Weekly analysis for 15 – 21 May

The Verkhovna Rada continues the negative practice of exemptions from the Law of Ukraine on Administrative Procedure contrary to EU requirements

Event

The Verkhovna Rada has adopted in the first reading Draft Law No. 11150 “On Amendments to Certain Legislative Acts of Ukraine on Protection of Interests of Owners of Land Shares (Units) and Application of Administrative Procedure in the Field of Land Relations”. Article 17-2 of the draft law provides for a number of exceptions for the land relations sector to apply certain provisions of the Law of Ukraine “On Administrative Procedure” (hereinafter – the LAP).

Update: On May 22, 2024, the Verkhovna Rada of Ukraine voted in the second reading for the law in an even worse version than experts could expected. In particular, the CPLR expert, Viktor Tymoshchuk, points out that “Article 17-2 is an example of the actual exemption of the land relations sphere from the LAP, as exceptions are made:
– from the principle of ensuring the right of a person to participate (by prohibiting hearings. Although it is in the issues of land allocation that there is the greatest conflict and stakeholders in accordance with the LAP);
– the principle of guaranteeing effective remedies (through the prohibition of administrative appeals and deviations from the rules for the entry into force of administrative acts in this area. That is, everyone is pushed to go to court, and most likely to civil/commercial court, not administrative court);
– limitation of the principle of legality (by restricting the powers of administrative bodies to terminate unlawful acts. As if we don’t have illegal construction of shorelines and estates in nature reserves or misuse and illegal use of land);
– limitation of the principle of reasonableness (a negative decision on land issues may not be motivated)”.

CPLR experts’ assessment

The CPLR does not support any new exceptions to the non-application of the LAP to certain legal relations where administrative acts shall be adopted (except for those enshrined in part 2 of Article 1 of the LAP at the time of its adoption in the second reading). 

Article 17-2 of the Draft Law No. 11150 provides for the following exceptions to the application of the LAP to the land sector: 

– the possibility of administrative (out-of-court) appeal by a person against actions or inaction of the competent authorities in the field of land relations is completely excluded. In certain areas, there may be only judicial appeal. It is necessary to take into account that this negatively affects the possibility of legal protection. After all, not all citizens are ready to go to court (it is complicated, time-consuming, requires payment of court fees, etc.) In the land sector, both local governments and the State Geocadastre (including certified land surveyors) and other bodies can make mistakes. Administrative appeal allows for prompt correction of such errors without unnecessary time and financial costs for the complainant;

– it is envisaged that decisions of competent authorities in the field of land relations may be recognized as invalid and null and void only by a court decision. However, the nullity of an administrative act does not require confirmation of this fact at all. This is the right of a person. As for the recognition of such an act as void by a court, we cannot agree at all. According to the LAP, this is a mechanism applied to an unlawful administrative act by the administrative body that adopted it;

– it is envisaged that motivation (justification) of an administrative act that terminates the right to permanent use of a land plot with the consent of the subject of such right is not mandatory. However, if such an act is positive for the person, it should not contain a motivating part in principle. If the act is negative for its addressee, the motivation must be provided;

– an administrative act in the field of land relations, according to the draft law, comes into force from the moment of its adoption, but not from the moment of its notification to the person, as provided for by the LAP. Such a provision is unacceptable, since a negative decision may be made against a person and he or she may not even know about it for some time. That is why the adoption of the LAP was intended to solve this problem among other things and to ensure basic rights of proper administration in accordance with the EU Charter of Fundamental Rights. 

Finally, it should be emphasized that the European Commission, in its conclusions on the assessment of Ukraine’s implementation of the seven steps towards EU membership, called the LAP a key law for ensuring the right to proper administration and urged Ukraine to refrain from new exceptions to this law. Draft Law No. 11150 is a kind of exemption of certain relations from the LAP, due to a significant number of exceptions and unjustified deviations from the LAP rules.

Therefore, in the CPLR’s opinion, Draft Law No. 11150 should be substantially revised before the second reading, excluding the provisions from Article 17-2 that are not acceptable for the proper implementation of the LAP.

The Verkhovna Rada of Ukraine appointed a new judge of the Constitutional Court of Ukraine

Event 

Today, on May 23, the Verkhovna Rada of Ukraine voted to appoint a judge of the Constitutional Court of Ukraine based on the results of the competitive selection conducted by the Advisory Group of Experts. The new judge became Serhiy Riznyk, Professor of the Department of Constitutional Law, Vice-Rector for Scientific and Pedagogical Work and International Cooperation at the Ivan Franko National University of Lviv 

The Centre of Policy and Legal Reform congratulates Mr. Riznyk on his appointment as a judge of the Constitutional Court of Ukraine and expressed its support to him during the competitive selection!

CPLR experts’ assessment

In general, based on the results of the competitive selection, the Advisory Group of Experts recognized three candidates as “meeting” the criterion of high moral qualities and a recognized level of competence in the field of law.

This, in turn, means that the competition was terminated for two of the three vacant positions of CCU judges under the Parliament’s quota due to the insufficient number of candidates to continue the competitive selection for these two vacant positions. In total, the competitive selection was held for five vacant positions (three vacancies under the Parliament’s quota and two from the Congress of Judges). In total, the Parliament admitted 25 candidates to the competitive selection.

We remind that in accordance with the fourth paragraph of Article 10-8(6) of the Law of Ukraine “On the Constitutional Court of Ukraine”, if the results of the assessment show that the number of candidates meeting the criterion of a recognized level of competence in the field of law is less than two persons for one vacant position of a judge of the Constitutional Court, the competition commission, the Committee, the Council of Judges of Ukraine must immediately, but not later than twenty days, announce a new competitive selection for such a vacant position. 

On May 16, the Verkhovna Rada Committee on Legal Policy announced the start of a new competitive selection of candidates for the position of CCU judge. The decision of the Council of Judges of Ukraine of April 11, 2024 also announced the start of a new competitive selection.

In addition, on May 7, the Advisory Group of Experts received from the competition commission the documents of ten candidates for the position of CCU judge under the quota of the President of Ukraine, which means the start of the 4-month competition period. More details on the list of candidates admitted to the competition can be found here.

The CPLR positively assesses the exercise by the Parliament, the President of Ukraine and the Congress of Judges of Ukraine of their appointment powers and hopes that the vacant positions will be filled as soon as possible for the full and effective work of the Constitutional Court.