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Weekly analytics for 13 – 20 July 2020

20.07.2020

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




Reorganization of Kyiv Administrative Court is a matter of national security of Ukraine


Event

On July 17, the National Anti-Corruption Bureau announced that the chairman and six judges of the Kyiv District Administrative Court (hereinafter – the KDAC) were served with charges. In addition, the Bureau jointly with the SSU released a video with some materials of the interrogation of judges and explanations of the recorded facts of illegal actions.

According to the investigation, a criminal organization operated under the leadership of the chairman of the KDAC and with the involvement of this court’s judges, which interfered in the activities of other public authorities to resolve personal or other issues, in particular to establish control over the High Qualification Commission of Judges (hereinafter – the HQCJ) and the High Council of Justice (hereinafter – the HCJ).

The published audio records contain conversations indicating:

  •  adoption by the court of “pre-programmed” decisions or initiation of politically motivated cases, in particular:

○ on the recognition of the absence of a coalition in the Parliament in June 2019, which gave grounds to terminate its powers ahead of schedule;

○ on the prohibition for some high-ranking officials to leave the territory of Ukraine after the 2019 presidential election. According to the investigation, this case was initiated by the chairman and judges of the KDAC through fictitious persons to demonstrate their strength and capabilities of the court, as well as revenge on former high-ranking officials. At the same time, the plaintiff in this case was the People’s Deputy D. Zhvania, who later denied the fact of addressing the court;

  •  efforts of the chairman of the KDAC to seize power in the HQJC and the HCJ by:

○ blocking the presidential competition in the HCJ in April 2019 through prohibiting the competition commission to submit the winners’ candidacies to the President for approval. The purpose of such actions, according to the investigation, was to try to prevent persons disloyal to the head of the KDAC from becoming members of the HCJ;

○ appointing persons under his control to the HQCJ. To this end, he intended to use the levers of influence he had on the Verkhovna Rada Commissioner for Human Rights and the head of the State Judicial Administration, who had appointed two members each to the HQCJ by November 2019;

  •  interference of the chairman of the KDAC in the activities of other authorities, in particular:

○ The Constitutional Court. According to the investigation, the chairman of the KDAC influenced the judges of the Constitutional Court to “ensure” adoption by them of the necessary decisions, both in his favor and in favor of other persons who addressed him. Disclosed facts may indicate the influence of the chairman of the KDAC in order to declare unconstitutional the articles of the Criminal Code of Ukraine on criminal liability for illicit enrichment (February 2019), the adoption of a knowingly unjust court decision (June 2020) and provisions of the Law “On Lustration”;

○ the Supreme Court – by creating obstacles in the appointment to court of persons disloyal to it in 2019 by ordering the conclusions of the NAPC on the existence of a conflict of interest in their actions and collecting votes “against” among the HCJ members;

○ other courts. The video also mentions the Sixth Administrative Court of Appeal and the Suvorov District Court of Odessa, which are also allegedly within the scope of influence of the KDAC chairman;

○ National Agency for the Prevention of Corruption regarding the non-prosecution of one of the people’s deputies;

○ non-declaration of expensive property and inconsistency of the lifestyle of the chairman and judges of the KDAC with the declared income.

Disclosed records may indicate that the criminal group had ties to law enforcement agencies. In particular, in connection with the release of the material of the TV show “Slidstvo Info” about the birthday of E. Ablov (deputy chairman of the KDAC), the audio records contain conversations, which show that the KDAC leadership is trying through their contacts to obtain information about the telephone traffic of a journalist, who was the author of the TV show piece.

It should be reminded that in July last year the NABU published materials that testified to the attempts of the KDAC chairman to establish control over the HQCJ by blocking the activities of individual members of the commission through the decisions made by his court in cases initiated by persons under his control. According to the investigation, P. Vovk also ensured the replacement of two members of the HQCJ with pre-determined “loyal” winners under the quota of the Verkhovna Rada Commissioner for Human Rights and the State Judicial Administration. According to the published materials, the necessary appointments were made in exchange for the adoption of court decisions, “necessary” for the subjects of the appointment (see paragraphs 15, 16 of the Alternative Report for 2019 “On the Independence of Judges in Ukraine”).

Criminal proceedings on these facts are ongoing, and its participants, the chairman and judges of the KDAC, continue to administer justice because the HCJ refused to remove them from office and bring them to disciplinary responsibility.

CPLR assessment

According to last year’s poll, conducted by the Razumkov Center in cooperation with the Ilko Kucheriv “Democratic Initiatives” Foundation at the request of the Centre of Policy and Legal Reform, the respondents believed that the biggest problems in the justice system were corruption, judges’ dependence on politicians and oligarchs, as well as the adoption of pre-programmed court decisions and the low level of morality of many judges.

Published records from the office of the KDAC chairman confirm the existence of all these problems in the judiciary, but their scale is probably much larger than can be imagined.

The authorities of judicial administration (primarily the HCJ) and self-government (Council of Judges) and judicial organizations did not react in any way to the revelations made last year, as well as to new facts, which were made public at the same time as the suspicion was handed over. The lack of a proper response to the revealed facts indicates the inability or unwillingness of the judiciary to overcome these phenomena, to effectively combat “trade in justice.”

Another criminal case against KDAC judges has put on the agenda the need for serious changes in the system and jurisdiction of courts of this level. In particular, the exclusive jurisdiction of the KDAC includes disputes involving the Government, ministries, other central executive bodies, the National Agency for the Prevention of Corruption, and others. Such a jurisdiction leads to the fact that the local court has serious leverages over the entire state apparatus.

According to published materials, these levers of influence are used by a group of KDAC judges to illegally lobby their own interests or interests of other people, including legislative changes, and politicians are forced to negotiate with the court’s leadership. This poses a threat not only to the interests of justice, but also to the national security of Ukraine.

In view of the above, the CPLR experts consider it necessary that the KDAC and the District Administrative Court in Kyiv be reorganized into one district court with a competitive procedure for its formation. Current “exclusive” jurisdiction of this court was transferred to the new High Administrative Court, formed using the model of the High Anti-Corruption Court, with an appeal against its decisions to the Supreme Court.



Parliamentary committee recommended that the presidential version of judicial reform be adopted in the first reading


Event

On July 15, the Verkhovna Rada Committee on Legal Policy considered a number of draft laws related to judicial reform, namely No. 3711 by President Volodymyr Zelensky, No. 3711-1 by a People’s Deputy Yaroslav Yurchyshyn (faction of “Holos” party) and No. 3711-2 by people’s deputies from the faction of the party “Servant of the People” (detailed analysis via this link). Following the consideration, the Committee recommended that the Parliament adopt the Presidential draft law as a basis in the first reading.

On July 16 and 17, at the last plenary meeting before the parliamentary holidays, the Verkhovna Rada was supposed to consider all three draft laws, but did not have time to do so, having closed the meeting and the regular session of the Parliament. This issue is likely to be raised at the next session.

CPLR assessment

An extraordinary session of the Verkhovna Rada is scheduled to begin on July 21, but the above draft laws are not in the agenda. The next regular session of the Verkhovna Rada will begin in September.

Given that draft law No. 3711 was introduced by the President as urgent, the fact that it is not considered by Parliament at either a regular or an extraordinary meeting may indicate that the draft law currently lacks sufficient support among people’s deputies.

One of the reasons for this may be, first of all, that as the CPLR experts have already noted, the presidential draft law does not solve the main problems of the judiciary and does not meet Ukraine’s commitments to the International Monetary Fund, which G7 ambassadors diplomatically drew attention to before its consideration. Alternative draft law No. 3711-1 is more in line with these goals.



Verkhovna Rada adopted a draft law on mediation as a basis


Event

On July 15, the Verkhovna Rada adopted in the first reading the government’s draft Law No. 3504 “On Mediation”. It is planned to establish a mediation procedure at the legislative level, which will consist of voluntary out-of-court settlement of a conflict (dispute) through negotiations between its parties with the help of a mediator.

Mediation procedure will be applied in any disputes arising, in particular, from civil, family, labor, economic, administrative legal relations, as well as in criminal proceedings when concluding conciliation agreements between the victim and the suspect, the accused.

Possibility to apply to a mediator will exist both before applying to the court formally and during court proceedings (consideration) and even during the execution of a court decision. Such an application is dispositive and not mandatory.

Anyone with higher education and basic training in mediation obtained in Ukraine or abroad will have the opportunity to become a mediator. After training, this person will be included in the database of mediators.

The draft law proposes to define the rights and obligations of the mediator and the parties to mediation, the procedure for mediation, as well as the requirements for the mediation agreement and the agreement on settlement of the conflict (dispute) based on the results of mediation. In addition, it determines the procedure for suspension of consideration in case of reaching a decision on the results of mediation (amendments to the procedural codes).

2. CPLR assessment

On August 7, 2019, the Minister of Justice signed the UN Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation). In order to ratify and implement this Convention, Ukraine needs to adopt a special law that will define the main provisions, in particular, on the scope of mediation, the procedure for its conduct and the status of mediators.

Although in fact mediation as a phenomenon exists in society, its effectiveness remains low due to the lack of qualified mediators, the inability to stop court proceedings, the need to pay a full court fee even if consensus is reached during the process, and so on. At the legislative level, only the CPC of Ukraine in 2012 established a special procedure for criminal proceedings on the basis of a conciliation agreement between the victim and the suspect, accused of certain categories of criminal offenses.

The institute of mediation can simplify the procedure for settling disputes not only between individuals, but also between commercial organizations (businesses), which will have a positive effect on the economic well-being of Ukraine.

Mediation procedure will allow decreasing the burden on the judicial system and resolving disputes in a simpler way than in court. In view of this, experts of the Centre of Policy and Legal Reform support the introduction of the mediation institution in Ukraine.

 



Government proposed the establishment of a Fund for Compensation to Victims of Violent Crimes


Event

On July 15, the Cabinet of Ministers supported legislative initiatives on a mechanism for compensation to victims of violent crimes developed by the Ministry of Justice of Ukraine.

According to Justice Minister Denys Maluska, everyone who has suffered as a result of a violent crime will receive compensation from the state.

Payments will be made to those who have suffered serious bodily harm, close relatives of the deceased victims of the crime, victims of sexual crimes and child victims who have been subjected to physical or psychological violence.

The law will establish the amount of the minimum possible payment – 40 % of the subsistence minimum. Specific amounts of compensation payments will be determined by the Cabinet of Ministers. Compensation will be paid by regional centers for free secondary legal aid. After the payments are made, the state will recover compensation from the offender.

In addition, everyone who has committed a crime or misdemeanor will pay a special fee to compensate for the damage caused by violent criminal offenses.

Relevant proposals are contained in the draft laws No. 3892 and No. 3893 of 17.07.2020.

2. CPLR Assessment

In 2005, Ukraine signed the European Convention on the Compensation of Victims of Violent Crimes (1983), according to which it undertook to establish a mechanism for compensating victims of violent crimes, in connection with enhanced constitutional guarantees for the protection of human life and health.

Convention is based on the idea of social solidarity and justice, which provides for the possibility before convicting the perpetrator to reimburse the victim part of the funds from the special Fund, usually in order for the victim to have the right to appropriate treatment. Given the length of the pre-trial investigation and trial, as well as the significant chance that the perpetrator will not be found, such a mechanism is often the only possible way for a victim to obtain material compensation.

Several years ago, experts of the Centre of Policy and Legal Reform studied the way this mechanism works and legal norms it is based on in 10 EU member states. The results of the study formed the basis of the collected publication “Compensation to victims of violent crimes: European standards and foreign legislation”.

This publication describes the European experience of the operation of such a mechanism, because the most pressing issues are the sources of its funding and the mechanism of compensation for damage. In the current concept, the Ministry of Justice emphasized that the main source of income to the Fund is a special fee levied on convicts for crimes or criminal offenses, and the compensation will be paid by regional units for free secondary legal aid.

After the payments, the state will collect compensation from the offender under the recourse procedure.

CPLR experts have a positive opinion on the Government’s legislative initiative, welcome the real steps taken to establish a system of compensation for victims of violent crimes, and hope for the adoption of draft laws that should address an important social problem.



Next package of draft laws on the introduction of a classic jury trial have been submitted to the Parliament


Event

On July 14, deputies from “Servant of the People” faction submitted to the Verkhovna Rada a package of three draft laws on the introduction of a classic jury trial in Ukraine.

Draft law No. 3843 (“On the Jury Trial”) regulates the status of jurors, their guarantees of inviolability similar to those enjoyed by judges, and establishes a mechanism for their involvement in cases. It is envisaged that the jury will consider only criminal proceedings.

The draft law states that the jury consists of one professional judge and a jury (8 people). A professional judge is only the procedural presiding judge in a court hearing and does not take part in the decision-making on the merits of the accusation by a jury (the so-called “verdict”).

A juror may be a citizen of Ukraine who has reached the age of 21 and permanently resides in the territory to which the jurisdiction of the relevant court extends. The register of jurors is formed and maintained by the State Judicial Administration.

Transitional provisions of the draft law stipulate that within two years from the date of its entry into force, the jury shall consider only cases on particularly serious crimes punishable by life imprisonment.

Draft laws No. 3844 (“On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” in connection with the adoption of the Law of Ukraine “On the Jury Trial”) and No. 3845 (“On Amendments to Certain Legislative Acts in Connection with the Adoption of the Law of Ukraine “On the Jury Trial”) are aimed at bringing the legislation in line in case of adoption of the Law “On the Jury Trial”. In this case, the draft law No. 3845 provides for amending:

  •  Criminal Procedure Code of Ukraine – in particular, in terms of expanding the scope of the jury trial (not only when considering cases on crimes punishable by life imprisonment, but also on crimes punishable by imprisonment for a term of ten years or more), except for certain categories of crimes (against the foundations of national security, corruption and war crimes, crimes against peace, security of mankind and international law and order);
  •  Criminal Code – in terms of introducing liability for disclosure of information from the deliberation room or violation of the oath by a juror
  •  Code of Administrative Offenses – in terms of improving administrative liability in connection with the introduction of a full-fledged jury trial.

CPLR assessment

In January this year, the Government submitted to Parliament two draft laws No. 2709 and No. 2710 on the introduction of a classic jury trial. In relation to these draft laws, a people’s deputy Serhii Vlasenko (“Batkivshchyna” party faction) introduced two alternative draft laws: No. 2709-1 “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” to Improve the Procedure for Forming a Jury List” and No. 2710-1 “On Amendments to Certain Legislative Acts to Ensure the Participation of Jurors in the Administration of Justice”. Government’s draft laws were withdrawn due to a change of government. Instead, Vlasenko’s alternative draft laws remain relevant.

However, a package of draft laws on the jury trial from representatives of the “Servant of the People” faction has been registered as a completely new package without being linked to Vlasenko’s drafts. CPLR experts, who have consistently supported the idea of ​​introducing a full-fledged jury trial, are preparing a detailed analysis of the new package of draft laws.