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Weekly analytics for 1 – 8 June 2020

08.06.2020

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. 

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

Upon submission of the President, the Parliament granted unjustified privileges to judges of the Supreme Court

During the second reading, the draft law was substantially revised and supplemented with norms that provide for the powers of the High Council of Justice (hereinafter – the HCJ):

  •  at the request of the High Qualifications Commission of Judges of Ukraine (hereinafter – the HQCJ) – to terminate the judge’s secondment ahead of schedule, if the circumstances that were the basis of the secondment ceased;
  •  for the period of absence of the authorized composition of the HQCJ to independently:

send judges to another court of the same level and specialization;
terminate the judge’s secondment ahead of schedule;
transfer judges from courts in the occupied Crimea to other courts;
present submissions to the President on the permanent appointment of judges whose 5-year term of office has expired and who have passed the qualification assessment;
present submissions to the President on the appointment of a retired judge to a court of the same specialization and not of a higher level (except for the Supreme Court), if he/she has passed the qualification assessment.

CPLR assessment

The adopted law provides for alternative methods of conducting the necessary procedures for the judiciary, in this case – the organization of secondment, transfer and appointment of judges in conditions where the HQCJ is not operational. However, the legislator should first of all take steps to create a HQCJ on a competitive basis as soon as possible, instead of temporarily transferring part of its powers to the HCJ, which is burdened with other tasks.

1. The adopted law stipulates that in the absence of an authorized composition of the HQJC, the HCJ may submit a petition to the President for the appointment of a judge whose term of office has expired (so-called “five-year judges”), if the HQCJ panel has established his/her suitability.

However, in the presence of the opinion of the Public Council of Integrity (hereinafter – the PCI), a judge is considered to have passed the qualification assessment only if the decision of the HQJC panel is supported at the plenary session of the HQJC by at least 11 members. Based on the content of paragraph 4.10.5 of the Rules of Procedure of the HQJC, the decision of the panel to confirm the judge’s ability to administer justice in the relevant court in the presence of the PCI opinion comes into force only after it was supported at the plenary session of the HQJC (see, for example, the HQCJ decision of 31.10.2019 concerning the judge Y. Berlimova).

Based on this, a conclusion can be made that in order to be appointed on a permanent basis, a judge must successfully pass a qualification assessment, i.e. the decision of the panel must has come into effect. For example, such a requirement is enshrined in another provision of this Law on the appointment of “five-year judges” from the occupied Crimea. However, in practice there may be attempts to appoint judges with negative PCI conclusions, who were successfully assessed by the HQJC panels, bypassing the scheduled plenary sessions of the HQJC.

In addition, it should be noted that the transitional provisions of the Law “On the Judiciary and Status of Judges” stipulate that “five-year judges” whose term of office has expired must pass a competitive selection in order to be appointed. The constitutionality of this provision was confirmed by the Constitutional Court in February 2020. Instead, the Law “On the High Council of Justice” stipulates that such judges shall be appointed on a permanent basis only if they successfully pass the qualification assessment. That is, there is a legislative conflict, and the adopted law not only fails to resolve it, but also deviates from the provision, the constitutionality of which was confirmed by the Constitutional Court.

In the long run, the permanent appointment of “five-year judges” without competition, only on the basis of the results of the qualification assessment, may become a basis for challenging their authority in the context of the requirement of a “court established by law”.

2. The revised law only partially removes the risks associated with the HCJ’s right to terminate a judge’s secondment ahead of schedule. Compared to the original version, the law added provisions that the secondment may be terminated early if the circumstances that became the basis for it ceased.

However, there are no sufficient guarantees for the protection of judges from the abuse of this institution by the HQJC or the HCJ (especially when the HCJ decides at its own discretion at the absence of the HQCJ) or its ineffective use. For example, a seconded judge may have a large number of cases that he or she has been considering for a long time (including criminal proceedings, which sometimes take years). Instead, the HCJ’s unilateral decision to terminate the judge’s secondment early, without taking this into account, will lead to redistribution of these cases to other judges and, consequently, to the need to consider them from the very beginning.

Guarantees of protection of judges from unjustified termination of a secondment may be enshrined in law as an obligation of the HQJC and the HCJ to ask for the opinion of the judge and the chairman of the court on this issue.

3. The law does not determine the procedure for the secondment of judges by decision of the HCJ, if there is no authorized composition of the HQJC, in particular, it is unclear who should initiate this issue before the HCJ and the terms of its consideration.

CPLR experts recommended to transfer the decision on this issue to the local level, in particular, the initiation of the secondment should be carried out at the request of the chairman of the court (in the absence of judges in the court – the Chairman of the State Judicial Administration) and the judge’s application. In this case, the chairman of the court would be obliged to justify the need for a secondment. This would ensure quick identification and resolution of the court overload problem, as well as simplify unnecessary bureaucratic procedures.

In summary, the law has a number of significant shortcomings that can lead to problems in its application in practice, in particular: the possibility of appointing “five-year judges” outside the statutory competition procedure; inconsistency of its provisions with the provisions of the law on the judiciary regarding the role of the PCI in the assessment of judges; unclear mechanism for the organization of secondment of judges, if the HQCJ does not function; significant risks associated with the consolidation of the HCJ’s authority to terminate the secondments of judges ahead of schedule. These shortcomings should be eliminated either during the finalization of the law in the event of its veto by the President, or in the process of further improvement of the legislation.

Alternative draft law on the penalties for judges for unjust decisions has been introduced in Parliament

Event

On June 2, a draft law No. 3500-1 “On Amendments to the Criminal Code of Ukraine on the Liability of a Judge (Judges) for Issuing an Unjust Decision” was submitted the Verkhovna Rada. It is an alternative to the draft law introduced in mid-May No. 3500 (see weekly analysis of May 18-25, 2020).

Alternative draft law proposes a new wording of Article 375 of the Criminal Code. Unjust court decision means a decision rendered with an intentional violation of the legal procedures established by law, which is manifested in:

  •  consideration of the case: by an unauthorized (illegal) court composition; not under jurisdiction of the court in which the judge (judges) work; which the judge (judges) could not consider and were subject to removal (self-removal);
  •  decision-making: in a case without the participation of the parties who have not been duly notified of the time and place of the hearing (if such notification is mandatory); on the rights and obligations of persons who were not involved in the case; not by those judges who were members of the panel hearing the case;
  •  violation of the requirements of the criminal procedure law, which are determined by this law to be significant.

Under this article, the corpus delicti is present in the actions of a judge only if the said actions were committed for lucrative motives or in other personal interests.

CPLR assessment

The key disadvantage of the draft law is that it significantly narrows the definition of an unjust court decision, limiting it only to decisions issued in violation of certain requirements of procedural law. In fact, according to the authors of the draft law, for the purposes of criminal liability, only the method of decision-making is important, not the content of a decision. According to the proposed wording of the article, a judge is not subject to criminal liability for a decision made with intentional misapplication of substantive law or distorted assessment of the facts of the case. That is, even if a judge deliberately made an obviously illegal and unreasonable decision, but did so in accordance with the rules of jurisdiction, in the absence of grounds for disqualification, with due notice of all interested parties, he or she will not be criminally liable for such a decision.

In view of the above, it is advisable to reject the draft law No. 3500-1 and take the draft law No. 3500 as a basis for clarifying the wording of Article 375 of the Criminal Code with its further improvement.

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

Event

On June 2, the Constitutional Court received a submission from 58 people’s deputies on certain provisions of the Law “On the State Bureau of Investigation” (as amended).

The subject with the right to a constitutional submission considers that a number of provisions of the said Law do not comply with the Constitution, taking into account the amendments introduced by the Law of December 3, 2019 No. 305-IX. In particular, according to the authors of the submission, the following provisions are unconstitutional:

  •  provisions of Article 1 regarding the definition of the status of the SBI as a “state law enforcement body”;
  •  second paragraph of the first part of Article 9 on granting the President the authority to approve the organizational structure of the SBI;
  •  part one of Article 11 on granting the President the power to appoint and dismiss the director of the SBI;
  •  paragraph one of part three of Article 11 on granting the President the power to appoint three persons to the competition commission for the election of the director of the SBI;
  •  part two of Article 28 on granting the President the power to approve the regulations on the Public Control Council and the procedure for its formation.

CPLR assessment

Amendments to the Law “On the State Bureau of Investigation”, which were adopted by the Law of December 3, 2019 No. 305-IX, were proposed by the draft law No. 2116. Even before considering the draft law No. 2116 in the second reading, the CPLR experts stressed that many proposals of the draft law contradict the Constitution.

The Constitution does not provide for the existence of law enforcement agencies (law enforcement agencies) outside the system of executive bodies headed by the Cabinet of Ministers.

Later, in its conclusion of December 16, 2019 No. 7-v/2019, the Constitutional Court stated that the situation when the pre-trial investigation bodies are 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 violates the balance of constitutional powers between the President and the Cabinet of Ministers of Ukraine and effectively creates a parallel executive branch of power under the President. As a result, such a concentration of power weakens the constitutional guarantees of rights and freedoms. After all, the separation of powers is the main principle 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.

Therefore, the current status of the SBI as a state law enforcement body located outside the system of executive bodies headed by the Cabinet of Ministers is not in line with the Constitution.

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. The Constitutional Court has emphasized this many times, in particular, in its decisions of 10 April 2003 No. 7- рп /2003; of 25 December 2003 № 22-рп/ 2003; of 07 April 2004 No. 9- рп/2004; of 16 May 2007 No. 1- рп/2007; of 08 July 2008 No. 14-рп/ 2008; of 02 October 2008 No. 19-рп/2008; of 08 October 2008 No. 21-рп/2008; of 07 July 2009 No. 17-рп/2009; of 15 September 2009 No. 21-рп/2009; of 17 December 2009 No. 32-рп/2009; of 10 June 2010 No. 16-рп/2010; No. 5-p/2019 of 13 June 2019 and others.

In view of this, the authors of the constitutional submission rightly insist that the additional powers of the President, which are provided by the Law “On the State Bureau of Investigation” (as amended), are not in accordance with the Constitution.

The Constitutional Court is also considering another submission on the Law “On the State Bureau of Investigation” (dated August 29, 2019). The subject of the right to a constitutional submission (45 people’s deputies) questions the constitutionality of the provisions of this Law in terms of:

  •  the authority of the President to appoint the director of the SBI;
  •  powers of the President to appoint three members of the competition commission for the position of the director of the SBI, his/her first deputy and deputy;
  •  obligation of the director of the SBI to inform the President on the main operating issues of the SBI and its subdivisions, on the implementation of the tasks assigned to them;
  •  obligation of the SBI to submit annually to the President a written report on the activities of the SBI for the previous year.