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New presidential draft law on judicial reform: running in a circle
On June 22, the President of Ukraine submitted to the Verkhovna Rada of Ukraine a draft law “On Amendments to the Law of Ukraine “On Judiciary and Status of Judges” and Some Laws of Ukraine on the Activity of the Supreme Court of Ukraine and Judicial Governance Bodies”. As it is stated in the explanatory note, the purpose of the Draft Law is to improve the activity of the judicial governance bodies and to bring the provisions of the legislation into compliance with the decisions of the Constitutional Court dd. 18.02.2020 No. 2/ 2020 (see the Analysis of the CPRL experts) and dd. 11.03.2020 No. 4/ 2020 (see the Analysis of the CPRL experts), which declared the liquidation of the Supreme Court of Ukraine unconstitutional, as well as certain provisions of the first law of the President Volodymyr Zelensky related to the judicial reform.
The proposed amendments can be divided into three blocks:
1. Subordination of The High Qualifications Commission of Judges of Ukraine to the Supreme Council of Justice
The draft law stipulates that the High Qualifications Commission of Judges (hereinafter referred to as the “HQCJ”) shall consist of 16 members appointed by The Supreme Council of Justice (hereinafter referred to as the “SCJ”) based on the results of the competitive selection for four years. The regulation on the competition is approved by the HCJ itself. Persons who were members of the High Council of Justice, the SCJ or the HQCJ before the law was passed will not be able to apply for positions on the Commission.
A selection commission consisting of 4-6 members is established to conduct the competition: (up to) three persons from among judges or retired judges proposed by the Council of Judges of Ukraine, and (c) three international experts identified by the SCJ on the basis of proposals of international and foreign organizations, who provide Ukraine with international technical assistance or conduct their activities in the areas of justice and/or judicial power and/or prevention and combatting corruption. The final decision on the personal composition of the selection commission shall be made by the SCJ. In case international/foreign organizations do not offer enough experts to be included into the commission, the Verkhovna Rada Commissioner for Human Rights may provide his proposals.
The decision of the selection commission shall be deemed adopted if the majority of its members voted for it, provided that two persons from among those who voted for this decision are appointed according to the quota of international experts. The Commission shall select one candidate for each vacant position of the member of the HQCJ, who shall be appointed by the SCJ after special check.
According to the draft law, the newly established HQCJ will be virtually subordinated to the SCJ, as the council will approve/ adopt the acts of the judicial selection, training, and evaluation of the Commission and dismiss its members.
2. Expanding the powers of the Supreme Council of Justice
The draft law presupposes a significant expansion of the SCJ ‘s powers. At the same time, no changes are envisaged in the organization of work and selection of SCJ members. The returning of the provision, according to which the subject of appointment may dismiss a council member for violations only at the request of the council itself, was also proposed and supported by at least 14 council members. A SCJ member can be released by the council itself only in case of health problems or when he/she submits an application for dismissal. Moreover, it is proposed that any references to the Integrity and Ethics Commission, which was to conduct integrity reviews of existing PSC members and participate in the selection of new members, be removed from the law.
It is also proposed to remove from the law provisions of the previous law initiated by President Zelensky that were declared unconstitutional and to return the previous provisions of the law on disciplinary procedure.
3. The accession of the Supreme Court of Ukraine to the Supreme Court and transfer of judges
The Supreme Court of Ukraine, which ceased to function in 2017, will be joined to the Supreme Court, and judges of the Supreme Court of Ukraine will be enlisted to the staff of the respective сourts of сassation of the Supreme Court of Ukraine with their further qualification assessment within a year. At the same time, at the request of the HQCJ, the SCJ should approve a special procedure and methodology for the assessment of such judges. Failure to pass such assessment will result in the dismissal of the judge from his or her position.
It is also proposed to remove from the Law on Judicial System a provision establishing the maximum number of Supreme Court judges.
Should the law be adopted:
- The SCJ will be able to fully control the process of selection of the members of the HQCJ through approval of the regulation on the competition. During the implementation of President Vladimir Zelensky’s first law on judicial reform, the SCJ has acted so by setting the rules for the competition, which distorted the meaning of the competition procedure (see the Weekly Analytics on December 2-9, December 9-16, 2019, January 13-20, January 20-27, February 4-10, February 24-2, 2020). The proposed procedure for forming the HQCJ creates wide limits for manipulating the SCJ competition. Furthermore, the SCJ will be able to form an authorized composition of the competition commission with violation of parity representation of Ukrainian judges and international experts, leveling the role of the latter;
- expansion of the number of subjects who may nominate international experts to the selection commission may lead to the formation of the selection commission controlled by SCJ. In particular, the draft law presupposes the inclusion of any international or foreign organization operating in the sphere of justice, judiciary and anti-corruption to these subjects. At the same time, it is not even required that Ukraine should cooperate with such organizations or that they should provide international technical assistance. In other words, any organizations with the relevant sphere of activity and foreign registration will be able to submit expert candidates to the selection commission. On the other hand, the election of international experts among the submitted proposals is full discretion of the SCJ, which is beyond any control;
- empowering the SCJ with additional functions without reforming the SCJ itself could lead to an even greater decline in the efficiency of the council.
- Moreover, the draft law does not comply with Ukraine’s commitments on judicial reform to the International Monetary Fund. In particular, contrary to the commitments made (see the Weekly Analytics, June 8-15, 2020), there are no prescribed mechanisms for verifying the integrity of the current SCJ members and candidates to the council, and there are no plans to improve the procedure for bringing judges to disciplinary responsibility by establishing an inspection unit within the SCJ.
Taking this into account, the draft law should be substantially improved in the following areas:
- ensuring the integrity of SCJ activities: an independent commission with international experts should verify current SCJ members to ensure that their conduct meets the requirements of integrity and professional ethics, with the possibility of further termination of their powers; SCJ candidates should also undergo such verification;
- the formation of the HQCJ (at least for the previous assignment) should be carried out outside any control of SCJ by an independent selection commission with a crucial role for international experts. Disputes over the activities of such a commission, regardless of the subject matter of its activities, should be within the exclusive jurisdiction of the Supreme Court. The SCJ ‘s authority in the selection of the HQCJ members should be limited to the ceremonial appointment of the members selected by the Commission;
- the new HQCJ has the necessary level of independence from the SCJ in its activities, especially with regard to the independent approval of procedural acts on the selection and assessment of judges. The role of the SCJ can be strengthened only after the first task has been successfully completed.
Parliament provided an opportunity to solve certain problems of the judiciary
On June 18, the Verkhovna Rada of Ukraine passed several important laws related to the judiciary, including:
- “On Amendments to the Law of Ukraine “On the High Anti-Corruption Court” on the Allocation of Premises and Other Issues of the High Anti-Corruption Court” (No. 3348), which provides for the authority of the High Anti-Corruption Court (HAC) to manage state-owned property belonging to the scope of its administration (currently there is no such authority), as well as the election of investigative judges for up to two years with the possibility of their re-election (now investigative judges of the HAC are elected by the congress of judges for one year without the right for re-election for two consecutive terms);
- “On Amendments to the Law of Ukraine “On Debt Restructuring of the State Enterprise “Antonov” to Clarify Certain Issues of Debt Restructuring in order to create preconditions for providing premises to the High Anti-Corruption Court” (No. 3350), which provides for the transfer by “Antonov” company of a non-residential building located at 41 Peremohy Avenue in Kyiv to the sphere of management of a state body. This very building is already used by part of the HAC judges who administer justice there;
- “On Amendments to Certain Legislative Acts of Ukraine Concerning the Procedural Time Limits During Quarantine Established by the Cabinet of Ministers of Ukraine for the Prevention of the Spread of Coronavirus Disease (COVID-19)” (No. 3383), which stipulates that during the quarantine, procedural time limits shall not be renewed/continued by the court automatically, but only at the request of the party to the case.
1. Laws relating to the activities of the HAC may have a positive effect on its work. They unblock the solution of the problem of not providing the court with its own premises. According to the CPLR experts, securing the right of the Court to manage state-owned objects will allow it to carry out major repairs in the relevant premises, i.e. adapt them to the needs of the judiciary.
The possibility of electing investigating judges for two years with the right to re-election addresses the problem that may arise in September 2020, when the one-year term of office of investigating judges expires and according to the current law other judges are to be elected as investigating judges, which may adversely affect the efficiency of the hearings of the three HAC panels, as judges from such panels will in fact be forced to perform only the functions of an investigating judge, while former investigating judges will not be able to hear cases in which they have participated as investigating judges.
However, the original version of the draft law provided that investigating judges are elected for a term of three years (similar to judges of local general courts), but during the second reading, the legislator reduced this term. In addition, compared to the original version of the law, a number of provisions were removed that provided for the establishment of different requirements for candidates for the position of a judge of first instance (including the exclusion of the requirement for “special” work experience) and the HAC Appeals Chamber, as well as partial removal of restrictions for them (for example, granting the right to become a judge of the HAC to former officers of the law enforcement bodies, the prosecutor’s office, the National Anti-Corruption Bureau of Ukraine).
2. The law on the duration of procedural terms in quarantine conditions should solve the problem of “freezing” of justice, which arose on April 2, after almost all procedural terms were automatically extended for the duration of the quarantine. The adopted law stipulates that during the quarantine the procedural terms shall be renewed/extended by the court at the request of a person, if the court recognizes that the impossibility of their observance is due to quarantine restrictions.
Compared to the original version, the adopted law eliminates some shortcomings, which were pointed out by the CPLR experts. According to the original version of the draft law, the court renewed/extended the procedural terms for the entire period of quarantine, without taking into account the actual time required by the party to perform the relevant procedural action. Another important clarification that was introduced is that the reasons for non-compliance with procedural terms should be related to quarantine restrictions, which will prevent the abuse of this institution in practice.
Parliamentarians proposed appointing judges under a simplified procedure
On June 18, the draft law “On Amendments to the Law of Ukraine “On the Judiciary and Status of Judges” Concerning the Procedure for Appointment to the Position of a Judge of a Local Court and Court of Appeal under a Special (shortened) Procedure” was submitted to the Parliament. Special (shortened) procedure is the possibility to appoint to the position of a judge of a local or appellate court persons in respect of whom the High Qualifications Commission of Judges (hereinafter – HQCJ) within the competitive procedures has decided to recognize them as confirming their ability to administer justice in the court of appeals or the Supreme Court respectively. Such a decision of the Commission must have been adopted not earlier than four years before the day of the announcement of the competitive selection under a special (shortened) procedure.
Competitive selection for such categories of persons shall be announced by the High Council of Justice (hereinafter – the HCJ). Transitional provisions of the draft law stipulate that the HCJ must announce such a competition within one month from the date of entry into force of the law.
The draft law has a number of significant shortcomings, which, according to the CPLR experts, make it impossible to implement the proposed procedure, in particular:
- the law gives the HCJ powers that are not typical for it and at the same it time does not provide for amendments to the Law “On the High Council of Justice”;
- according to the Law “On the Judiciary and Status of Judges”, the HQCJ organizes competitive selection for vacant judicial positions. Under the proposed regulations, competitions for judicial vacancies in local and appellate courts will be announced and conducted by two entities, which in practice may lead to inconsistencies in the number of vacancies for which competitions are announced, as well as discrimination against individual participants;
- a special (shortened) procedure for the appointment of judges makes it impossible to conduct a special check on candidates, as well as the participation of the Public Council of Integrity in such selection, as such checks are conducted only when the competition is conducted by the HQCJ;
- competitions to the Supreme Court held in 2016-2017 and 2018-2019 were partially different, in particular as regards the procedure for determining the persons who successfully passed the “Exam” stage, as during the first competitive selection, all persons who had the minimum score, were admitted resolving the practical task and further to the interview, while in the second competition, passing to the next stage was available only for persons who received the minimum score and ranked in the list of the first N-candidates, where N is the number of multiples of the number of vacancies for which the competition was announced. That is, if the participants of the competition to the Supreme Court of different years simultaneously participate in the competitive selection according to the special procedure, their discrimination will take place;
- resolving the issue of appointing a person to the position of a judge on the basis of the results of assessment of his/her professionalism and integrity several years ago contradicts the requirements of the law, which stipulate that a person must meet the requirements for a judge at the time of appointment. For example, the participants of the first competition for the Supreme Court, which took place in 2016-2017, had to resolve the task related to the knowledge of the procedural law, which is now completely invalid. Under the proposed procedure, the HCJ will in no way be able to verify the level of competence of the candidates. In addition, over the last four years, a person might have committed conduct that should be assessed in terms of integrity and professional ethics, but the draft law does not provide for this.
It should also be noted that the HQCJ has not completed the competitions in the courts of appeal. This means that in the case of the adoption of this draft law, it will actually apply only to persons who participated in the competition to the Supreme Court.
In addition, as the CPLR experts have repeatedly noted, the HCJ is overburdened with current tasks. Giving it new powers to organize and hold competitions will further exacerbate the problem of overburdening the Council and in practice may lead to even greater inefficiency in the performance of its functions.
In view of the above, we recommend the legislator to take steps to establish the HQCJ as soon as possible, instead of transferring the functions of the Commission to the HCJ, without making institutional changes to the latter.
Criminal law is a two-edged blade: be careful with it
No later than on June 26, the President of Ukraine must sign and officially promulgate the Law “On Amendments to the Criminal Code Ukraine on Liability for Crimes Committed by the Criminal Community “(hereinafter – the Law of 4 June) adopted by the Verkhovna Rada of Ukraine on June 4, or return it with its reasoned and formulated proposals to Parliament for reconsideration.
Compared with the current Criminal Code of Ukraine (CC), the law of June 4 abolishes the criminal responsibility for participation in crimes committed by a criminal organization (this means that the person who committed such crimes will be liable only under articles that provide for such crimes), as well as establishes responsibility for some actions that have not been considered criminal so far. These are:
1) management of structural units of a criminal organization (Part 1 of Article 255);
2) creation of a criminal community (Part 4 of Article 255);
3) leadership of a criminal community (Part 4 of Article 255);
4) installation or distribution in society of criminal influence (Article 255-1);
5) appeal for application of criminal influence (Articles 255-3).
In summary, the key the concepts of the Law of June 4 are the concepts of “criminal community”, “criminal influence”, “person who exerts criminal influence” and “person who is in deemed to have an increased criminal influence, including in the status of “thief in law”.
The concept of “criminal community” is defined by the legislator directly in the disposition of Part 4 of Article 255 of the Criminal Code as a union of two or more criminal organizations. At the same time, the Law of June 4 clarified the concept of “criminal organization” – now it should be determined as an association, which is characterized by the following features: 1) it is stable; 2) it is hierarchical; 3) it consists of five or more people; 4) its members or structural parts pre-arranged for joint activities; 5) purpose of this activities is: a) the direct commission of serious or especially serious crimes by members of this organization, or b) leadership or coordination of the criminal activities of other persons, or c) ensuring the functioning of both the criminal organizations itself and other criminal groups.
This definition is difficult to call ideal at least because it includes a number of evaluative features and, most importantly, allows to recognize an association as a criminal organization if it does not have the purpose of committing crimes at all.
Moreover, even a bigger problem of the Law of 4 June is the legal uncertainty of the other concepts mentioned above.
Criminal influence as a concept has the following three features: 1) it means “any actions of a person”; 2) despite the fact that they are “any”, their purpose is still “assistance, encouragement, coordination or carrying out other influence on criminal activity, organization or direct distribution of funds, property or other assets (income from them), aimed at ensuring such (i.e., obviously, criminal) activities”; 3) these actions are performed by a person “due to authority, other personal qualities or opportunities” (paragraph 1 of the note to Article 255 of the Criminal Code). This means that any person who commits such acts is “a person who exerts criminal influence”. At the same time, the severity of the crimes does not matter, and the law does not specify what exactly should be understood by authority, what specific personal qualities and capabilities a person must possess, whether such characteristics should be purely negative or this is not necessarily, whether there should be a combination of authority and personal qualities and capabilities or one of these characteristics would be enough. Therefore, as follows from Part 1 of Art. 255-1 of the Criminal Code, any homeless person who enjoys respect in his yard among other homeless people and incites one of them to malicious evasion of alimony, should be imprisoned for the term from 7 to 10 years with confiscation of property. Obviously, such punishment is not proportional.
At the same time, the characteristics of “a person who has the status of a subject of increased criminal influence, including in status of “thief in law” are as follows: 1) he/she has authority, other personal qualities or opportunities; 2) due to this, he/she exerts criminal influence and coordinates criminal activity of other persons who carry out criminal influence” (paragraph 2 of the note to Article 255 of the Criminal Code). For the creation of a criminal organization or criminal community, its leadership, participation in a criminal organization, other intentional way of establishment or spread of criminal influence in society, the above person may be imprisoned for a term of 12 to 15 years with confiscation of property (Part 5 of Article 255, Part 3 of Article 255-1).
However, the characteristics of a person who is a subject of increased criminal influence, including the status of a “thief in law”, and the characteristics of a “person who exerts criminal influence” are essentially the same.
This finds another confirmation in Article 255-3 of the Criminal Code, which establishes liability for requesting to apply criminal influence both to a person who has the status of a subject of increased criminal influence, including the status of “thief in law”, and to any person who may exert criminal influence at the knowledge of the offender.
In consequence, the Law of June 4 contains a number of provisions that contradict the principle of legal certainty and the principle of proportionality, and therefore do not comply with the rule of law and should be returned to the Verkhovna Rada of Ukraine for reconsideration. If signed by the President of Ukraine, this law must be declared unconstitutional at the request of the Verkhovna Rada Commissioner for Human Rights or another relevant entity.