Weekly analysis for 29 May — 04 June

Verkhovna Rada excluded the land sector from the scope of the Law on Administrative Procedure, contrary to the EU requirements

Event

On May 22, 2024, the Verkhovna Rada adopted in the second reading the Law “On amendments to certain legislative acts of Ukraine to protect the interests of land share (unit) owners, as well as on application of administrative procedure in the area of land governance” (based on the draft law № 11150). Article 17-2 of the adopted Law provides for a number of exceptions on the application of the Law of Ukraine “On administrative procedure” (hereinafter – the LAP) in the sector of land relations. Thus, the land sector de facto is almost completely excluded from the scope of the LAP.

CPLR’s position

The CPLR strongly opposed any new exceptions concerning the LAP application to legal relations involving the adoption of administrative acts (except for those specified in Article 1(2) of the LAP on the date of its adoption in the second reading). This particularly concerns the land sector, where citizens suffer the most from arbitrariness of administrative authorities and need to protect their basic rights and legal interests, as provided by the LAP, and where a particularly careful balance of private and public interests is required.

, Article 17-2 of the law (based on the draft law № 11150) as adopted on May 22, 2024 provides for the following exceptions on the application of the LAP to the land sector:

– the administrative appeal is completely excluded (only court appeals are allowed) (parts 2 and 3 of Article 17-2); 

– decisions of the executive authorities, the Verkhovna Rada of the Autonomous Republic of Crimea, the Council of Ministers of the Autonomous Republic of Crimea, and local self-government bodies cannot be recognized as null and void (part 3 of Article 17-2);

– settlement of disputes between administrative authorities on the competence in the area of land relations by means of approval (adoption of an agreed decision) by the mentioned bodies or higher-level authorities, as well as administrative mutual assistance in the exercise of powers in the area of land relations is not allowed (part 4 of Article 17-2);

– submitting an application as appropriate or leaving it without consideration is not allowed (part 5 of Article 17-2);

– revocation of an administrative act for reasons of public need is not allowed without the consent of the person (part 6 of Article 17-2);

– measures of influence provided for in Article 93 of the LAP aimed at ensuring implementation of administrative acts in the area of land relations may be applied exclusively by court decision (application by administrative authority is not allowed) (part 7 of Article 17-2);

– explanations of witnesses, expert opinions and clarifications, and professional advice or explanations cannot be considered as evidence. When an administrative body or its official is making decisions, persons who contribute to the consideration of the case are not involved, and hearings are not held (part 10 of Article 17-2);

– reasoning (justification) of an administrative act in the area of land relations is not mandatory (p. 11 of Article 17-2), with a few minor exceptions; 

– administrative act in the area of land relations comes into force from the moment of its adoption, rather than from the moment a person was informed about it (p. 12 of Article 17-2).

Thus, these amendments provide for exclusions from the following basic principles of the LAP:

– the principle of ensuring the right of a person to participate in administrative proceedings (by banning hearings), even though the issues of land allocation pose the greatest conflicts for interested persons in accordance with the LAP;

– the principle of guaranteeing effective legal protection (by banning administrative appeals and deviating from the rules for the entry into force of administrative acts in this area – that is, citizens are directed only to court);

– the principle of legality (by limiting the powers of administrative bodies to terminate unlawful acts prematurely). At the same time, the issue of illegal development of shorelines and estates in nature reserves, misuse, and illegal use of land is highly topical in Ukraine;

– the principle of justification (a negative decision on land issues does not need to be justified) and other important provisions and principles of the LAP.

Thus, the above-mentioned provisions of the law (based on the draft law 11150) significantly restrict citizens’ right to good governance (ensured by the LAP) in the area of land management, without adequate justification. This draft law in essence narrows the rights of landowners and citizens who are entitled to receive a land plot, and provides them with fewer guarantees and protection mechanisms.

The law undermines the positive impact of the LAP and establishes an extremely dangerous precedent for other sectors.

Finally, it should be again emphasized that the European Commission, in its opinions on assessing Ukraine’s implementation of seven steps towards EU membership, named the LAP a key law for ensuring the right to proper administration and called on Ukraine to prevent new exclusions from the LAP.

Therefore, in the CPLR’s opinion, the law of May 22, 2024 should vetoed by the President of Ukraine, demanding the removal or substantial revision of provisions of Article 17-2 as contradicting Ukraine’s European integration obligations.

Verkhovna Rada will consider the creation of the Military Police

Event

On May 30, 2024, the Verkhovna Rada’s Committee on Law Enforcement decided to submit the revised version of the draft law “On Military Police” (Reg. № 6569-д) for registration, accompanied by the Committee’s opinion in favor of its adoption as a basis. Given the urgency of the issue of reforming the military justice system, which has emerged due to the full-scale invasion by the aggressor state troops into the territory of Ukraine, as well as the need to strengthen discipline in the Armed Forces of Ukraine, it is expected that the draft law will be adopted in the near future.

The draft law proposes the followings:

– establishing the Military Police as a military formation with law enforcement functions that is part of the security and defense sector, whose purpose is to ensure law and order and military discipline in the Ministry of Defense, the Armed Forces of Ukraine, and the State Special Transport Service;

– activities of the Military Police are directed and coordinated by the Cabinet of Ministers through the Minister of Defense (during martial law, the coordination and direction authority is directly assigned to the Commander-in-Chief of the Armed Forces of Ukraine);

– the main functions of the Military Police will include: 1) prevention, detection and cessation of criminal and administrative offenses among the military; 2) proceedings on administrative offenses in this area; 3) operational and investigative activities; 4) ensuring law and order and military discipline among military personnel, etc.;

– the military police will be staffed from among the Armed Forces of Ukraine personnel and may not exceed 1.5 percent of the total personnel of the Armed Forces of Ukraine;

– the Military Law Enforcement Service (MLES) is to be liquidated by the Ministry of Defense of Ukraine within three months from the date the Military Police launches its activity.

On May 31, the Ministry of Defense of Ukraine supported the creation of the Military Police and emphasized the need to empower the Military Police with the function of pre-trial investigation of criminal offenses, which is not provided for in the current version of the draft law.

The Draft Law № 6570-д on Amendments to the Code of Administrative Offenses, the Criminal Code of Ukraine, and the Criminal Procedure Code of Ukraine to introduce the Military Police and regulates its procedural aspects: expanding the powers to bring to administrative responsibility, introducing operational and investigative activities, etc.

CPLR’s assessment

In essence, the draft law concerns the reform of the military law enforcement service, which currently performs security function in the Armed Forces of Ukraine, namely by ensuring discipline and internal security in the Armed Forces of Ukraine, as well as by preventing offenses and assisting competent authorities in their investigation in case such offenses have been committed. At the same time, the MLES has no pre-trial investigation or counterintelligence functions and plays an important role in preventing and responding to offenses within the Armed Forces of Ukraine, which is especially important for maintaining discipline, since it is a guarantee of the Army’s combat capability.

As the authors of the draft law rightly pointed out in the explanatory note, “the current MLES in the Armed Forces of Ukraine does not have any powers to carry out operational search activities… the lack of proper search for deserters and other persons who have left their place of service without permission and the failure to ensure the inevitability of their punishment may negatively affect the state of combat readiness and law and order in the Armed Forces of Ukraine and other military formations. Inconsistencies, conflicts, and gaps in the current legislation, coupled with peculiarities of the state’s military structure, institutions of the Armed Forces of Ukraine, and other military formations point to the need for a comprehensive system of military justice in Ukraine, including the establishment of the Military Police, improvement of activities of military prosecutors, etc.”

Therefore, this is the first step in reforming the military justice system, namely the restructuring of the military law enforcement service into the Military Police by expanding its functions and powers. Back in 2021, the Strategic Defense Bulletin of Ukraine was approved (NSDC Decision enacted by the Decree of the President of Ukraine of September 17, 2021, № 473/2021), which provided for the reform of the MLES into military police and, resulting in achieving compatibility of the military police with the relevant structures of NATO member states – notably, vesting them with the authority to search for and detain servicemen, record crimes, and protect the rights of servicemen (NATO standard AJP-3.21).

Subsequently, a number of draft laws related to the reform of the MLES and the broader issue of establishing a new pre-trial investigation body, such as the State Bureau of Military Justice, which would be under the jurisdiction of the State Bureau of Investigation for War Crimes (crimes against the order of military service) (draft laws № 6569 of 28.01.2022; № 6570 of 28.01.2022; № 6569-1 of 15.02.2022; № 6570-1 of 15.02.2022; № 10042 of 13.09.2023 and others) were submitted to the Parliament.

The main differences between the proposed Military Police and the MLES are:

– expanding the authority in the area of administrative responsibility;

– introducing operational units authorized to carry out operational and investigative activities and to execute orders of the SBI investigator in the course of investigation of military criminal offenses;

– implementing the legal framework for the authority’s activities, appointment of its management, peculiarities of management under martial law, etc.

In other words, these differences revolve around: a) expanding powers; and b) regulating the legal framework of activities in accordance with NATO standards.

As already mentioned, the draft law concerns only one part of the military justice system. The current version of the draft law on establishing the Military Police leaves open the issue of pre-trial investigation of military criminal offenses. The Ministry of Defense also draws attention to the importance of this issue, urging for the Military Police to be vested with the function of pre-trial investigation of criminal offenses.

Currently, this is a key issue, as the State Bureau of Investigation is not sufficiently efficient in investigating this type of criminal offenses. In addition, the Bureau should focus on white-collar criminal offenses, including corruption and corruption-related mid-level criminal offenses, as well as human rights violations during the investigation of criminal offenses.

At the same time, the requirements for pre-trial investigation bodies and operational units are somewhat different; as such, simply vesting the Military Police with this function is premature. Instead, this should involve a separate law enforcement body – the State Bureau of Military Justice (or any other name of the body that reflects the scope of its activities) – or the Military Police should be vested with such authority only temporarily, for the duration of martial law.

Moreover, the issue of further reform of the SSU’s military counterintelligence and the specialization of prosecutors and judges as components of the military justice system in Ukraine remains open.

Therefore, the CPLR experts support the revised draft laws №6569-д and №6570-д, as long as they provide for a comprehensive vision of further development of the military justice system, primarily by addressing the issue of pre-trial investigation of military criminal offenses.