Weekly analytics for 15 — 21 November

Parliament’s Committee on Law Enforcement Activities recommends adopting the government draft law № 10060 on the reform of the SAP

Event

On November 20, the Committee on Law Enforcement Activities recommended the Verkhovna Rada of Ukraine to include the draft Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine on strengthening the independence of the Specialized Anti-Corruption Prosecutor’s Office” (Reg. № 10060) in the agenda and adopt it as a basis. Such a decision was based on the results of the Committee’s meetings held on November 16-17 and was set out in the Committee’s Opinion attached to the reference card of the draft law.

CPLR’s expert assessment

The adoption of this decision was preceded by the Committee’s re-voting on the decision due to its critical perception by individual MPs, representatives of civil society, and other individuals who monitor the reform of the Specialized Anti-Corruption Prosecutor’s Office (for example: 1, 2, 3).

Currently, there are three draft laws under the Parliament’s consideration:

1) №10060 (primary draft, initiated by the Cabinet of Ministers of Ukraine (aka the Government’s draft law)): the CPLR’s experts have previously provided analysis of this draft law, see opinion here; 

2) №10060-1 (alternative draft, initiated by V. Neklyudov and other MPs);

3) №10060-2 (alternative draft, initiated by Radina A. and other MPs): the CPLR’s experts have previously provided analysis of this draft law, see opinion here).

All of these drafts envision four key components of the reform of the SAP:

1) improving the procedure for appointing the head of the SAP;

2) providing the SAP with the status of an independent legal entity, with corresponding legal implications;

3) implementing the procedure of independent periodic assessment (audit) of the SAP;

4) creating the SAP’s own disciplinary commission, alongside the existing, permanently functioning Qualification and Disciplinary Commission of Prosecutors.

Special attention to the reform of the SAP (strengthening its autonomy and independence) is caused by the fact that it is part of Ukraine’s European integration obligations. In light of this fact, the Government of Ukraine has developed draft law №10060 in order to fulfill Ukraine’s commitments, made in accordance with the Letter of Intent of the Government of Ukraine to the International Monetary Fund and to implement paragraph 61 of the Memorandum on Economic and Financial Policy of June 19, 2023 and paragraph 56 of the updated Memorandum on Economic and Financial Policy of March 24, 2023.

Following the submission of the alternative drafts and a number of critical evaluation opinions regarding certain provisions of the government’s draft law, a working group was created on October 10 within the Parliament’s Committee on Law Enforcement Activities. The group’s objective was to bring the principal and the alternative drafts into alignment taking into account proposals, critical remarks, and Ukraine’s international partners’ assessments, as well as to present the revised version of the legislative initiative.

Ultimately, on November 16, the Parliament’s Committee on Law Enforcement Activities recommended at its meeting that the Parliament to adopt a revised version of the draft law, which was not agreed upon among members of the working group. According to the working group members, the revised version contained provisions that would strengthen the political influence on the SAP through excessive interference in the selection process of the head of the SAP. It also did not take into account the proposals to increase the efficiency of the SAP envisioned in alternative draft laws, primarily the provisions regarding the final repeal of the so-called “Lozovyi amendments”. 

On the same day, following the above-mentioned public criticism, a meeting was held with the President, which impacted the subsequent change in the Committee’s position and was most likely motivated by the need to comply with the European integration obligations. According to the Head of the Committee on Anti-corruption Policy, MP Anastasia Radina, “we should thank the President for his principled position regarding the fulfillment of our obligations to international partners”. 

Such motives can be confirmed by a letter of G7 ambassadors who, according to Evropeiska Pravda, addressed the head of the Verkhovna Rada, Ruslan Stefanchuk, with a letter explaining that only one of the proposed draft laws on strengthening the SAP’s independence meets international requirements, namely the Government’s draft law №10060.

On November 17, the Committee, guided by Part 5 of Art. 44 of the Law of Ukraine “On Committees of the Verkhovna Rada of Ukraine”, re-voted its original decision (meeting minutes № 167), as indicated in the most recent version of its Opinion. There is no information regarding the reasons that caused the change in the Committee’s position, and the Committee members did not provide comments on this matter.

As a result, further finalization of the provisions on strengthening the autonomy and independence of the SAP will take place after the adoption of the Government’s draft law №10060 as a basis.