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Weekly analytics for 15 – 21 September 2020

21.09.2020

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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Government approved a draft Anti-Corruption Strategy for 2020-2024


Event

On September 16, the Cabinet of Ministers approved the draft Anti-Corruption Strategy for 2020-2024, developed by the National Agency for the Prevention of Corruption (hereinafter – NAPC), subject to its further finalization. During the discussion, changes were made to the section on anti-corruption measures in the field of justice as regards the independent commission, which was initially proposed to be empowered to pre-select new members of the High Council of Justice (hereinafter – HCJ) and the High Qualifications Commission of Judges (hereinafter – HQCJ), and  after the respective amendments – only to assess their integrity. Additionally, the loss of office by current members of the HCJ who do not meet the requirements of integrity, as an expected result, was replaced by the consideration of the issue on the dismissal of such members.

On September 17, the HCJ approved its position on the draft Anti-Corruption Strategy (largely in relation to the judiciary section), calling it “contrary to the current constitutional regulation of public relations.” According to the HCJ, by proposing judicial changes, the NAPC goes beyond its competence.

CPLR assessment

At the end of June 2020, the NAPC submitted a draft Anti-Corruption Strategy for 2020-2024 for public discussion. CPLR experts supported the proposed measures in the field of judiciary, given their relevance, high anti-corruption potential, as well as taking into account their experience in implementing similar institutions in the past.

Following a public discussion, a number of important anti-corruption measures were excluded from the draft, which reduced the potential of the anti-corruption strategy in the field of justice (for more details, please refer to the weekly analysis of September 8 – 14, 2020). The amendments introduced during the government meeting are obviously also the result of political compromises. However, the CPLR experts believe that even after these amendments, the provisions of the draft Anti-Corruption Strategy remain relevant and need support. One way or another, the provisions of future laws on the mandate of an independent commission for the verification of current and future HCJ members must comply with Ukraine’s international obligations.

Once approved by the Cabinet of Ministers, the draft Anti-Corruption Strategy will be submitted to the Parliament for final approval as a government initiative.

CPLR experts are of the opinion that the HCJ’s position on the draft Anti-Corruption Strategy is based on a misunderstanding of the legal significance of this document. The Anti-Corruption strategy is a comprehensive, program document (policy document), which identifies areas for combating corruption for several years with the expected results in various areas. Therefore, it is obvious that the strategy contains provisions, some of which can be implemented only by changing the current regulations. In addition, the content of the HCJ’s position shows that it evaluates the initial text of the draft, which was published, but after various rounds of discussions, it has undergone some changes.



Ukraine's international obligations to the EU have been ratified, in particular on the reform of the judiciary


Event

On September 16, the Law “On Ratification of the Memorandum of Understanding between Ukraine as a Borrower and the European Union as a Lender and the Loan Agreement between Ukraine as a Borrower and the National Bank of Ukraine as an Agent of the Borrower and the European Union as a Lender (on the receipt by Ukraine of macro-financial assistance in the amount of up to 1 billion 200 million euros). Among other things, the ratified Memorandum provides for legislative changes in the field of justice, in particular:

● formation of a new HQCJ through a transparent selection procedure by an independent commission with the participation of international experts;

● creation of an ethics commission with the participation of international experts, which will conduct a one-time assessment of the integrity of the current members of the HCJ with the possibility of recommending their dismissal to the bodies of election (appointment). In the future, the commission will conduct a preliminary selection of candidates to the HCJ, from which the relevant bodies will determine the members of the Council.

CPLR assessment

CPLR experts have previously analyzed the provisions of the Memorandum in terms of commitments to reform the judiciary (see weekly analysis of 20 – 27 July25 August – 1 September 2020). The entry into force of the law ratifying this Memorandum indicates that it has become part of national legislation, and therefore, further legislative work in the area of HCJ and HQCJ reform should be carried out on the basis and in the direction set forth in this normative act. It should also be noted that the Anti-Corruption Strategy for 2020-2024 approved by the Government provides for similar mechanisms to ensure the integrity of members of the HQCJ and the HCJ, as one of the ways to combat corruption in the field of justice.

That is, both international institutions (European Union, International Monetary Fund) and national authorities recognize the importance of introducing effective mechanisms for monitoring the integrity of the judiciary. This testifies to the existence of the relevant problem and the need to solve it, both to overcome corruption in the country and to continue the Euro-Atlantic course of Ukraine, defined in the Constitution.

As CPLR experts have already reported, the Verkhovna Rada is considering three alternative draft laws on the reform of the HQCJ and the HCJ (by the President Volodymyr Zelensky, a people’s deputy from the “Holos” faction and people’s deputies from the “Servant of the People” faction). Before the parliamentary holidays, the relevant parliamentary committee recommended the adoption in the first reading of the presidential draft law, which does not comply with international obligations, as it does not provide for any mechanisms to verify the integrity of current and future members of the HCJ (for more details, please refer to weekly analyzes of 15 – 22 June, 6 – 13 July,  13 – 20 July 2020). In view of the commitments made, one of the priorities of the parliament’s work at the forthcoming meetings should be the adoption of the necessary legislative regulation to start the HCJ reform and the creation of a new HQCJ.



"Judiciary has suffered significant damage from the content of these records," – the Supreme Court expressed its position on the "Vovk’s records"


Event

On September 18, the Plenum of the Supreme Court approved a statement on the materials of covert investigative actions published by the National Anti-Corruption Bureau (NABU) in the case on suspicion against the Chairman and judges of the Kyiv District Administrative Court and the Chairman of the State Judicial Administration on the establishment of criminal organization, which interfered in the activities of other authorities  to address personal issues or other persons’ interests, in particular, aimed to establish control over the HQCJ and the HCJ (so-called “Vovk’s records”), for more details, see the weekly analysis of 13 – 20 July).

Emphasizing that the legal assessment of these records will be provided in a legal way during the criminal proceedings, the Supreme Court stated that “the judiciary has suffered significant damage from the content of these records. This carries the risk of seriously violating the values ​​on which an independent and fair court is built, and nullifies the daily efforts of thousands of judges to increase public confidence in the judiciary.” The Plenum of the Supreme Court also called on all judges to “demonstrate by all actions within and beyond the litigation process the high standards of justice and ethical conduct, independence and impartiality in decision-making, thus confirming their fidelity to the oath of a judge.”

A few hours later, the HCJ’s press office responded to the Supreme Court’s statement, calling it the statement provided in a way not envisaged by law and introducing “inappropriate politicization of the processes in the judiciary.

CPLR assessment

According to Roman Kuybida, Deputy Head of the Board of the CPLR, the statement of the judges of the Supreme Court is the first adequate reaction of the representatives of the judiciary to the information published by NABU on high-level corruption in the judiciary.

The so-called “Vovk’s records” are one of the biggest corruption scandals in the judiciary since independence. According to the investigation, the audio recordings contain not only the facts of the adoption of “pre-ordered” decisions by judges of the Kyiv District Administrative Court, but also indicate the influence of the chairman of this court on the activities of other subjects in the field of justice, including members of HCJ, HQCJ, Head of the State Judicial Administration, the Commissioner of the Verkhovna Rada for Human Rights, judges of the Constitutional Court.

Despite the fact that the information published by NABU is of public importance, on July 23, the HCJ condemned its dissemination, noting that such actions of the Bureau undermine the authority of justice. Subsequent decisions and public communication of the HCJ gave the impression that in this case the members of the Council supported the suspected judges of the capital’s courts (for more details, please refer to the weekly analyzes of 20 – 27 July1 – 7 September).

Doubts about the objectivity and independence of the HCJ in this situation are caused by the fact that its members themselves appear on the records as susceptible to illegal influence. In addition, the response to the Supreme Court’s statement with the assessment of its content on the official website was given by the HCJ’s press office, a structural unit responsible for public communication of the council’s activities, but not authorized to provide its own assessment of any processes on behalf of the HCJ, which did not hold its meetings after the adoption of the relevant decision by the Plenum of the Supreme Court.



Constitutional Court declared the President's powers over the National Anti-Corruption Bureau unconstitutional


Event

On September 16, the Constitutional Court of Ukraine (hereinafter – CCU) adopted a decision (No. 11-р/2020) in the case on the constitutionality of certain provisions of the Law “On the National Anti-Corruption Bureau of Ukraine” (hereinafter – the Law) declaring that the following powers of the President of Ukraine are unconstitutional:

– to establish the National Anti-Corruption Bureau of Ukraine (hereinafter– NABU) (Part 2 of Article 1);

– to appoint and dismiss the Director of NABU (paragraph 1, part 1 of Article 6, paragraph 2, part 9 of Article 7);

– to appoint three persons to the Competition Commission (paragraph 1, part 3 of Article 7);

– annually appoint one of the three members to the external control commission (the second sentence of paragraph 2, part 6 of Article 26);

– to approve the regulations on the Public Control Council and on the procedure for its formation (Part 2 of Article 31).

As the CCU ruled that the unconstitutional provisions of this Law expire three months after the adoption of the decision, the Verkhovna Rada should immediately (by December 16, 2020) bring the mentioned provisions of this Law into line with the Constitution. The postponement of the repeal of unconstitutional provisions is due to the need to give Parliament time to correct previous legislative mistakes in the formation of NABU.

In addition, the CCU closed the constitutional proceedings in the case of verification of the constitutionality of paragraph 1 part 1 of Article 1 of this Law on the definition of NABU as a “state law enforcement body”. The court clarified that the people’s deputies did not substantiate the unconstitutionality of this provision.

CPLR assessment

This decision of the CCU was predictable, in particular, given the legal position expressed in the Decision of the CCU No. 9-r/2020 on the unconstitutionality of the Decree of the President of Ukraine on the appointment of Artem Sytnyk Director of NABU (see the legal opinion of the CPLR of September 4, 2020),

CPPR experts point out that the subject of the constitutional petition, claiming that the powers of the President were unconstitutional, did not declare the similar powers of the Verkhovna Rada unconstitutional, which is why they could not be assessed by the CCU in these proceedings. In our opinion, the following powers of the Verkhovna Rada defined by this Law are also inconsistent with the Constitution:

– to dismiss the NABU Director if there are grounds specified in this law (paragraph 2, part 1 of Article 6);

– to appoint three persons to the Competition Commission (paragraph 3, part 3 of Article 7);

– annually appoint one of the three members to the external control commission (the second sentence of paragraph 2, part 6 of Article 26).

In addition, the provisions of paragraph 11 of Part 1 of Article 8 of the Law on submission by the NABU Director of a petition to the President of Ukraine on conferment of ranks to senior civil servants of NABU also contains signs of unconstitutionality, as the President of Ukraine confers higher military ranks, higher diplomatic ranks and other higher special ranks and class ranks (paragraph 24, part 1 of Article 106 of the Constitution of Ukraine), but not the ranks of civil servants.

Therefore, in pursuance of the CCU Decision in order to bring the provisions of the Law “On the National Anti-Corruption Bureau of Ukraine” in full compliance with the Constitution of Ukraine and to preserve internal logical connections in the text of this Law, the Verkhovna Rada should remove or restate the following provisions of this Law: par. 1 of part 1 and part 2 of Article 1; part 1 and par. 3 part 4 of Article 6, Article 7 (full text); par. 11 part 1 of Article 8; the first and second sentences of par. 2 part 6 of Article 26; part 2 of Article 31; part 3 of Section II “Final Provisions”. At the same time, it is important to preserve and strengthen guarantees of the independence of this body, in particular from political and other interference in its activities.

Postponement of the expiry of unconstitutional provisions of the Law for three months may make sense not only to bring the relevant provisions of the law into line with the Constitution, but also to regulate by the legislator of the procedure for terminating the powers of the NABU Director and members of the NABU Public Control Council, who were appointed (elected) on the basis of acts that had no constitutional grounds. In particular, the decree appointing Artem Sytnyk to the position of NABU Director was declared unconstitutional on August 28 this year, but for unknown reasons no postponement was envisaged as regards its entering into force, which caused uncertainty about the legal status of this person after that date (see the legal opinion of the CPLR).

To date, three draft laws on amendments to the Law “On the National Anti-Corruption Bureau of Ukraine” have been registered in the Parliament: on September 2 (the main draft law, registration No. 4025) and on September 16 this year – two alternative ones (registration No. 4025-1 and No. 4025-2).

The provisions of these draft laws are mostly identical: they offer similar ways to resolve the issue of appointing the Director of NABU. In particular, NABU is defined as a central executive body with a special status, the Director of NABU will be appointed by the Cabinet of Ministers in accordance with the results of open competitive selection. However, in the draft law No. 4025-2, the second sentence of par. 2 part 6 of Article 26 of the Law “On the National Anti-Corruption Bureau of Ukraine”, the provisions of which were declared unconstitutional, remain unchanged.

In addition, we would like to note that the CCU is currently considering two cases on the constitutionality of certain provisions of the Law “On the State Bureau of Investigation” (submission of 45 people’s deputies of Ukraine dated August 29, 2019 and submission of 58 people’s deputies of Ukraine dated June 2, 2020), which challenge the personnel powers of the President of Ukraine to appoint the Director of the SBI, as well as his other personnel and organizational actions, and the legal status of the SBI as a state law enforcement agency on similar grounds as in the case of NABU. Therefore, it is expedient for the Verkhovna Rada to make appropriate amendments to the Law “On the State Bureau of Investigation”, without waiting for the decisions of the CCU on this issue.