Weekly analytics for 17 — 23 May
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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Council of Europe Summit Agrees to the Creation of the Register of Damages for Ukraine
On May 17, 2023, the Council of Europe Summit of Heads of State and Government in Reykjavík adopted Resolution CM/Res(2023)3 on the signing of the Expanded Partial Agreement on the Register of Damages Caused by Russia’s Aggression Against Ukraine.
Member states of the organization, with exception of a few, were represented at the Summit at the highest level. In addition to the leaders of European countries, representatives of observer states in the Council of Europe also took part in the meeting. A total of 41 states and the European Union as an organization have joined the agreement, and 3 more states have expressed their intent to join after completing certain internal procedures.
It is anticipated that a special Register will record information about damages, as well as collect claims for compensation. However, it will not be a compensation mechanism, but only the first step towards its creation.
Talks about the implementation of a compensation mechanism, with the help of which it will be possible to compensate Ukraine for the damages caused by the Russian military aggression and to rebuild all that was destroyed, have been going on for a long time. As reported, about USD 300 billion of frozen assets of the Russian Central Bank and seized money and property of sanctioned Russian oligarchs currently comprise a potential “fund” for such payments. However, the determination of the payment recipients, their amount, and the order of processing remains a complex unresolved issue.
In order to compensate for damages, the total amount of all damages must first be determined. The Register that was agreed upon at the summit in Reykjavík is designed precisely to collect information on damages caused by the Russian aggression, as well as to register claims for compensation from the state of Ukraine, its state bodies, local self-government bodies, individuals, and legal entities.
According to the Statute of the Register contained in the annex to the adopted Resolution, the Register will serve as a platform for interstate cooperation within the institutional boundaries of the Council of Europe. It is created for an initial period of 3 years with the possibility of extension. Formulated as a large database, the Register will be physically located in the “legal capital of the world” – The Hague (Netherlands). The register will receive and process information on claims for compensation and evidence of its infliction; categorize, classify, and organize such claims, evaluate and determine the admissibility of claims for inclusion in the Register, and record the accepted claims for the purpose of their further consideration and resolution. The Register will not exercise any adjudicative power over such claims, i.e. it will not determine liability or allocate benefits or compensations. In other words, the Register exists to collect and systematize information and is neither a judicial nor a quasi-judicial institution.
Three conditions are identified as the main criteria for admissibility of claims for compensation. Damage, loss, or injury must be caused:
1) in the period starting from February 24, 2022;
2) within the internationally recognized borders of Ukraine (including territorial waters);
3) by internationally illegal actions of the Russian Federation in or against Ukraine.
The register will have legal personality in accordance with the national legislation of the Netherlands and Ukraine and, in particular, will be able to enter into contracts and to acquire and alienate movable and immovable property. The register will also have a branch in Ukraine to maintain contact with the Ukrainian government and to facilitate awareness raising and outreach to claimants and the general public.
The Council of Europe resolution also calls on other countries of the world and international organizations to become members of the Registry. So far, 40 European countries, the USA, Canada, Mexico, Japan, and the EU have signed or committed to sign the agreement.
The creation of the Register of Damages is an important step towards restoring justice for the victims of the Russian-Ukrainian armed conflict. The register will be the foundation for the future compensation mechanism. It appears that the signatories are interested in launching the Register as soon as possible. Presumably, both the state of Ukraine and the residents of our country will soon be able to submit a claim for compensation in an electronic form without any issues, with all required evidence of the damage caused to them. The Ministry of Justice assures that an understanding has been reached between the signatories of the agreement that the fact that property was destroyed (or injuries inflicted) as a result of hostilities will be sufficient for the claim to be accepted. That is, even if, say, a Ukrainian projectile damaged a person’s property, the obligation of compensation will fall on Russia, since the damage was caused as a result of armed aggression.
Thus, despite the fact that the scope of the database will not cover the previous 8 years of the Russian Federation’s war against Ukraine (which is explained by the lack of recognition at the UN level of the military aggression of the Russian Federation against Ukraine since 2014) and the fact that actual monetary payments are still far away (determining the amounts and assigning payments will be handled by a future compensation mechanism), the decision to create a Register of Damages is an essential step to restoring justice.
Supreme Court without a Head. What does it mean?
On May 16, 2023, the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAP) notified the Chair of the Supreme Court V. Kniazev of the suspicion of receiving an illegal benefit in the amount of USD 2.7 million. The Plenum of the Supreme Court issued a vote of no confidence in Kniazev and terminated his powers as Chair, and the High Council of Justice consented to keeping him in custody.
On May 18, the High Anti-Corruption Court applied a precautionary measure in the form of detention with an option to post bail against the former Chair of the Supreme Court.
A few days later, information appeared in the media that Judge Kniazev intended to influence the decision of the High Council of Justice (HCJ) regarding the formation of the High Qualification Commission of Judges of Ukraine (HQCJ).
CPLR’s expert assessment
- According to Art. 125 of the Constitution of Ukraine, the Supreme Court is the highest court in the judicial system of Ukraine. In accordance with Art. 39 of the Law “On the Judiciary and the Status of Judges”, the Chair of the Supreme Court
- represents the Supreme Court in dealings with state authorities, local self-government bodies, individuals, and legal entities, as well as with judicial bodies of other states and international organizations;
- convenes the Plenum of the Supreme Court;
- submits to the Plenum a nomination for election of the Secretary of the Plenum;
- presents issues to the Plenum’s consideration and presides over its sessions;
- monitors the effectiveness of the Supreme Court’s staff, approves the appointment of the Chief of the Court’s staff and his first deputy, and submits proposals to apply incentives to the or impose disciplinary sanctions to the Chief of the Court’s staff and his first deputy in accordance with the law;
- exercises other powers defined by law.
Furthermore, the Chair of the Supreme Court is an ex officio member of the HCJ, which is a collegial, independent constitutional body of state power and judicial governance; and an ex officio member of the Grand Chamber of the Supreme Court, which studies and summarizes judicial practice, considers appeals against cases in which the Supreme Court acted as a court of first instance, and reviews court decisions through the cassation procedure.
Article 126 of the Basic Law guarantees the independence and inviolability of judges, as well as provides for grounds for their dismissal and termination of powers. A judge may not be detained, or kept in custody, or arrested without the consent of the HCJ until the issuance of a guilty verdict by a court, with the exception of a judge’s detention during or immediately after the commission of a grave or particularly grave crime.
After the issuance of a vote of no confidence and the termination of the Chair’s powers, the Supreme Court was essentially left without its top administrative officer. According to Art. 39 of the Law “On the Judiciary and the Status of Judges”, in the absence of the Chair, his or her administrative powers are exercised by the Deputy Chair, who was never appointed; and in the absence of the Deputy Chair, by the judge who has served the longest in the Supreme Court. A new Chair of the Court should be elected within a month from the date of termination of the powers of the previous Chair, with the Plenum of the Supreme Court convened separately for this purpose.
Thus, the notice of suspicion to Kniazev and the early termination of his powers as the Chair, although causing reputational damage to the entire judicial system, should not significantly affect the work of the Supreme Court, except for cases that were under his consideration, as well as the work of the HCJ, which retains its authority despite the absence of the President of the Supreme Court. In addition, it should be noted that, despite the termination of his powers as the Chair of the Supreme Court, V. Kniazev remains a judge.
- In addition, legislation provides for the possibility of temporary suspension of a judge from the administration of justice in connection with criminal prosecution. According to Art. 131 of the Criminal Procedure Code of Ukraine, this is one of the precautionary measures in criminal proceedings, the purpose of which is to achieve the effectiveness of such proceedings.
The procedure for applying the noted procedural measure is regulated by Articles 155, 151-1 of the Criminal Procedure Code of Ukraine and Article 63 of the Law “On the High Council of Justice”.
The decision on the temporary suspension of a judge from the administration of justice in connection with criminal prosecution is made by the HCJ on the basis of a motivated petition by the Prosecutor General or his deputy. Such decision may be appealed. At the same time, the entity entitled to review appeals against decision of the HCJ in accordance with Art. 35 of the Law of Ukraine on the HCJ is the Supreme Court. As a general rule, appealing a decision of the HCJ does not stop its execution.
- In accordance with the Law “On the Judiciary and the Status of Judges”, the HQCJ is a collegial body which, among others, conducts the qualification evaluation of judges and makes recommendations to the HCJ on the appointment and transfer of judges.
In accordance with Article 83 of the Law “On the Judiciary and the Status of Judges”, the qualification evaluation is carried out in order to determine the capacity of a judge (or a candidate for the position of a judge) to administer justice in a relevant court according to the criteria of competence, professional ethics, and integrity.
As of now, the HQCJ does not operate. The authority of the previous membership of the Commission was terminated in November 2019; as such, the judicial system’s membership has not been updated for more than 3 years.
One of the recommendations of the European Commission regarding Ukraine’s membership in the European Union was related to the formation of the HQCJ. In March 2023, the competition commission that included international experts completed the selection of 32 candidates; 16 of them should be chosen by the HCJ to form the new membership of the HQCJ.
After the publication of lists of candidates for the HQCJ with “+” and “-“ marks, which were allegedly discovered in V. Kniazev’s office, the HCJ’s decision regarding the formation of this body is under heightened public attention, and the HCJ itself bears an even greater responsibility for ensuring objectivity of this decision.
- Other points of legal and ethical nature also follow from this event:
- review of the decision of the Grand Chamber of the Supreme Court in the case of invalidating the purchase and sale agreement of 40.19 % of shares of Poltava Mining and Refinery PJSC due to exceptional circumstances (i.e., after a verdict of a court regarding the guilt of Judge V. Kniazev in committing crime enters into force);
- changing the membership of the Grand Chamber through the election of judges of the Supreme Court to the Grand Chamber by the assemblies of judges of relevant cassation courts from among judges of those courts;
- dismissal from office of judges who were found with marked money on the basis of committing a significant disciplinary offense or gross or systematic neglect of their duties (in accordance with Article 126 of the Constitution of Ukraine and Article 115 of the Law of Ukraine “On the Judiciary and the Status of Judges”) – after the launch of the mechanism of disciplinary responsibility of judges;
- conducting the monitoring of the lifestyle of judges who were found with marked money, including comparing the property of those judges and their family members against their received incomes, in order to determine alignment with their standard of living (particularly, at the request of the HCJ). Its results can also be used to assess a judge’s compliance with the rules of judicial ethics.