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Weekly analytics for 20 – 27 July 2020

27.07.2020

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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Venice Commission Presented an Opinion on Ukraine’s Draft Law No 3612 concerning Democracy through All-Ukraine Referendum


On 13 May 2020, the Speaker of the Verkhovna Rada of Ukraine requested legal expertise from Venice Commission on the Draft Law No 3612 concerning Democracy through All-Ukraine Referendum. This Draft Law was developed by the Workgroup on Democracy and submitted by the President of Ukraine on 9 June 2020. On 21 July 2020, the Venice Commission presented an urgent joint opinion (No 990/2020) with the OSCE Office for Democratic Institutions and Human Rights (ODIHR) on Ukraine’s Draft Law.

The opinion dealt with the conformity of the Draft law No 3612 with international standards, in particular with the Code of Good Practice on Referendums, drafted by the Venice Commission (CDL-AD(2007)008rev-cor), as well as with the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE/OSCE (1990 OSCE Copenhagen Document) and the Updating guidelines to ensure fair referendums in Council of Europe member States Parliamentary Assembly of the Council of Europe Resolution 2251 (2019). It was not intended at assessing its conformity with the Constitution of Ukraine, related national legislation on election and referendum, as well as relevant decisions of the Constitutional Court of Ukraine.

The Venice Commission and the ODIHR welcomed Ukraine’s efforts to amend its legal and institutional framework relating to national referendums, to bring it into compliance with relevant Venice Commission’s and ODIHR’s recommendations, OSCE commitments, Council of Europe and other international human rights documents and standards as well as good practices. The Draft law No 3612 represented a considerable step forward compared to the 2012 All-Ukraine Referendum Law. The transparent and inclusive character of the drafting process was also praised in the opinion.

However, the Venice Commission and the ODIHR provided Parliament with some practical recommendations and remarks for further consideration during the second reading of the Draft Law, namely:

  •  to give Parliament more significant role within the popular initiative referendum;
  •  to introduce the prohibition of organising the all-Ukraine referendum and regular local elections simultaneously;
  •  to extend the deadline for collecting the signatures for the popular initiative referendum;
  •  to harmonise the provisions of the Draft Law with the election legislation to strengthen further the mechanisms of accessibility of referendums for persons with disabilities and to provide effective and meaningful exercise of suffrage rights of IDPs;
  •  to synchronise the provisions of the Draft law on funding of referendum campaign with the legislation on financing of political parties;
  •  to exclude the provisions on electronic voting from the Draft Law and to regulate this issue globally at a later date by way of a separate law;
  •  to include specific articles for dissuasive and effective sanctions on media-related violations.

It should be noted that some of the remarks above have already been taken into consideration by the MPs’ amendments to the Draft Law for the second reading.

The Centre of Policy and Legal Reform expresses the sincerest gratitude to the specialists of the Venice Commission and the ODIHR for the expert support and the positive attitude toward the Draft law No 3612. This act finally will be able to overcome the current legal vacuum on referendum issue in Ukraine, which seriously restricts the citizens’ right to participate in public affairs through a referendum provided for in Article 38 of the Constitution of Ukraine.

The CPLR’s experts hope that the MPs will (a) exclude the electronic voting from the referendum process, (b) extend the deadline for collecting the signatures for the popular initiative referendum, (c) prohibit organising the All-Ukraine referendum and regular local elections simultaneously, as well as (d) provide Parliament with a more significant role within the popular initiative referendum, first of all within law abrogation referendum.



High Council of Justice and politicians are putting pressure on NABU in connection with the publication of information about the illegal activities of judges of the capital's administrative court


Event

On July 17, the National Anti-Corruption Bureau of Ukraine (hereinafter – NABU) announced the service of charges to the chairman and six judges of the Kyiv District Administrative Court (hereinafter – KDAC) and released audio records of wiretapping with explanations of the established facts of illegal actions. According to the investigation, under the leadership of the chairman of the KDAC with the participation of judges of this court there was a criminal organization that interfered in the activities of other authorities to address personal or other issues (see more details in the weekly analysis of July 13-20, 2020).

On July 21, the KDAC issued an open appeal to President Volodymyr Zelensky stating “the existence of a plan … aimed at establishing full control over the Ukrainian judiciary from abroad and thus establishing control over the Ukrainian state and its authorities… the current situation around the Kyiv District Administrative Court is part of this plan.”

As part of the investigation, NABU summoned judges and some members of the High Council of Justice (“hereinafter – HCJ”) for questioning.

On July 22, an explanation appeared on the KDAC website about the impossibility of some judges to come for questioning due to the fact that they are on leave and this is “a violation of the constitutional right of citizens to rest.”

The following day, July 22, the High Council of Justice (hereinafter  – HCJ) adopted a decision blaming NABU in the dissemination of information about the pre-trial investigation in a way that damaged the authority of the judiciary and affected the independence of the judiciary, as well as violating the presumption of innocence.

The HCJ also approved three decisions to appeal to the Office of the Prosecutor General to verify the legality of NABU detectives’ summonses for questioning as witnesses in the proceedings of Council members Pavlo Hrechkivsky, Oleh Prudivus and Viktor Hryshchuk, as in the HCJ opinion, such calls contain signs of artificial obstacles in their work.

On the same day, the Chairman of the Council of Judges, Bohdan Monich, called on law enforcement officers to “refrain from any kind of information intrusion in order to instill distrust in the judiciary.”

CPLR assessment

CPLR experts are of the opinion that the damage to the authority of justice is caused not by the publication of NABU records, but by the lack of an adequate response of the judiciary, primarily judicial and self-government bodies, to the information on the records.

At present, such a response is not to clarify the circumstances of the judges’ behavior, which are referred to in the NABU reports, but to condemn the fact of disclosure of this socially important information.

According to last year’s poll conducted by the Razumkov Center in cooperation with the Ilko Kucheriv “Democratic Initiatives” Foundation, more than a third of respondents believe that one of the key problems of justice is corruption, dependence of judges, pre-programmed decision-making, and circular guarantees in the judicial system. The situation that arose in the judiciary after the publication of NABU materials on the KDAC is a clear manifestation of this problem.

CPLR experts believe that the use by the KDAC judges of their court’s website to notify investigators of non-attendance for questioning, as well as the reference to the illegality of summoning them for questioning, is unacceptable because it contains signs of abuse of office and mutual guarantee.

A similar situation exists in the HCJ’s decisions on the out-of-court assessment of the legality of the investigator’s actions in summoning individual Council members for interrogation and using those members’ legal status not to appear for interrogation, instead of using the mechanisms of criminal procedure law.

Paragraph 10 of the Opinion № (2001) of the Advisory Council of European Judges on Standards for the Independence of the Judiciary and the Permanence of Judges states that: “the independence of judges is a prerogative or privilege granted not to protect their own interests, but the interests of the rule of law and those who  awaits justice.”

CPLR experts are of the opinion that the HCJ, referring to the need to ensure the independence of the entire judiciary, in its decisions actually defends the interests of individual judges suspected in criminal proceedings, which contradicts the essence of judicial independence.

It should also be noted that the HCJ members themselves may be involved in this criminal proceeding. In particular, the video released by NABU in 2019 mentions the possible influence of the chairman of the KDAC on HCJ members, including through people’s deputies.

KDAC and HCJ publicly claim that the actions of the pre-trial investigation bodies are illegal. Given the legal status of these bodies, such actions can be considered as interference in the procedural activities of prosecutors and detectives, which is expressly prohibited by law.

In addition, it became known that a group of people’s deputies (some of them appear on NABU records) challenged the provisions of legislation on the NABU and the High Anti-Corruption Court in the Constitutional Court, which may indicate an attempt to block the activities of NABU and the High Anti-Corruption Court (relevant submissions were received by the Constitutional Court immediately after the publication of the NABU records – on July 21 and 22). Most of the signatories of the constitutional petitions are representatives of the “Opposition Platform For Life” faction.

It should be reminded that NABU records allege, among other things, the influence of the KDAC Chairman on judges of the Constitutional Court.



Reboot of Ukrainian judicial authorities is in the focus of Ukraine's negotiations with the EU


Event

On July 23, Ukraine and the European Union signed a Memorandum on macro-financial assistance of 1.2 billion euros. In order to receive assistance, Ukraine has committed to implement a number of measures, including measures in the area of judicial reform, aimed at: “strengthening the independence, integrity, effective functioning of the judiciary” (information from the Government portal).

According to journalists, the Memorandum enshrines a full reboot of the High Qualification Commission of Judges of Ukraine (hereinafter – HQCJ), providing for the election of its members on a competitive basis with the participation of international experts, and the establishment of a Commission on Integrity and Ethics, which will include international experts and will hold a one-time check of current HCJ members with the possibility of recommending them for dismissal, as well as pre-selection of candidates to the HCJ.

Ukraine has also committed to continue cooperating with the International Monetary Fund.

CPLR assessment

In recent months, the issue of integrity and independence of members of the HQCJ and the HCJ has been repeatedly raised at the international level. In early June this year, Ukraine committed to the International Monetary Fund to establish a commission, which would check the integrity of current HCJ members and conduct a preliminary examination of HCJ candidates (see more details in the weekly analysis of June 8-15, 2020). If the information of journalists is reliable, then Ukraine has made similar commitments to the European Union.

Such commitments show that establishment of a fair court in Ukraine is impossible without ensuring integrity in the activities of judicial authorities.

It should be reminded that the Parliament is considering three draft laws on reforming judicial governance (by President Volodymyr Zelensky, a people’s deputy from “Holos” faction, a number of people’s deputies from the “Servant of the People” faction).

At the same time, neither the presidential draft nor the draft of his political force are in line with international commitments, as they do not provide for a reboot of the HCJ. Only the draft law of the people’s deputy Yaroslav Yurchyshyn from the “Holos” party meets these obligations (see more details in the weekly analyzes of June 15-22, July 6-13, July 13-20, 2020).

Instead, before the parliamentary holidays, the profile committee of the Verkhovna Rada recommended that the presidential draft law be passed in the first reading. In other words, the recent actions of the political authorities are now radically different from Ukraine’s obligations to international partners.



Parliamentarians request the Constitutional Court to declare unconstitutional a number of provisions of the NABU Law


Event

On July 21, the Constitutional Court received a petition from a number of people’s deputies on certain provisions of the Law “On the National Anti-Corruption Bureau of Ukraine.”

The subject of the right to a constitutional petition considers that a number of norms of this Law do not correspond to the Constitution. According to the authors of the petition, the following provisions are unconstitutional:

  •  definition of the status of NABU as a “state law enforcement agency”;
  •  granting the President the power to form NABU;
  •  granting the President the power to appoint and dismiss the Director of NABU;
  •  granting the President the power to appoint three persons to the competition commission for the election of the NABU Director;
  •  granting the President the power to appoint one of the three candidates for the position of NABU Director, proposed by the relevant competition commission;
  •  granting the President the power to appoint one member of the external control (audit) commission;
  •  granting the President the power to approve the regulations on the Public Control Council and the procedure for its formation.

CPLR assessment

CPLR experts have previously pointed out that a number of provisions of the Law “On the National Anti-Corruption Bureau of Ukraine” contradict the Constitution.

The Constitution entrusts the implementation of the internal policy of the state, as well as measures to ensure public order and the fight against crime to the Cabinet of Ministers. In other words, in Ukraine it is the Cabinet of Ministers that is responsible for the activities of law enforcement agencies.

In addition, the Constitution establishes an exhaustive list of powers of the Verkhovna Rada and the President, without any possibility of expanding these powers by other regulations. This has been repeatedly emphasized by the Constitutional Court, in particular in its decisions of 10.04.2003 No. 7-рп/2003; of 25.12.2003 No. 22- рп/2003; of 07.04.2004 No. 9-рп/2004; of 16.05.2007 No. 1-рп/2007; of 08.07.2008 No. 14-рп/2008; of 02.10.2008 No. 19-рп/2008; of 08.10.2008 No. 21-рп/2008; of 07.07.2009 No. 17-рп/2009; of 15.09.2009 No. 21-рп/2009; of 17.12.2009 No. 32- рп/2009; of 10.06.2010 No. 16-рп/2010; of 13.06.2019 No. 5-p/2019 and others.

At the end of 2019, in its opinion No. 7-v/2019, the Constitutional Court also stated that the presence of pre-trial investigation bodies even under the indirect subordination of the President (through the appointment of their heads, in particular) threatens the independence of these bodies and leads to concentration of executive power with the President. In turn, this upsets the balance of constitutional powers between the President and the Cabinet of Ministers and effectively creates a parallel executive branch subordinate to the President. As a result, such a concentration of power weakens the constitutional guarantees of rights and freedoms. Nevertheless, the separation of powers is the main means and indispensable condition for preventing the concentration of power, and therefore an instrument against its abuse for the adequate realization of human rights and freedoms.

In view of this, the constitutional petition rightly emphasizes that the additional powers of the President provided by the Law “On the National Anti-Corruption Bureau of Ukraine” are not in accordance with the Constitution.

The Constitutional Court is also considering a petition on the constitutionality of the Presidential Decree on the appointment of Artem Sytnyk as the director of NABU (dated 20.05.2020). People’s deputies ask to recognize the mentioned Decree as contrary to the Constitution (unconstitutional). The rationale for both submissions is similar.

At the same time, given the recent events surrounding the KDAC, it is possible that the petition to the Constitutional Court dated July 21 on the unconstitutionality of certain provisions of the Law on the National Anti-Corruption Bureau of Ukraine may be due to the intention to prevent NABU from conducting criminal proceedings, in particular those related to the signatories of the petition.