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Political Points for 17–24 June 2019

01.07.2019

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. 

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 President established the Commission on Legal Reform


1. CPLR expert opinion

On 21 of June Decree No 421/2019 “On Commission on Legal Reform” was published on the official web-site of the President of Ukraine.

2. Respective authorities counter-point/argument

According to this Decree President established the Presidential Commission on Legal Reform as a consultative and advisory body and dismantled the Judiciary Reform Council and the Constitutional Council.

Drafting suggestions on amending the Constitution and laws of Ukraine and submitting them to the President of Ukraine was defined as a priority task for the Commission on Legal Reform. Such amendments shall be aimed at ensuring proper implementation of constitutional norms and principles, that is primacy of protection of fundamental right and freedoms of persons, further development of legislation on organization of judiciary and administration of justice, improvement of legislation on criminal liability and criminal procedural legislation of Ukraine, reform of law enforcement agencies, as well as creation of conditions for reintegration of temporarily occupied territories of Ukraine and their population into single constitutional ambit of Ukraine.

3. CPLR assessment of the authorities counter-point

The Centre of Policy and Legal Reform regrets that establishment of the Commission and its staffing happens in closed mode. In particular, there is no information that the President appealed to relevant civil society organizations and think-tanks asking to delegate experts to the Commission.

The Centre of Policy and Legal Reform is one of the oldest think-tanks in Ukraine. It has been researching on constitutional and judiciary reforms, as well as reform of constitutional justice since 1996.

Representatives of the CPLR as part of the Secretariat of the President worked on constitutional reform proposals during operation of the National Constitutional Council convened by President Yushchenko. Representatives of the Centre also participated in the work of the Constitutional Assembly during the presidency of Yanukovych and in the Council on Judiciary Reform during the presidency of Poroshenko. The Constitutional Commission utilized outcomes of the Centre’s work, in particular in its work on constitutional reform as regards judiciary.

We think that the results of more than 10 years of Centre’s work would be useful for the operation of the new consultative and advisory body. The Centre of Policy and Legal Reform is ready to cooperate and provided recommendations regarding its experts to the President of Ukraine.

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

Decree No 421/2019 “On Commission on Legal Reform”.

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

To ensure proper cooperation between civil society and public authorities as well as inclusive work of the Commission on Legal Reform we suggest to include to the Commission representatives of the CPLR and other independent reputable think-tanks with long-term experience in relevant areas.



The Court made a final judgement about the unlawfulness of certain provisions of the High Qualification Commission of Judges’ Rules of Procedures that limited Public Integrity Council activities on the claim of Council’s member


1. CPLR expert opinion

On 25 of June, Grand Chamber of the Supreme Court left confirmed the decision of the Court of Cassation on regarding as unlawful of some provisions of the Rule of Procedures of the High Qualification Commission of Judges of Ukraine (HQCJ) and cancellation of these provisions. The Court cancelled provisions which set requirements to the content of the Public Integrity Council’s conclusions (PIC, the Council), set an obligation for the Council to inform judges about the content of conclusions, and provided the HQCJ with a right not to consider conclusions of the PIC. These provisions were one of the reasons behind suspension of the PIC’s participation in the procedure of qualification evaluation in March 2018.

Powers of the HQCJ to regulate issues mentioned above were not prescribed by the law, therefore the HQCJ violated article 19 of the Constitution of Ukraine by making respective apdates to its Rules of Procedures.

According to the PIC’s data, while litigation lasted (since March 2018) the Commission has managed to evaluate near 2500 judges without considering conclusions approved by the PIC. The Commission justified its actions referring to the provision of the Rules of Procedure which are cancelled. That means, that there are reasons to believe, that results of qualification evaluation of some judges are dubious.

2. Respective authorities counter-point/argument

The resume of decision defines that provisions of the Rules of Procedures are recognized as unlawful and cannot be further applied not since the date when they were adopted but since the date when the Court’s decision enters into force (25 of June).

3. CPLR assessment of the authorities counter-point

The way the Court cancelled unlawful provisions of the Rules of Procedures once again questioned the legitimacy of results of qualification evaluation held by the HQCJ.

As appears from the essence of decision, the Court decided that making respective updates to the Rules of Procedures the Commission had acted not by virtue of the authority given to it by the law. That is, it did not have a right to make respective updates. Taking this into consideration, the respective provisions of the Rules of Procedures were unlawful since the date of adoption, and their application in practice leads to the unlawfulness of the defined results.

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

Section 2 of the article 19 of the Constitution of Ukraine states the public authorities and bodies of local self-government and their officials shall be obliged to act only on the grounds, within the powers, and in the way determined by the Constitution and the laws of Ukraine.

According to par. 2 part 2 of art. 88 of Law of Ukraine “On Judiciary and Status of Judges” if the Public Council of Integrity states in its conclusion that a judge (judicial candidate) does not meet criteria of professional ethics and integrity, the High Qualification Commission of Judges of Ukraine 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.

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

In order to achieve goals of the qualification evaluation and to ensure real involvement of the public, it is necessary to hold second evaluation of those judges regarding whom conclusions of the PIC were approved. Such a “restart” is not possible without amendments to legislation.

However, experts of the CPLR emphasize that current rules of the Commission formation make this body inefficient. The case on the unlawfulness of Rules of Procedures’ provisions showed that the HQCJ is inclined to place obstacles for the participation of the public in qualification evaluation rather than to make objective evaluation of judges and information about them. The PIC has succeeded in cancellation of unlawful provisions of the Rules of Procedures after almost year and a half since its appeal to the court. Bearing this in mind, it is necessary to consider the possibility of reorganization of the Commission in order to prevent similar acts in the future and to include in bodies selecting and evaluating judges more members of the civil society who are trusted by the public.



“Cleansing” of the High Qualification Commission of Judges staffing?


1. CPLR expert opinion

On 27 of June, media published the information that Ukrainian Parliament Commissioner for Human Rights fired a member of the High Qualification Commission of Judges (HQCJ) A. Kozlov allegedly for lack of professional experience required by his position.

According to part 1 art. 94, par. 3 part 3 art. 96 of the Law of Ukraine “On Judiciary and Status of Judges” the ombudsman indeed has a right to do so.

However, A. Kozlov was appointed to the position in October 2016 and during almost three years no one has been raising questions about his professional experience. In opinion of the PROSUD project, A. Kozlov is de facto the only member of the Commission who ‘tried to implement the judicial reform in line with its goals’, and being a member of the Commission ‘wrote separate opinions on Commission’s decision to confirm integrity of dubious judges and asked inconvenient question during interviews’. Apart of that, as CPLR experts reported, at the beginning of June A. Kozlov publicly claimed that the HQCJ manipulated voting while making decisions about judges with the PIC’s conclusions; since then he has not been attending plenary meetings of the Commission. Taking these facts into account, the dismissal of A. Kozlov may be related to intention to get rid of the independent HQCJ member, to introduce more loyal member instead of him, and to declare integrity of as many dubious judged as possible before the formation of the new Parliament. Let us remind, that at the beginning of June T. Lukash, a member of HQJC appointed on the quota of the State Court Administration of Ukraine, resigned of his own accord.

2. Respective authorities counter-point/argument

3. CPLR assessment of the authorities counter-point

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

According to part 1 art. 94 of Law of Ukraine “On Judiciary and Status of Judges” the HQCJ shall consist of members who are citizens of Ukraine and have, among others, at least fifteen years of professional activity in the field of law. One of grounds for dismissal of a member of the Commission is finding circumstances regarding his/her failure to meet these requirements (par. 3 part 1 art. 96 of the Law of Ukraine “On Judiciary and Status of Judges”). In this case, such a decision is made by the body which appointed the member of the Commission (part 3 art. 96 of the Law of Ukraine “On Judiciary and Status of Judges).

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

Another staff scandal in the HQCJ demonstrates that different political forces are trying to establish or maintain control over this body by any means. These problems can only be solved by radical reload of HQCJ.



The Constitutional Court of Ukraine brought the usage of preventive measures into conformity with the European standards


1. CPLR expert opinion

On 25 of June, the Constitutional Court of Ukraine made a decision to recognize the unconstitutionality of provisions of part 5 art. 176 of the Criminal Procedural Code which provided for the exclusive use of detention in relation to persons suspected or accused in committing crimes against pillars of the national security including those connected with a terrorist organization. Alternative preventive measures such as personal commitment, guarantee given by another person, house arrest, and bail could not previously be used in relation to such persons.

The Constitutional Court opined that these provisions of the Code allowed detaining a person only on the ground of a formal court decision justified by the severity of the incriminated act. This did not ensure the protection of the constitutional right to liberty and security of the person (article 29 of the Constitution).

2. Respective authorities counter-point/argument The Prosecutor General immediately commented on this decision and claimed that it would result in “thousands of accused of terrorism being released”. He also urged the Parliament to enshrine in the Criminal Procedural Code a provision that detention was the only preventive measure for persons accused in crimes against the state. De facto the Prosecutor General suggested adopting a law similar to that which the Court declared unconstitutional. Such suggestions are manifestations of disrespect to the Constitutional Court and human rights.

3. CPLR assessment of the authorities counter-point

The decision of the Court to recognize the law as unconstitutional does not mean the automatic release of all persons suspected in terrorism as it might seem from words of the Prosecutor General Y. Lutsenko.

In every proceeding investigating judges shall consider the motion of prosecution party about prolonging detention. During respective hearings, a prosecutor must prove the validity of suspicions that a person committed a respective crime as well as one of the risks – hiding, destruction of evidence or traces of the crime, influence on witnesses, etc. If a person is suspected of committing a crime related to violence or death of persons, then a court is limited in the possibility to choose a bail as an alternative to detention.

However, there are other alternative preventive measures which allow for the prevention of the escape of suspected persons. They include, for instance, round the clock house arrest with electronic movement monitoring and removal of passports.

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

Constitution of Ukraine, Criminal Procedural Code of Ukraine.

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

The Prosecutor General shall direct prosecutors at proving the validity of suspicion and the presence of procedural risks during the procedure of preventive measures selection. The practice of using alternative preventive measures which prevent the escape of suspected persons shall be improved.