Weekly analytics for 12 – 18 May 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.
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Verkhovna Rada adopted in the first reading the draft law No. 2679 in the area of administrative services, but it needs revision
Event
On May 13, the Verkhovna Rada of Ukraine adopted in the first reading the draft law No. 2679 submitted by the people’s deputies, which proposes a number of novelties in the area of administrative services in general, and specifically on the organization of the Centers for the Provision of Administrative Services (CPAS).
In particular, the draft law envisages the following: greater flexibility of local self-government bodies (LSGs) in the mechanisms of integration and provision of administrative services through the CPASs; liquidation of CPASs formed at district state administrations (or more precisely, their transformation into the CPASs of the LSGs); rationalization of requirements for local self-government officials to work with information from the State Land Cadastre; focus on the maximum integration of administrative services into the CPASs, etc.
CPLR Assessment
Draft law contains many positive novelties, in particular those mentioned above, and therefore the CPLR supports the adoption of the draft law as a basis. At the same time, in our opinion, the draft law contains significant shortcomings that do not allow its adoption in the second reading and in general without significant revision. In particular:
1. The draft law imposes an obligation to establish CPASs for each territorial community, where the number of population exceeds three thousand inhabitants. In our opinion, the expediency of the mandatory establishment of CPASs in small communities is questionable. First, the creation of a proper CPAS requires infrastructure expenditures (barrier-free open space, furniture, equipment, software, etc.). Therefore, without the financial support of such an obligation of the local self-government, the implementation of the Law will be endangered. Second, if such an obligation is introduced, it should be extended to larger territorial communities (for example, to those having over 20 thousand inhabitants). Third, this obligation must be aligned in time with budget planning, or at least with the completion of the formation process of the unified territorial communities.
2. Imposing an obligation on local self-governments to establish CPASs within three months from the date of entry into force of the Law. This requirement does not take into account the financial and institutional capacity of local communities, as well as the time required to establish a proper CPAS. According to expert experience, this period is up to 12 months. Consequently, there are risks of ignoring or purely formal compliance with the law. Therefore, it is proposed to set a much longer period for the formation of the CPASs, for example, until the previously declared time of liquidation of district state administrations – March 1, 2021.
3. The list of administrative services for each CPAS is made dependent on the territory it serves. In particular, it is proposed that the CPASs will provide the services of the local self-government body that established it, as well as the services provided by the territorial bodies of the CEB, other authorities in the territory of the CPAS. On the one hand, this norm can be positive for cities of regional significance and district centers. On the other hand, there are risks that there will be significant disproportions in the formation of the list of services in different CPASs. After all, the network of territorial bodies of CEBs is rather limited and they are located, as a rule, only in larger settlements (mainly up to the level of the district center). A focus should be made on the mandatory availability of the most popular (basic) administrative services in each CPAS.
In addition, when finalizing the draft law before the second reading, it is worth paying attention to the obligation of local self-government bodies to create a network of territorial subdivisions of the CPASs and/or remote workplaces in accordance with the criteria established by the Government.
Parliament passed draft laws on certain matters of the judiciary in the first reading
Event
On May 13, the parliament at an extraordinary meeting passed in the first reading the draft laws No. 2823 (“On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” concerning the Secondment of Judges by Temporary Transfer of a Judge to Another Court”) and No. 3383 (“On Amendments to Commercial Procedure Code of Ukraine, Civil Procedure Code of Ukraine, Code of Ukraine on Administrative Procedure on the Duration of Procedural Terms during the Quarantine established by the Cabinet of Ministers of Ukraine to Prevent the Spread of Coranavirus Disease (COVID-19)”, which have already been analyzed by the CPLR experts and presented in weekly political points of 21-27 April 2020.
Draft law No. 2823 provides for granting the High Council of Justice (HCJ) the right to extend the term of a judge’s secondment (for not more than one year) at the request of the court chairman and a judge’s application without submission of the High Qualifications Commission of Judges of Ukraine (HQCJ).
CPLR assessment
Secondment is a method of temporarily transferring a judge to administer justice to another court of the same level and specialization, which is used in exceptional cases (impossibility of administering justice in the relevant court, detection of excessive workload, termination of the court’s operation due to extraordinary circumstances). Transfer is carried out upon the decision of the HCJ, adopted on the basis of the submission of the HQCJ with the consent of the judge. Due to the dissolution of the HQCJ in November 2019 and the impossibility to establish a new composition, currently the secondment of judges is impossible, and the terms of secondment of previously transferred judges are already expring.
Draft law No. 2823 addresses only the problem of previously seconded judges whose term of transfer expires, but the problem of the overall impossibility of the secondment of judges remains unsolved. According to the CPLR experts, an alternative mechanism should be provided for a judge’s secondment if the authorized HQCJ is not formed. In this case, the HCJ should also be empowered to make decisions on the secondment of a judge at the request of the judge and address of the chairman of the court, and in the absence of judges in court – the Chairman of the State Judicial Administration of Ukraine.
In addition, the draft law provides for the right of the HCJ to terminate the secondment early. Currently, such powers are not explicitly provided for in the laws “On the Judiciary and the Status of Judges” and “On the High Council of Justice” (although it is mentioned in the HCJ decision on the secondment procedure). Due to the fact that the law does not clearly define the grounds based on which the HCJ may terminate a judge’s secondment (and, consequently, guarantees of the protection of judges from abuse of this power), this may lead to a violation of guarantees of judges’ independence. Therefore, it is advisable to provide that termination of a secondment can take place only at the request of the judge.
In view of the above, we believe that the draft law No. 2823 needs to be revised before the second reading.