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Weekly analytics for 2 – 9 March 2020

09.03.2020

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. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua




Changing the Government is hampering the introduction of important innovations in justice


Event

On March 4, Parliament accepted the resignation of Prime Minister of Ukraine Oleksiy Honcharuk, dismissed all ministers and elected a new composition of the Government. On the website of the Verkhovna Rada of Ukraine, all draft laws submitted by the previous composition of the CMU and not approved in the first reading are automatically marked as withdrawn.

CPLR assessment

1. According to Part 3 of Article 105 of the Rules of Procedure of the VRU, the draft laws introduced by the CMU are considered withdrawn if, before their approval in the first reading, the Government’s powers were terminated. Instead, part 5 of Article 27 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine” does not provide for automatic recall of such draft laws, leaving this decision at the discretion of the new CMU.

In view of the above, there is a contradiction between the provisions of the VRU Rules of Procedure and the Law “On the Cabinet of Ministers of Ukraine” that needs to be eliminated. Adjusting the law on government is preferable because it gives the new Government the right to selectively or completely withdraw previous governmental initiatives, while the automatic removal of draft law can significantly delay the adoption of important laws that are supported by the newly formed government.

2. In accordance with the provisions of the Rules of Procedure, a number of draft laws that could have a positive impact on justice were automatically withdrawn, in particular:

  •  No. 2706 (encouraging the development of extrajudicial mediation),
  •  No. 3045 (restoration of arbitration proceedings),
  •  No. 27092710 (introduction of the classic trial jury),
  •  No. 3149 (compensation for victims of violent crimes).

According to CPLR experts, it is important for the newly formed Government to submit draft laws on these issues to Parliament as soon as possible.



Verkhovna Rada of Ukraine has dismissed the Prosecutor General for political reasons


Event

On March 5, the Verkhovna Rada of Ukraine expressed its distrust to the Prosecutor General Ruslan Ryaboshapka by adopting Resolution No.3154, which entails his resignation.

263 people’s deputies voted in favor of the resolution, while a simple majority of the constitutional composition (226 votes) was required to make the decision. Prior to this, the Verkhovna Rada Law Enforcement Committee refrained from assessing the draft resolution and recommended that deputies consider it at their own discretion.

The main arguments of the initiators of the resolution were that “the Prosecutor General does not investigate, hinders the investigation of the most resonant criminal proceedings, which indicates the unwillingness, impossibility or inability of the Prosecutor General to fulfill the tasks set by law before the Prosecutor General’s Office, in particular, and the public prosecutors’ system, in general.

CPLR Assessment

According to the Constitution of Ukraine, the Laws on the Prosecutor’s Office and the Rules of Procedure of the Verkhovna Rada of Ukraine, there are two procedures for dismissal of the Prosecutor General:

1) in case of committing a disciplinary offense, entering into force a court conviction in relation to him, termination of citizenship of the state, etc. (professional procedure) (the decision is adopted by the Parliament, considering the submission of the President of Ukraine, in turn addressed by the HCJ or the QDCP);

2) political procedure, which consists in expressing distrust by a simple majority of the constitutional composition of the Verkhovna Rada of Ukraine (the decision is adopted by the Parliament).

The political procedure of dismissal was criticized by the Council of Europe’s Venice Commission in 2013. The Commission stated that the Prosecutor General  “… is not a member of the Government, and accordingly Parliament should not have the right to express distrust, which is a purely political instrument. It may be seen as a tool for applying a system of checks and balances in the organization of public bodies, but there is doubt that this will ensure a fair decision “ (p. 14 of the Venice Commission Opinion on the Public Prosecutor’s Law No. 735/2013).

Moreover, following the amendment of the Law on the Prosecutor’s Office (2019), the political procedure of dismissal does not require an assessment of the efficiency of the Prosecutor General in the post by the Qualification and Disciplinary Commission of Prosecutors. Consequently, a situation arises under which the reasons for dismissal can only be political, which negatively affects the independence of the Prosecutor General.

According to Yevhen Krapyvin, the CPLR expert, “… neither the decree of expressing distrust nor the speech from the tribune of the Verkhovna Rada by its initiator contained any professional (expert) justification for the ineffectiveness of the Prosecutor General, testifying that “he did not manage”, as the President of Ukraine said. Instead, one would rather be convinced that Ryaboshapka was guilty of being insufficiently “controlled” by the President’s Office.”

The political procedure for the appointment and dismissal of the Prosecutor General should be changed and the reform of the prosecuting authorities continued.