Weekly analytics for 1 — 7 March

Prime Minister Denys Shmyhal reports Ukraine has fulfilled all seven European Commission’s recommendations regarding accession to the EU

Event

On March 6, at the Government’s extraordinary meeting following the appointment of the National Anti-Corruption Bureau of Ukraine (NABU) director, Prime Minister Denys Shmyhal stated that Ukraine has fulfilled all seven recommendations of the European Commission regarding Ukraine’s accession to the EU, adding that the Cabinet of Ministers have been committed to the principle of zero tolerance towards corruption and support for anti-corruption institutions.

СPLR’s assessment

Considering Ukraine’s application for EU membership, the European Commission assessed the Ukrainian legal and political system’s compliance with the criteria set by the European Council. In the relevant opinion, the need to “continue structural reforms to remove corruption, reduce influence of the state and oligarchs, strengthen private property rights and enhance labour market flexibility” was separately emphasized. Along with this, the Commission outlined seven steps, the fulfillment of which will lead Ukraine to the status of a candidate for EU membership, adding that steps towards the EU can be reversed if the underlying conditions are not met anymore.

Therefore, objectively assessing the accuracy of the EU recommendations’ implementation, the anti-corruption reform has a discrete rather than a progressive nature. To confirm this, it is worth comparing the speed of appointment of the head of NABU, which took place immediately after submission of three candidates by the competition commission, and the speed of approval of the State Anti-corruption Program for 2023-2025 (SAP), which was delayed by almost two months from the deadlines established by the law.

Both events are definitely extremely important in the fight against corruption, but the newly appointed head of the NABU still has to demonstrate his effectiveness and independence, which will take some time, while during those two months that the draft SAP was pending in the Cabinet of Ministers, the mechanisms for its implementation could have already been launched and it would be working.

Qualitative component of the implementation of certain recommendations of the European Commission also appear dubious.

Step 1: enact and implement legislation on a selection procedure for judges of the Constitutional Court of Ukraine (CCU), including a pre-selection process based on evaluation of their integrity and professional skills, in line with Venice Commission recommendations;

On December 13, 2022, the Law “On amendments to certain legislative acts of Ukraine on improving the procedure for selecting candidates for the position of a judge of the Constitutional Court of Ukraine on a competitive basis” was adopted by the Parliament. The law determines the procedure for the competitive selection of candidates for the position of a judge of the CCU, as well as formation and functioning of the Advisory Expert Group (AEG), which must evaluate the moral qualities and competence of future judges of the CCU.

According to the adopted Law, the AEG consists of six members, one each from the President, the Verkhovna Rada, the Congress of Judges, the National Academy of Legal Sciences, the Congress of representatives of legal institutions of higher education and CSOs.

The European Commission “For Democracy through Law” (Venice Commission) recommended to add seventh member to the AEG under the international quota, but the President did not use the right of veto and signed the Law, not taking into account these recommendations and comments regarding the role of the AEG in the competitive procedure (for more details, see the CPLR’s expert assessment).

Thus, the first step was completed with reservations.

Step 2: finalise the integrity vetting of the candidates for the High Council of Justice (HCJ) members by the Ethics Council and the selection of candidate to establish the High Qualification Commission of Judges of Ukraine (HQCJ).

Implementation of this recommendation can be assessed as partial. On the one hand, the Ethics Council continues to evaluate candidates for the HCJ, and the activities of the HCJ itself were finally unblocked after a long time. On the other hand, the competitive selection for the HQCJ is still ongoing (on February 22, the interviews stage was ended, according to the results of which the names of 32 candidates must be submitted by the competition commission to the HCJ, 16 among which will be appointed to the HQCJ).

Given the fact that there are still vacant positions in the HCJ, it can be tentatively assumed that this second step has been partially completed.

Step 3: further strengthen the fight against corruption, in particular at high level, through proactive and efficient investigations, and a credible track record of prosecutions and convictions; complete the appointment of a new head of the Specialized Anti-Corruption Prosecutor’s Office through certifying the identified winner of the competition and launch and complete the selection process and appointment for a new Director of the National Anti-Corruption Bureau of Ukraine (NABU).

The level of implementation of this recommendation is rather difficult to assess since the fight against corruption is a permanent process. However, intermediate results may still be assessed.

Success of anti-corruption policy implementation, the principles of which, in accordance with the Law “On Prevention of Corruption”, are defined by the Anti-Corruption Strategy (approved by the Parliament) and refined in the SAP (approved by the Cabinet of Ministers) is one of the indicators. Last June the MPs completed their part of the task. After that, the National Agency for Corruption Prevention (NACP) had five months to develop the draft of the SAP and submit it to the Government for approval, that was successfully and timely done: on December 10, the draft SAP was sent to the Secretariat of the Cabinet of Ministers of Ukraine. After that, the document has undergone a number of changes, as it was returned for finalization several times, first by the Government Committee on National Security and Defense and Law Enforcement and then by the Government itself.

Currently it is difficult to analyze the SAP approved on March 3, as the final version of the document is not publicly available. However, the trend of emasculating important measures, which began to develop at the stage of approval of the draft with state bodies, is cause some concerns. Therefore, it is not yet known to what extent the SAP will contribute to achieving the expected results of the Anti-corruption Strategy.

Moreover, the declarations of persons authorized to perform the state or local self-government functions and the submission of financial reports of political parties have not yet been restored. The process was suspended back in 2020 due to the introduction of anti-pandemic measures, which are de facto nullified today.

Despite the fact that the leadership of anti-corruption bodies is fully staffed, this step has still been only partially completed.

Step 4: ensure that anti-money laundering legislation is in compliance with the standards of the Financial Action Task Force (FATF); adopt an overarching strategic plan for the reform of the entire law enforcement sector as part of Ukraine’s security environment.

The Parliament carried out its part of these recommendations in exactly the opposite way, by adopting the Law which contradicts the FATF standards and weakens financial monitoring of public figures.

As for reforming the law enforcement sector, there was also no significant progress. An interdepartmental working group created at the Prosecutor General’s Office developed a draft of a comprehensive strategic plan for law enforcement reform, which was sent to the President of Ukraine at the beginning of the year. However, the President has not yet approved it.

Therefore, this step towards the European Community has not been fulfilled.

Step 5: implement the Anti-Oligarch law to limit the excessive influence of oligarchs in economic, political, and public life; this should be done in a legally sound manner, taking into account the forthcoming opinion of the Venice Commission on the relevant legislation.

The Law “On preventing threats to national security associated with excessive influence by persons who wield significant economic and political weight in public life (oligarchs)” entered into force in November 2021. At the same time, the Government approved the Plan of anti-oligarchic measures, which includes 20 points. As for today, only 5 of them have been implemented, in particular regarding adoption of the Anti-Corruption Strategy and the approval of the SAP.

Already in February of this year, the Cabinet of Ministers changed this Plan, postponing the implementation of almost half of the measures until the opinion of the Venice Commission will be prepared. Therefore, at present this step has not been completed.

Step 6: tackle the influence of vested interests by adopting a media law that aligns Ukraine’s legislation with the EU audio-visual media services directive and empowers the independent media regulator.

Implementation of this recommendation was noted as the most successful by various experts. On December 13, 2022, the Law “On Media” was adopted, which applies to all possible forms of media and strengthens protection of cultural and information space of Ukraine and the state language. However, the recommendation of the European Commission mention overcoming the influence of vested interests as the priority task.

The CPLR’s experts have already analyzed whether the Law meets this criterion exactly. The conclusion is not as optimistic. The National Council for Television and Radio Broadcasting (the state regulator in the media area) remains a politically dependent authority. The adopted Law “On Media” does not contain provisions that would contribute to the development of healthy competition in the media area. The media themselves and Western partners have repeatedly drawn attention to the harmfulness of a single telethon for the development of television, freedom of speech and free competition in the media sphere. The state budget for 2023 envisions almost UAH 2 billion in expenditures for the telethon, part of which will be spent on financing the TV channels owned by Kolomoiskyi and Pinchuk. So, it is a rhetorical question on whether oligarchs receive any benefit from the state during the war.

For the sake of objectivity, it should be noted that a significant part of provisions of the EU Directive on audiovisual media services has been implemented in the Ukrainian legislation, so this step has been partially completed.

Step 7: finalise the reform of the legal framework for national minorities currently under preparation as recommended by the Venice Commission, and adopt immediate and effective implementation mechanisms.

On December 13, 2022, the Verkhovna Rada adopted the Law “On National Minorities (Communities) of Ukraine” in record speed (less than three weeks passed between the registration of the draft law and the adoption of the law). Despite such a rapid pace, the Law in general received favorable opinion from experts, but neither the draft nor the Law itself was sent to the Venice Commission for assessment, so it is impossible to take into account its recommendations. Furthermore, the European Commission noted that such a law should not only be adopted, but also implemented, so this step has currently been partially completed.

Certainly, some of the recommendations of the European Commission are formulated in such a way that it is difficult to assess the level of their implementation. For example, this includes “credible track record of prosecutions and convictions”. It is difficult to say what number of prosecutions and convictions will be considered credible by the Western partners. Obviously, a certain methodology for such assessment should be developed. But even if we take into account only that part of the recommendations the implementation of which falls under the competence of the Cabinet of Ministers, it is too early to talk about the implementation of all seven recommendations, since adoption of laws must be followed by the process of their implementation, following which it can be stated that the step has been completed.

In any case, it is clearly premature to state that “Ukraine has fulfilled all seven recommendations of the European Commission regarding accession to the EU”.

The Constitutional Court of Ukraine ruled unconstitutional parts of the 2019 prosecutorial reform

According to the mentioned provision of the Law № 113 – “from the date of entry into force of this Law, all prosecutors of the Prosecutor’s General Office, regional prosecutor’s offices, local prosecutor’s offices, and military prosecutor’s offices are considered to be personally properly warned about possible future dismissal from position on the basis of paragraph 9 of part one of Article 51 of the Law of Ukraine “On the Prosecutor’s Office”.

Previously, the Constitutional Court of Ukraine (Decisions of 21.07.2021 № 4-р(II)/2021), addressing similar constitutional issue regarding “police evaluation”, noted that “the Verkhovna Rada of Ukraine shall not dismiss an individual employee or certain categories of employees and notify them of a possible future dismissal by adopting the laws that are legislative acts. The dismissal is possible not on the basis of the law, but only on the basis of an individual act of law, which the Verkhovna Rada of Ukraine does not have the authority to adopt.”

Therefore, since the Constitution of Ukraine does not contain a provision that empowers the parliament to adopt law-enforcement acts in the dismissal procedure, there are reasons to believe that the contested provision of the Law № 113 was adopted by the Verkhovna Rada of Ukraine beyond its constitutional powers.

The Constitutional Court of Ukraine also found the contested provision of the Law № 113 inconsistent with the principle of rule of law, or rather its component – legal certainty. The use of the phrase “possible future dismissal” led to a contradiction in its content, since any prosecutor could consider that this order constitutes either a notice of further inevitable dismissal from the position, or that the dismissal in the future could not be applied and count on further tenure under certain conditions.

Therefore, the contested provision of Law № 113 cannot be considered as “legislation” in a state governed by the rule of law. The Constitutional Court ruled it unconstitutional due to the following fact:

CPLR’s assessment

The issue of the unconstitutionality of certain provisions of the Law of Ukraine “On amendments to certain legislative acts of Ukraine regarding priority measures of the reform of prosecutor’s office” of September 19, 2019 № 113-IX arose during its consideration in the Parliament. This draft law initiated the reform of the prosecutorial bodies, which was part of the political program of the newly elected President and the new Parliament, which appointed R. Ryaboshapka as Prosecutor General.

Regarding the draft Law № 1032 of August 29, 2019, the Parliament’s Main Scientific and Expert Department (MSED) and Main Legal Department indicated in their opinions that “such legislative prescriptions are discriminatory and contradict the requirements of Part 3 of Art. 22 of the Constitution of Ukraine, which prohibit to narrow the content and scope of existing rights and freedoms in adopting of new laws or amending existing laws“.

In 2017, the Group of States Against Corruption (GRECO; a body of the Council of Europe) in the report on Ukraine’s compliance noted recent positive reforms aimed at strengthening prosecutorial self-governance, the autonomy of prosecutors and also emphasized the role of the Qualifications and Disciplinary Commission of Prosecutors as one of “guarantees of independence and autonomy of prosecutors“. After that, GRECO noted that the “new law” (№ 113-ХХ) on the reform of prosecutor’s offices drastically changes the situation assessed at the time of the evaluation visit, altogether suspending the prosecutorial self-government bodies, in particular, the QCJ for a provision period until September 1, 2021, with insufficient clarity on how their work will resume” (paragraph 133). Therefore, GRECO expressed “the most critical concerns regarding the suspension of the self-governing bodies, as these bodies are guardians of the independence and autonomy of prosecutors and should be in place to shelter the prosecution service from undue political influence, both real and perceived”. Moreover, “replacing the current system for recruitment and career progression of prosecutors with personnel commissions, without regulating by law their composition, functions and procedures, is clearly unsatisfactory” (paragraph 134).

Furthermore, as noted at the meeting of the Committee of Ministers of the Council of Europe in June 2020, the draft law introducing the prosecutor’s evaluation was not fully analyzed and was adopted without prior in-depth consultations with national stakeholders or international expertise. It was also separately emphasized that the competence, especially discretional, in matters of selection, professional training, career management and dismissal from the ranks of the prosecutor’s office should not be left to the Prosecutor General’s discretion. The Council of Europe insisted on restoration of procedures and authorities responsible for the selection of prosecutors, their professional training, promotion and dismissal. Such restoration happened only in the fall of 2021, when the two-year period of suspension of the activity of this body provided by the Final and Transitional Provisions of Law № 113-IX was expired.

In general, the issue of e of law evaluation of law enforcement agencies and the prosecutor’s office has always been problematic precisely due to the approach – automatic evaluation of all employees within the framework of the reform. Instead of increasing attention to measures regarding countering the disciplinary offenses, anti-corruption measures, implementation of effective system for evaluation of working efficiency, etc., the path of total evaluation is often chosen, which is difficult to implement in practice, both from the point of view of choosing the criteria and narrowing the guarantees of activities.

This especially applies to the guarantees of the prosecutor’s professional activity, which is properly noted by the CCU in its Decision: “The Constitutional Court of Ukraine states that since September 30, 2016, the prosecutor’s office is institutionally an element of the general system of justice, which requires the state to ensure the independence of the prosecutor. Ensuring adequate guarantees against illegal dismissal of prosecutor whose activities are related to the functioning of justice system is not only an element of the prosecutor’s status, but also one of the preconditions for implementation of the constitutional right to judicial protection. Therefore, the dismissal of any prosecutor is possible only in the manner and on the grounds established by the law, which provisions must meet the requirements of the rule of law, and must be aimed at achieving a legitimate goal, while the means used during the dismissal must be reasonable (proportional)”.

It is for this reason that the Constitutional Court of Ukraine found that specific wordings of this Law can be differently interpreted, and the prosecutor to whom they are addressed cannot coordinate his future actions due to ambiguity.

Since exactly this element of the prosecutorial reform was the subject of the constitutional complaint, the question of constitutionality of the entire reform process was not raised. However, the Court came to the conclusion that the purpose of adoption of the contested provision of the Law № 113 is generally justified given the “personnel reboot” of the prosecution.

Regarding the practical consequences of the Decision № 1-r(II)/2023

During 2019-2021, the evaluation of prosecutors of the Prosecutor General’s office, regional and district (local) prosecutors’ offices was gradually conducted. A number of lawsuits were submitted to the administrative courts to overturn the evaluation results and recognize it illegal. Some of the claims were satisfied, some were rejected, but there a no information on the final number both the claims that are currently under consideration and those in which a decision was made in favor of the plaintiff. As well as regarding compensation amount. We can state that judicial practice is non-uniform, at the same time the appeals based on various grounds, not only those considered in the Decision of the CCU № 1-р(ІІ)/2023. Furthermore, it is always possible to appeal to the ECtHR, especially in view of the guarantees of the prosecutor’s profession as a part of justice (mutatis mutandis to the Decision of the ECtHR in the case “Gumenyuk and others v. Ukraine”, № 11423/19, § 43).

We assume that the number of complaints in which the very provisions ruled unconstitutional in the Decision of the CCU № 1-р(ІІ)/2023 are insignificant compared to those related to the cancellation of decisions of evaluation commissions due to the lack of clear evaluation criteria, bias of commission members etc. After all, it is about those persons who did not apply with intent to continue serving in the prosecutor’s office (which is equivalent to a consent to participate in the evaluation).

The Constitutional Court of Ukraine, in the resolutive part of Decision № 4-р(II)/2021 of 21, July, 2021 on “police evaluation”, made a reservation regarding the following:

 “The decision of the Constitutional Court of Ukraine does not apply to legal relations that have arisen after the Clause 8 of Chapter XI “Final and Transitional Provisions” of the Law of Ukraine “On the National Police” of July 2, 2015 № 580-VIII has entered into force and continue to exist after adoption of the Decision by the Constitutional Court”. In other words, the Court did not call into question the results of police officers’ evaluation to avoid legal chaos caused by adopted decision. Although the Court refers to this decision in motivation part of Decision № 1-r(II)/203, however there are no similar reservations in the resolution part. At the same time, the Constitutional Court of Ukraine does not make such a reservation, we consider this legal position stable and such, as does not call into question the evaluation results. Therefore, the Court in the decision notes only the right to compensation for damage – “a person who has suffered material and moral damage as a result of application of the contested provision of the Law № 113 has the right to compensation in case the contested provision of the Law No. 113 is ruled unconstitutional” (p. 5 of the Decision).

Thus, the practical consequence of the Decision should be compensation for damages to persons who did not submit an application with an intent to continue their service in a prosecutor’s office, rather than to all prosecutors who underwent evaluation.