current composition of the High Qualifications Commission of Judges (HQCJ) seen illegitimate.
On April 4, the Ombudsman appointed as HQCJ member M. Sirosh due to the end of tenure of HQCJ member T. Veselska. As a reminder, on March 4, the Ombudsman announced the competition for this position, and on March 29, the competition commission unanimously recognized retired judge M. Sirosh the winner of this competition.
On March 12, the Head of the State Judicial Administration (SJA) announced competition for the position of HQCJ member to replace S. Shchotka, who was appointed in December 2014. The very fact of announcing the competition for the position of HQCJ member suggests that the Head of the SJA believes that S. Shchotka’s tenure has ended.
The issue regarding the length of tenure of HQCJ members, who first were appointed for six-year terms that the legislature later reduced to four years, is not clear-cut from the legislative point of view, as different interpretations are possible.
In addition, according to information from the website of Kyiv District Administrative Court, there are also disputes in the court concerning the lack of authority of HQCJ members M. Mishyn, A. Zarytska, M. Makarchuk, Y. Titov, and V. Ustymenko. According to the plaintiff, the four-year tenure of these members of the Commission has ended on March 29. Earlier, on February 15, the Congress of Advocates of Ukraine dismissed P. Lutsyuk as an HQCJ member appointed under its quota, replacing him with O. Drozdov. On February 19, Rivne District Administrative Court suspended the decision of the Congress of Advocates until the dispute can be adjudicated in court, and P. Lutsyuk continues to participate in the HQCJ meetings.
2. Respective authorities’ counter-point/argument
The actions of the Ombudsman and the Head of the SJA demonstrate their recognition that the tenures of members appointed by these bodies has ended.
The HQCJ has not published an official position regarding the calculation of tenure of the HQCJ members. Members who were appointed in 2014, including the Head of the Commission, participate in the HQCJ meetings, including during competitions to the Supreme Court and the High Anticorruption Court.
On March 25, Kyiv District Administrative Court, in a case unrelated to competitions for positions of HQCJ members, decided in favor of 6-year tenure of HQCJ members, as it existed at the time of their appointment. The Commission, as the third party in the case, expresses the position that the tenure of HQCJ members appointed in 2014-early 2015 lasts 6 years. This decision has not come into force, and the dispute is currently pending before the Appellate Court.
3. CPLR assessment of the authorities’ counter-point
The lack of legal certainty regarding the authority of certain HQCJ members, including its Head, as well as the status of newly appointed members threatens the legitimacy of the Commission’s procedures. Taking into account that disputes regarding the legitimacy of the Commission’s members are taking place in the midst of election campaign, there are serious threats of political influence over these processes.
4. Related legislation/instructions which require the authorities to act in a certain manner
According to part 2 of art. 92 of the Law “On Judiciary and Status of Judges” (the version in effect at the time of appointment of HQCJ members in 2014-early 2015), the term of office of an HQCJ member is 6 years.
According to sub-paragraphs 1, 5 of cl. 5 of Section II of Final and Transitional Provisions to the Law “On Ensuring the Right to a Fair Trial” of December 2, 2015, HQCJ members elected by the Congress of Judges of Ukraine, appointed by the Minister of Justice of Ukraine, the Ombudsman, and the Head of the State Judicial Administration of Ukraine exercise their authority for a term of 4 years from the date of their election/appointment (under the Minister of Justice, Ombudsman, and Head of the SJA quotas) or 4 years from the date of entry into force of the Law “On Ensuring the Right to a Fair Trial” (under the Congress of Judges quota).
According to cl. 26 of the Final and Transitional Provisions to the Law “On the Judiciary and Status of Judges” of June 2, 2016, members of the HQCJ exercise their authority until the end of the term for which they were appointed/elected.
Thus, there is an obvious conflict between the provisions of the laws that set the tenure of HQCJ members appointed in 2014-early 2015.
5. CPLR expert suggestions on how to fix the problem using legal instruments available in Ukraine
Given the length and different scenarios for deciding the cases regarding the term of office of HQCJ members by courts, the co-dependence between judges and HQCJ members, as well as the numerous problems with HQCJ’s performance during the competition to the Supreme Court and the conduct of qualification assessment, a reset of this body seems to be the optimal way forward. It is necessary to consider the possibility of reorganizing the HQCJ in a way that would allow to include as members of judicial selection and assessment bodies more civic sector representatives trusted by the society (e.g., human rights defenders, journalists, representatives of specialized CSOs) than judges themselves for the period of reform implementation. Participation of international organizations’ representatives in these bodies will strengthen the transparency and credibility of the process in the eyes of international community.