Weekly analytics for 16 – 22 November 2021
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.
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Parliament adopted the draft law «On Law-Making Activity» as a basis
On November 16, the Parliament adopted the draft law «On Law-Making Activity» (Reg. № 5707) as a basis. This draft law sets the principles and procedure for law-making activity in Ukraine; in particular, it governs relations related to the development, adoption (issuance), and implementation of legislative acts and regulations.
The need to optimize the rules for developing and drafting legal acts, developing clear algorithms for their systematization, as well as regulating the issues of their entry into force and revocation is long overdue. Going as far back as the late 1990s, the Verkhovna Rada has made repeated attempts to adopt a framework act on these issues (so-called «law on laws»). However, due to the lack of uniform doctrinal approaches on regulation of these issues, the low quality of the draft laws, as well as President’s use of veto for the Law «On legislative acts and regulations» (adopted in 1999), all efforts to adopt such an act have failed.
In essence, the draft law № 5707 is a revised version of the draft law «On legislative acts and regulations», which was under development by a working group of the Ministry of Justice since the end of 2019. The draft law that was adopted in the first reading, being quite topical and necessary, creates a number of problems of legal and technical nature and has many shortcomings regarding the comprehensive nature of legal regulation, in particular:
- overly narrow subject matter addressed by the draft law;
- contradictory regulation of the principles of law-making activity;
- incomplete definition of «participants of law-making activities»;
- legally inappropriate provisions on delegation of law-making powers;
- inclusion of acts of the USSR and the Ukrainian SSR in the system of legislation of Ukraine;
- superficial and incomplete regulation of the issue of planning of law-making activities;
- contradictory approach to the regulation of the concept of legislative acts and regulations, public consultations, and expert legal analysis of acts;
- preserving chaos in the structure of laws and other acts;
- legalizing the opportunity to avoid publication of regulations;
- lack of systemic approach to addressing the gaps and conflicts in application of the law;
- inappropriate approach to regulating the issue of effectiveness of legislation and regulations in time, coupled with disregarding the issue of effectiveness in space and in the range of covered actors;
- terminological and semantic confusion around the concepts of «legal» / «legislative», «law-making activity», «programmatic legal act», «framework and derivative legislative act», «reasonable time», «legal monitoring», etc.
Despite the fact that the issue of streamlining the law-making techniques in particular, and law-making activity in general, is very important and topical, draft law№ 5707 required serious revisions, as its adoption in current version will create more problems in law-making activity than it will address.
See also CPLR’s detailed analysis of the draft law.
Parliament adopted the law «On Administrative Procedure»
On November 16, Verkhovna Rada adopted the Law «On Administrative Procedure» (hereinafter – LAP). It provides for unified rules for the relations between individuals and legal entities with executive authorities, local self-governance bodies, and their officials – replacing the dozens of separate and contradictory laws that currently exist. Among others, this has to do with governing the relations on provision of administrative services (obtaining a passport, permit, license, etc.), inspection audits of business, etc.
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 year following its publication), all of this should change for the better.
Among the most important novelties of the law are the following:
- 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;
- simple rules on «representation» in administrative proceedings, in particular, without requiring a notarized power of attorney for most cases;
- 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.
Parliament has taken several steps that could positively affect the development of justice
On November 16, Verkhovna Rada adopted the Law «On Mediation» (Government’s draft law №3504). Draft laws «On amendments to the Code of Ukraine on Administrative Offenses concerning the powers of higher specialized courts on hearing cases of administrative offenses» (№5490) and «On amendments to certain legislative acts of Ukraine concerning the use of e-mail addresses» (№3860-д) were also adopted in the first reading.
- The Law on Mediation creates a legislative framework for the development of mediation as a type of voluntary out-of-court settlement of disputes through negotiations between parties. Mediation can be conducted in any category of cases, even in cases of administrative offenses and in criminal proceedings (to reconcile a victim and a suspect or accused). The parties in mediation independently choose a mediator, which can be a person that has passed basic training as a mediator in Ukraine or abroad. An important novelty of the law is that a mediator cannot be examined as a witness on the circumstances of mediation.
Based on the results of mediation, the parties may enter into an agreement setting out agreed upon commitments, the procedure for their implementation, as well as the consequences for failure to implement them or improper implementation. If a judicial dispute is settled using the mediation procedure, the party is entitled to a refund of 60% of the court fee paid.
CPLR experts support the adoption of the law, provided that if it is appropriately implemented, the development of peaceful settlement procedures for court disputes will allow to reduced the burden not only on the courts, but also the enforcement bodies.
- Draft law №5490 is intended to fill a gap that prevents higher specialized courts (for now, the High Anti-Corruption Court) to bring individuals to administrative responsibility for contempt of court while other courts are given such powers. CPLR’s experts support the adoption of the draft law.
- Draft law №3860-d aims to introduce an official e-mail address in the Unified State Register of Legal Entities, Private Entrepreneurs, and Public Associations that, along with an official e-mail address listed in the Unified Judicial Information and Telecommunication System, can be used by courts to send copies of judgments, resolutions, summons, and other documents to trial participants in electronic form. Other trial participants will also be able to send copies of procedural documents to the same e-mail address if they have such an obligation under procedural law. The draft law provides for the obligation of legal entities and private entrepreneurs to submit information about their official e-mail address to the state registrar within 6 months.
CPLR’s experts support the adoption of the draft law, as it will have a positive impact on further digitalization of justice and will allow to reduce paperwork in the courts.
Simulation of local state administrations reform
Last week, the Parliament’s Committee on the Organization of State Power, Local Self-Governance, Regional Development, and Urban Planning held an extraordinary meeting, in which it substantively changed the text of the draft law «On amendments to the Law of Ukraine “On local state administrations” and certain other legislative acts of Ukraine on reforming the territorial organization of executive power in Ukraine» (registered № 4298 of October 30, 2020), which was adopted in the first reading on March 4, 2021 and is being prepared for the second reading. This represents the third version of this draft law being put forth for the second reading. Its consideration at the Parliament’s session was scheduled for November 18, but was postponed due to the text being replaced.
According to CPLR experts, a new version of the law «On local state administrations» is required. That being said, the draft law’s version adopted in the first reading contained many progressive novelties on the organization and activities of local state administrations (hereinafter – LSA) and their heads. It has become even stronger after numerous amendments were taken into account as the draft law was being prepared for the second reading this summer.
However, fundamental, conceptual changes were made in the published third version of the draft law – unfortunately, for the worse. Provisions that should restore the heads of LSAs and deputies in the status of civil servants were removed. If this version of the draft law is adopted, they will remain mere employees of these administrations, i.e. managers without a defined status. This status was introduced in 2017 under President Poroshenko’s pressure, who used the heads of the LSAs as his 2019 election campaign managers. Apparently, President Zelenskyi has liked this practice and wants to repeat it. This creates conditions for the use of administrative resources in elections and saves money on the establishment of party structures.
In fact, the LSAs are executive bodies that implement (rather than make) public policy at the local level. Primarily, they must ensure the oversight over the legality in the local self-governance activities and prevent the transformation of decentralization into feudalization in certain on regions of Ukraine. All of this indicates the status of their heads as civil servants, which was to be regulated by the future law as adopted in the first reading.
In addition to the status of civil servants for the heads of the LSAs and their deputies, the procedures for competitive selection for these positions, mandatory special training, and their periodic rotation have been removed from the draft law, while the President has been given unconstitutional powers in the area of appointment and dismissal of the heads of the LSAs.