Weekly analytics for 19 – 25 October 2021
Weekly analytics 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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The Verkhovna Rada complied with the Constitutional Court decision on the NABU
On October 19, the Verkhovna Rada adopted the Law «On Amendments to Certain Laws of Ukraine Concerning Bringing of the Status of the National Anti-Corruption Bureau of Ukraine (NABU) into Compliance with the Requirements of the Constitution of Ukraine» (№ 5459-1). According to this Law, the NABU will become a central executive body with a special status (without any added steps towards its liquidation or reorganization). The NABU Director will be appointed by the Cabinet of Ministers based on a competitive selection process conducted by a 6-member commission (half of them nominated by the Government itself and the other half proposed by the development partners that provided Ukraine with international technical assistance in preventing and combating corruption).
The CPLR welcomes the Parliament’s adoption of the law that eliminates inconsistencies between the Constitution and the Law «On the National Anti-Corruption Bureau of Ukraine», in addition to including the guarantees of independence of this body. Back in September 2020, the CPLR’s experts stressed the need to eliminate legal uncertainty regarding the status of a person holding the position of NABU Director due to an unconstitutional appointment that emerged from the Decision of the Constitutional Court of Ukraine (CCU) № 9-р/2020, as well as the importance of aligning the current version of the Law «On the National Anti-Corruption Bureau of Ukraine» with the Constitution.
The CCU decision № 11-р/2020 found unconstitutional a number of provisions of the Law «On the National Anti-Corruption Bureau of Ukraine» (in particular, the provisions on granting the President the authority to appoint and dismiss the NABU Director). According to this CCU decision, those provisions of the Law expired three months following the decision of the CCU (i.e., on December 16, 2020) but, unfortunately, the Parliament did not take the opportunity to fill this gap rapidly.
The implementation by the Parliament of the CCU decisions № 9-р/2020 and № 11-р/2020 clearly illustrates the problem with the unconstitutionality of the President’s acts adopted outside his constitutional authority. The CPLR has repeatedly emphasized that, according to the Constitutional provisions and the common practice of its interpretation as developed by the CCU, the scope and limits of the President’s authority are determined solely by the Constitution and cannot be expanded by a law. Therefore, any bodies that are not directly provided for by the Constitution but that have executive powers cannot have any status other than a «central executive body» and cannot fall outside the system of executive bodies.
The Parliament also must align the Law «On the State Bureau of Investigations» with the Constitution, as it has similar constitutional shortcomings. This should be done without waiting for a respective decision of the CCU regarding this Law, which would resolve the constitutional petition submitted by 58 MPs on June 2, 2020.
The Council of Judges delegated candidates to the Ethics Council
On October 23, the Council of Judges of Ukraine (CJU) delegated four candidates to the Ethics Council. It should be recalled that back on September 10, international organizations have approved the list of their representatives to be delegated to the Ethic Council.
After almost three months from the effective date of the Law №1635-ІХ on the reform of the High Council of Justice (HCJ), the CJU has finally delegated its candidates to the Ethics Council. This followed the CJU’s failure of the first vote for delegates to the Council, approval of the competition procedure, announcing and conducting the competition, and identifying the CJU candidates outside the terms set out by the law.
It should be noted that CSOs have discovered information that may indicate the failure to meet the integrity criteria by at least two of the delegated candidates (Y. Triasun and V. Siverin). This information was not even discussed during the CJU’s meeting, although the CJU members were aware of these facts. The candidates also did not provide any explanations regarding the published facts. This, once again, showed that the CJU’s announcement of the competition was only intended as a stalling tactic rather than aimed at selecting the best candidates.
As the next stage, the law sets the approval by the head of the HCJ of the Ethics Council staff (three delegates from each the CJU and the international organizations). This is to take place within five days following the deadline for submitting the lists of recommended candidates from all entities responsible for the Ethics Council formation (that deadline expired in September). The position of the HCJ head is currently vacant. At the same time, the law provides that, if the head of HCJ does not appoint members of the Ethics Council within the specified period, the first three candidates from the HCJ and the first three candidates from the international and foreign organizations list will be considered appointed.
According to the CPLR experts, given the fact that the HCJ has not been electing its head for a long time, the availability of an alternative mechanism will allow to consider the Ethics Council formed, thereby launching the process of cleansing and renewing the HCJ.