What are you interested in?

Weekly analytics for 15 – 21 February 2022

22.02.2022

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.



Law of Ukraine “On Administrative Procedure” Is Adopted in Full


Event

On February 17, the Law of Ukraine “On Administrative Procedure” (LAP) was adopted in full, taking into account the President’s recommendation following his veto. Based on the President’s recommendations, a number of legal relationships were excluded from the Law’s coverage, including security and defense, citizenship, asylum, state awards, and pardons; while the effective date of the Law was pushed back from 12 to 18 months from adoption.

As a reminder, the LAP provides for unified rules in relationships between state executive authorities and local self-governance bodies on one hand, and individuals and legal entities on the other. In place of dozens disparate and conflicting laws in the areas of provision of administrative services and inspections, Ukraine will come to a single system: a single law with a general procedure and a minimal number of well-grounded exceptions set forth in other, specialized laws.

CPLR`s Assessment

Until now, Ukraine remained the only country in Europe (excluding Russia) that did not have a LAP. The lack of a general procedure defined by law, which would guarantee the respect for the rights of individuals, has contributed to numerous abuses and neglect of the interests of interested parties. The absence of a LAP also harmed the investment climate in Ukraine, as investors would like to work according to uniform, clear, and understandable rules. Therefore, with the entry into force of the Law (one and a half year following its publication), all of this should change for the better.

Regarding the President’s recommendations that were taken into account, the following can be observed. Additional exceptions from the LAP coverage relating to national security and defense can be understandable from the political viewpoint, including in light of Ukraine’s current security situation. Other exceptions, however, are less grounded, particularly those relating to citizenship and asylum, which represent “classic” cases of applying the administrative procedure legislation. Further, the LAP was never even intended to apply to other relationships, such as state awards and pardons.

Concerning the delayed entry into force by the LAP, this was intended to give the Government and ministries more time to prepare draft laws to bring other laws into compliance with the LAP. That being said, it should be noted that such tasks in Ukrainian realities are usually postponed to the very final months prior to established deadlines. Thus, the feasibility of this recommendation is not clear-cut.

Yet, even when taking into account the President’s recommendations, it should be recalled that the Law’s most important novelties are as follows:

    • establishing the right of a person to be heard before a decision is made not in one’s favor (this may allow to change the authority’s position and move toward a favorable decision);
    • introducing the concept of «interested parties» (this should prevent conflicts and promote the issuance of balanced decisions);
    • establishing the obligation of administrative authorities to provide reasoning for adverse decisions and indicate the procedure for their appeal;
    • the principle of formality, according to which authorities should collect information and documents rather than transfer these duties to citizens;
    • the rule of silent consent with regards to receipt of consents from other authorities (if an authority has not expressed consent within a certain period, it is deemed to have no objections);
    • establishing a rule on the entry into force of an administrative act from the moment it a person is notified (and not merely from adoption) and setting forth the procedure for showing proof of notification;
    • creating effective conditions for appealing the administrative acts;
    • addressing the issue of revocation or withdrawal of administrative acts.

The Law «On Administrative Procedure» also creates advantages for the government itself and for honest civil servants. After all, a civil servant cannot be forced to issue a secret and illegal decision if it is necessary to go through an inclusive procedure.

Overall, we congratulate Ukraine on the adoption of the LAP, which is an important step putting our country closer to the EU and NATO standards.


HCJ Members Lobby for Delaying the Vetting of their Integrity


Event

According to the Office of the President, on February 18, a meeting of the Commission for Legal Reform took place to discuss the course of the High Council of Justice (HCJ) reform. Members present at the meeting stated there is risk to institutional continuity of the HCJ’s work due to simultaneous vetting of integrity of all HCJ members by the Ethics Council, and this may result in making the HCJ lack authority.

Head of the Commission for Legal Reform Serhiy Ionushas and Head of the Parliamentary Committee on Legal Policy Andriy Kostin proposed to all interested parties to discuss the recommendation to amend the law in order to extend the term of vetting for current HCJ members.

As a reminder, on February 9, the Ethics Council announced the launch of integrity vetting for all current HCJ members. In response, the HCJ accused the Ethics Council of violating the law’s requirements concerning order and sequence of vetting and stated this will encourage the majority of the HCJ members to resign early. Yet, following this statement, none of the HCJ members announced their resignation; moreover, issues of this kind were not even included on the Council’s agenda.

CPLRs assessment

By law, the Ethics Council has only six months to review the integrity of the current HCJ members. At present, half of this term has elapsed, and therefore the Ethics Council launched the vetting of integrity for all HCJ members. The legality of such Ethics Council actions was justified in detail in the weekly analysis for February 8-14, 2022.

The HCJ’s arguments that the Ethics Council’s actions threaten the HCJ’s competency are, in essence, grounded in the certainty that some of the HCJ members do not meet the integrity and professional ethics criteria, as this is the only situation when the Ethics Council could make a recommendation on removal, which would then give basis for an HCJ member’s suspension from carrying out his or her duties. Given the HCJ’s determining role in establishing an honest and independent judicial corps, continuing membership on the HCJ by such individuals can only harm the judiciary’s authoritativeness.

Moreover, at present the Ethics Council is nearing completion in its vetting of candidates who applied for announced competitions for HCJ membership. Provided there are good-faith and efficient actions by the appointing entities, this will enable filling nearly all vacancies on the HCJ in the nearest future.

“Self-dissolution” by the HCJ and temporary absence of authorized membership will have no visible negative consequences, as the HCJ currently does not hear disciplinary cases against judges, while selection of new judges is not happening due to the absence of the High Qualification Commission of Judges.

At the same time, introducing any legislative changes, in practice, could be used not so much to delay integrity vetting of the HCJ members but rather to modify key provisions of the law that create an opportunity for genuine cleansing of the HCJ (such as decisive role of international experts in the Ethics Council’s work or a legally specified time limit for the appointing entity to reject the Ethics Council’s recommendation on removal of an HCJ member). At present, constitutionality of these very provisions is being disputed before the Constitutional Court, in response to a petition by the Supreme Court that was filed upon request by the HCJ itself (additional details are covered in the weekly analysis for October 5-11, 2021).

Furthermore, the fact that the Commission for Legal Reform meeting indeed took place is in doubt, as the meeting was not announced to its members. According to regulations on the Commission, its meetings are competent if at least half of the Commission members are present. Currently, there are approximately 90 members on the Commission, and photographic materials included with the news announcement suggest that far fewer people were in attendance at the event. Most likely, this was simply a meeting between HCJ members and the Commission’s Head, as well as the Head of specialized Parliamentary Committee and international partners.