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Weekly analytics for 11 – 17 January 2022

18.01.2022

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combating 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.



Judicial Governance Reform Moves into Active Phase


Event

On January 12, a regular session of the Ethics Council took place, at which dates were set for interviews with candidates for the High Council of Justice (HCJ) members under the quotas of Parliament, scholars, and judges. Interviews will be conducted from January 31 to February 10. Furthermore, the Ethics Council did not admit for interviewing the Ordzhonikidze District Court of Zaporizhia judge O. Boyko due to uncovered facts of dishonest behavior. Earlier, the Ethics Council did not admit S. Yuldashev for interviewing due to information that prevents him from holding the position of an HCJ member that was discovered during a special review.

On January 21, the first official session of the Competition Commission for the selection of candidates for the positions of the High Qualifications Commission of Judges members (hereinafter HQCJ) will take place; the agenda is not yet available.

CPLR’s assessment

  1. The interview is the final stage of the Ethics Council’s candidate selection for the HCJ members, based on the results of which a list of candidates recommended for appointment is to be formed (at least two candidates per each vacant position). As a reminder, after this stage, the Ethics Council will begin assessing the current HCJ members. As previously reported by the CPLR experts, such an assessment will be carried out as the filling of vacant positions progresses, taking into account the need to ensure the presence of authorized composition of the HCJ. At the same time, regardless of the number of the filled HCJ positions, the Council will start assessing the current remaining HCJ members no later than February 8, 2022.
  2. The first composition of the Competition Commission for the selection of members of the HQCJ was formed on September 17, 2021. In the opinion of the CPLR experts, at its first session, the commission will consider matters such as approving the competition procedure for the positions of the HQCJ members and the methodology for assessing the integrity and professionalism of candidates, as well as announce the launch of the competition. At the very least, these documents are required by law in order to begin the process of the HQCJ members selection.

Will there be a new Law on Service in Local Self-Government Bodies?


Event

The current Law “On Service in Local Self-Government Bodies” is long overdue to be revised. On January 5, 2022, the Government draft Law № 6504 “On Service in Local Self-Government Bodies” was registered in the Verkhovna Rada. However, it should be taken into account that the draft Law № 1223 of September 2, 2019 “On Amendments to the Law of Ukraine “On Service in Local Self-Government Bodies” is under Parliament’s consideration. It has been initiated by the member of the Parliament A. Shkrum. Both draft laws are aimed at establishing new legal and organizational principles of service in local self-governments.

CLPRs assessment

Legislative regulation of service in local self-government bodies and civil service has always been carried out in parallel, as service in local self-government bodies and civil service are alike types of public service. The new Law of Ukraine “On Civil Service” was adopted in 2015. At this time the Law “On Service in Local Self-Government Bodies” has undergone only technical amendments and no fundamental substantive updates were made.

Ideally, the Parliament would have considered the draft law № 1223 a long time ago, but it remains in the status of “submitted for examination”. It is known that it was a draft law prepared by the members of the relevant committee of Verkhovna Rada of the past convocation and experts of the Association of Ukrainian Cities.

Draft law № 6504 also governs the relations arising in connection with the entry of citizens of Ukraine the local self-government service, the exercise of public functions, defines the legal status of local self-government officials, features in the area of elected local government officials service, as well as labor relations arising in connection with patronage service implementation.

As a positive, the lawmakers’ efforts to make distinctions between the status of local self-government officials and elected local self-government officials must be noted. However, further technical and legal revision of the articles regulating the legal status of elected officials is still required.

The procedural problem is that draft law № 6504 is not defined as an alternative to the draft law № 1223. Although in fact it is an alternative because it contains provisions that regulate the same range of issues and essentially repeat the provisions on the regulation of the same social relations (sec. 1 of art. 100 of the Rules of Procedure of the Verkhovna Rada). Non-admission of the draft law № 6504 as alternative is violating the Rules of Procedure of the Verkhovna Rada.

However an alternative draft law must be introduced no later than 14 days after the day of submission to the members of the Parliament of the first draft law on the respective issue (sec. 2 of art. 100 of the Rules of Procedure of the Verkhovna Rada). As the draft law № 6504 was introduced more than 2 years later, in accordance with sec. 2 of art. 92 of the Rules of Procedure of the Verkhovna Rada, its acceptance for registration should be denied, as the deadline for submitting an alternative draft law has been violated.

In the draft law № 6504, there are many provisions borrowed from the draft law № 1223. Both draft laws are conceptually identical on many issues, although there are some differences. For example, there is no repeat competition procedure in the draft law № 6504. According to the draft law № 1223, the competition commission makes proposals to the village, town, city, district, city districts councils, and regional council regarding two candidates for the vacant position in category I, based on the results of the general rating, or regarding one candidate – in case of absence of another candidates. And according to the draft law № 6504, the winner of the competition is appointed to the position of a local self-government official.

In our opinion, the draft law № 1223 should have been considered in accordance with the procedure established by the Rules of Procedure of the Verkhovna Rada. And, if necessary, it should have been revised between first and second reading.

The opinion of the committee responsible for parliamentary procedure, finding the draft law registered contrary to the Rules of Procedure (p. 2 sec. 2 of art. 94 of the Rules of Procedure of the Verkhovna Rada) is ground for returning the draft law № 6504 to the entity that has the right to initiate legislation, without its inclusion in the agenda and consideration at the plenary session.

There is another way to address this issue: to recommend both the member of the Parliament and the Government to withdraw their draft laws. After that, the government draft law should be registered as a new draft law, and it can be taken as the basis.

Therefore, if a legitimate solution is found to prevent violations of the Rules of Procedure of the Verkhovna Rada (including by withdrawing both draft laws and registering a new one), then any of the draft laws (№ 1223 and № 6504) can be taken as the basis and adopted by the Verkhovna Rada.