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Weekly analytics for 22 – 30 June 2020

30.06.2020

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




Draft law No. 3515 contains the threat of non-transparent payments for administrative services


Event

On May 20, the Parliament registered the draft law No. 3515 on the regulation of the subsistence level. It provides for a new methodology for calculating the subsistence level and a new procedure for setting salaries, fines, etc. without reference to various social “criteria”. In addition, the draft law No. 3515 proposes amendments to the Law of Ukraine “On Administrative Services”, according to which the amount of administrative fees for administrative services should be established not by law, but by the Cabinet of Ministers of Ukraine at the level of bylaws.

CPLR assessment

In general, the CPLR supports the draft law, as in Ukraine there is a long-standing need to introduce a fundamentally new methodology for calculating the subsistence level and making the level of salaries, fines, etc. not dependent on it. However, in our opinion, the amendments to the Law “On Administrative Services“ proposed by this draft law are unacceptable.

In particular, it is about the proposal to determine the amount of payment for the provision of administrative services (administrative fee) and the procedure for its collection by the Cabinet of Ministers of Ukraine. That is, the draft law proposes to transfer the authority to determine the amount of administrative fees from Parliament to the Government.

Unfortunately, all previous Ukrainian experience in this area shows that where the fee for services is set at the level of by-laws (by the Government), it is usually non-transparent, insufficiently substantiated and may even be accompanied by illegal charges. Passport sphere is a clear example of this pattern. To prove this, according to the law on the Unified State Demographic Register, the administrative fee for passports consists of several separate payments, one of which is established by a Government act for the cost of “services” and the other – by the monopolist “Poligrafkombinat Ukraina” for a document form. Each of these entities periodically increases the amount of its share of the fee, and it is even difficult for citizens to calculate the final amount. Such a procedure for setting payments turned out to be profitable for the state-owned enterprise “Document“ (Passport Service), which charges an additional UAH 450. This amount is not provided by any regulations.

It should be noted that until recently, the practice of so-called “lists of services” was widespread in Ukraine. At the same time, quite often one administrative service of the ministry was divided into several separate ones and a fee was set for each of them. Such lists were approved by the Government. This threat was somewhat minimized by the Law “On Administrative Services”, Article 11 of which established that the amount of payment for the provision of administrative services (administrative fees) and the procedure for its collection are determined by law. This specific norm was the one that the deputies were going to change.

Draft law No. 3515 also poses a threat to local governments. Their services are now mostly free of charge, and the Government is unlikely to care about the relevance and rationality of fees in this regard. As a result, local communities are still short of local budgets. In the event of the transfer of powers to the Government, this problem can be politicized and used to put pressure on local governments.

Therefore, we urge to exclude from the draft law No. 3515 a number of debatable amendments to the Law “On Administrative Services” (and other amendments related to administrative services), leaving the requirement to establish fees at the level of the law. In addition, it is necessary to adopt a law on administrative fees, which regulates the principles of establishment and use of administrative fees; criteria for payment for administrative services or making them free of charge; the procedure for determining the specific amount of administrative fees; clear criteria for setting the amount of such fees, especially their upper limit, etc.



NAPC published a draft Anti-Corruption Strategy for 2020–2024: integrity in the judiciary is one of the focuses


Event

On June 23, the National Agency for the Prevention of Corruption submitted for public discussion a draft Anti-corruption Strategy for 2020-2024 – the main program document in the area of anti-corruption policy. According to the Law “On Prevention of Corruption”, the anti-corruption strategy shall be approved by law.

Section III of the draft strategy is dedicated to the prevention of corruption in priority areas, which include the judiciary (“Fair Court”).

The NAPC states the following problems in the judicial system:

  •  lack of regulatory requirements for the integrity of members of the High Council of Justice (hereinafter – the HCJ) and the High Qualification Commission of Judges of Ukraine (hereinafter – the HQCJ);
  •  integrity and professional ethics as constitutional requirements for judges have not been implemented in practice, and the assessment of these requirements is not transparent and predictable;
  •  lack of effective permanent mechanisms to maintain the integrity of the judicial staff;
  •  existence of significant corruption risks due to the imperfection of the judicial system.

The solution of the above problems is possible through the achievement of specific strategic results, which are enshrined in the strategy and which can be divided into several groups, in particular:

  •  ensuring the integrity of HCJ and HQCJ members by stipulating this criterion in the law, as well as their selection by a special commission of representatives of the Council of Judges, international and public experts. It is also proposed to check the integrity of the current members of the HCJ by an independent external commission of representatives of the Council of Judges, international and public experts, and if a HCJ member fails to pass this integrity check, he/she should be dismissed;
  •  improvement of the qualification assessment procedure by approving clear integrity criteria jointly by the HQCJ, the Public Integrity Council and the Public Council of International Experts, ensuring full transparency and openness of the assessment process (publication of exam materials, voting and evaluation results). It is also proposed to introduce a mechanism for reviewing decisions of the previous composition of the HQCJ, according to which the HCJ refused to dismiss a judge due to unmotivated decision of the commission, as well as the successful assessment of a judge if there is information about his/her dishonesty;
  •  improvement of the institution of disciplinary responsibility of judges, which should ensure prompt and fair consideration of disciplinary cases, open, consistent and predictable disciplinary practice, real responsibility of judges for unjust decisions and failure to prove the legality of the origin of their property or property of their family members;
  •  other measures aimed at addressing certain problems of the judiciary: regular replacement of judges holding administrative positions; electronic litigation with the implementation of the extraterritorial principle of case distribution; introduction of a full-fledged jury trial; expanding the scope of alternative dispute resolution; ensuring cassation review of decisions in cases of high-ranking corruption by judges selected with the involvement of the Public Council of International Experts; conducting an independent audit of the activities of state-owned enterprises of the State Judicial Administration and taking measures to respond to the identified inefficiencies.

CPLR assessment

1. Formation of a fair and independent composition of the HQCJ and the HCJ plays a key role in ensuring fair judicial staff, as these bodies form standards of integrity when assessing the conduct of judges (within disciplinary, competitive procedures, qualification assessment). However, the members of these bodies themselves did not pass the integrity check, and their appointment is often accompanied by circumstances that cast doubt on their integrity and independence (see paragraphs 12-17 of the Alternative Report on the Status of Judges’ Independence for 2018 and paragraph 7-9 of the Alternative Report for 2019). In practice, this leads to their tolerance of cases of dishonest behavior of judges or “recognition as fair” of negative practices that have existed for a long time in the judicial system (for example, such a form of abuse of office as privatization of official housing by judges). The measures proposed in the Strategy will help to prevent such cases. Some of these measures are mentioned in paragraph 26 of the Memorandum on Economic and Financial Policy between Ukraine and the IMF.

2. In practice, the institution of qualification assessment of judges has become a formal procedure that has not shown its effectiveness. Only a few judges were dismissed on the basis of such an assessment, in most cases on formal grounds (failure to appear for the assessment or failure to take the test of knowledge of the legislation). The measures proposed in the strategy will make the qualification assessment mechanism effective and predictable, in particular through the development of agreed standards of integrity of judges.

3. Te mechanism of disciplinary responsibility does not currently ensure the achievement of its tasks, in particular the practice of the HCJ is inconsistent, selective and is used to put pressure on some judges or to cover the illegal, dishonest behavior of other judges. The constitutional basis for dismissal of judges due to failure to prove the legality of the origin of the acquired property has never been applied since its introduction (since 2016), despite numerous published facts of obvious disproportion of the judge’s property to his/her declared income. The measures proposed in the strategy will help to overcome these problems.

4. Other measures aimed at addressing certain problems of the judiciary, provided for in the strategy, are also relevant.

In summary, ignoring and unresolving for many years the problems of justice diagnosed in the draft strategy leads to the fact that no judicial reform achieves the desired results.

The proposed measures to address these issues are appropriate (provided they are properly implemented in practice) and take into account past implementation experiences of similar institutions.

In view of the above, the CPLR experts support the approaches to the establishment of integrity in the judiciary, proposed in the draft Anti-Corruption Strategy for 2020-2024.



Prosecutor General must report on the implementation of functions of the prosecutor’s office and the exercise of its powers instead of the number of "neutralized" groups and seized drugs


Event

On June 27, the Prosecutor General Iryna Venedyktova reported on 100 days in office.

The report began with a question and answer: “What does society expect most from me? Of course, imprisonments. And we have them!”

The speaker further noted that in general, “under the procedural guidance of prosecutors, law enforcement agencies investigate more than 1 million 400 thousand criminal proceedings, and more than 30 thousand cases were sent to court” (which is only 2.1% of the number of cases investigated). During the spring of 2020, “4,400 people were found guilty and sentenced to restriction of liberty or imprisonment, including 28 persons who committed corruption crimes.” However, the report further cites other figures: “The court has so far issued convictions against 167 corrupt officials”. It is not specified what period is covered by this number.

Speaking about some types of criminal proceedings under investigation “under the procedural guidance of the Prosecutor General’s Office”, Iryna Venedyktova also mentioned the intensification of representation activities of the prosecutor’s office, holding a number of coordination meetings of law enforcement officials; creation of the Investment Protection Department, “which will become a safeguard against illegal pressure on business”, as well as “continuing the reform and filling the state institution with new staff.”

This report shows the vision of the head of the Ukrainian prosecutor’s office of her role.

CPLR assessment 

According to Article 19 of the Constitution of Ukraine, public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine. This also applies to the Prosecutor General and his/her Office.

In addition to the representative, personnel and other purely administrative powers provided for in Article 9 and other articles of the Law “On the Prosecutor’s Office”, as well as the procedural powers defined by the CPC of Ukraine, the Prosecutor General must, in particular:

– organize the activities of the bodies of the Prosecutor’s Office of Ukraine, including determination of the limits of powers of the Office of the Prosecutor General, regional and district prosecutor’s offices in terms of performing constitutional functions;

– approve the strategy for the development of the prosecutor’s office.

None of this has been done by the new Prosecutor General.

Despite the fact that in accordance with Part 3 of Article 2 of the Law “On the Prosecutor’s Office”, the prosecutor’s office may not be entrusted with functions not provided by the Constitution of Ukraine and contrary to the Constitution of Ukraine, the functions of the prosecutor’s office, defined in Part 1 of Article 2 of the Law “On the Prosecutor’s Office”, still significantly contradict the functions of the prosecutor’s office, defined by the Constitution of Ukraine (see Table 1).

Table 1. Functions of the Prosecutor’s Office

Constitution of Ukraine (Article 131-1. par. 9 of the Transitional Provisions) Law “On the Prosecutor’s Office”
Article 131-1. In Ukraine, there is a prosecutor’s office, which carries out: Article 2. Functions of the prosecutor’s office

1. The prosecutor’s office is entrusted with the following functions:

1) maintaining public prosecution in court 1) maintaining state prosecution in court
2) organization and procedural management of pre-trial investigation, resolution of other issues in accordance with the law during criminal proceedings, supervision of covert and other investigative and search actions of law enforcement agencies 3) supervision of observance of laws by bodies conducting operative-search activities, inquiry, pre-trial investigation
3) representation of the interests of the state in court in exceptional cases and in the manner prescribed by law 2) representation of the interests of a citizen or the state in court in cases specified by this Law and Chapter 12 of Section III of the Civil Procedure Code of Ukraine
Section XV. Transitional provisions

9. The Prosecutor’s Office continues to perform in accordance with current laws … the function of supervision of compliance with the law in the execution of court decisions in criminal cases, in the application of other enforcement measures related to the restriction of personal liberty – until the entry into force of the law on dual system of regular penitentiary inspections.

4) supervision of compliance with the law in the execution of court decisions in criminal cases, as well as in the application of other enforcement measures related to the restriction of personal liberty of citizens.

Due organization of the activities of the bodies of the Prosecutor’s Office of Ukraine in terms of performing constitutional functions would be possible only after the coordination of these provisions of the Law with the Constitution of Ukraine. However, the Prosecutor General’s report did not say a word about this, as well as about the strategy for the development of the prosecutor’s office.

It is not clear from the Law “On the Prosecutor’s Office” what practical significance the provisions of this Law have in the context of the implementation of the constitutional functions of the Prosecutor’s Office and the principle of prosecutor’s independence (Articles 16-17, etc.), on the basis of which the Prosecutor General’s Office organizes and coordinates the activities of all prosecution bodies (Part 1 of Article 8). Obviously, such organization and coordination can mean neither day-to-day care, control and reporting, nor duplication of powers of other prosecution bodies.

The Prosecutor General should first determine what functions his/her institution should perform, define and allocate powers and resources within it, and then report on the implementation of the relevant functions and the exercise of powers. It is not for the Prosecutor General to tell how many kilograms of drugs have been seized, how many criminal groups have been neutralized and how many convictions have been handed down by a court – each of these results has its own executor.