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Weekly analytics for 23 February – 1 March 2021

02.03.2021
General news /
CPLR news

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.

If you want to receive expert analytics for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua (Ivan Holod, Сommunication manager).




Criminalization of collaborationism: options and mistakes


Event

Seven years after the beginning of the annexation of Crimea and the beginning of the occupation of certain districts of Donetsk and Luhansk regions by the Russian Federation, the issue of criminalization of collaborationism, which has not been raised in the Verkhovna Rada since 2017, suddenly became relevant. This may be due to the hope of increasing support for Ukraine from the United States and other NATO nations in its efforts to achieve a political and military victory over the occupier.

One way or another, the Parliament is proposed to consider amendments to some laws regarding:
1) criminal liability for domestic, administrative, economic, military, political, military-political and other cooperation with the aggressor state – collaborationism (No. 5135 dated 23.02.2021, by a people’s deputy Petro Poroshenko and others);
2) criminal liability for collaborative activities (No. 5144 dated 24.02.2021);
3) ensuring the responsibility of persons who carried out collaborative activities (No. 5143 dated 24.02.2021, by a people’s deputy Yehor Cherniev and others).

Draft laws No. No. 5135 and 5144 provide for the amendment of the Criminal Code of Ukraine (hereinafter – the Criminal Code) by a new Article 111-1 “Collaborationism”, and delegate the power to investigate the crime of collaboration on the security investigative bodies. Thus, in their main content, these draft laws are alternative, although they are not registered as such.

In addition, draft laws No. 5144 and No. 5143 provide for:
– a special term of deprivation of the right to hold certain positions or engage in certain activities as the main or additional punishment for committing criminal offenses against the national security of Ukraine provided for in Article 111-1 of this Code – from ten to fifteen years;
– application of measures of criminal law nature to legal entities, the authorized persons of which, acting on their behalf, committed a crime under Art. 111-1 CC;
– conducting a special pre-trial investigation of this crime;
– prohibition for persons with a criminal record for committing this crime to be members of election commissions, official observers, authorized representatives of the candidate for President of Ukraine in the CEC, proxies of the candidate for President of Ukraine, party representatives in the CEC, candidates in local elections, representatives of party organizations in the election commission, authorized persons of the party organization, proxies of candidates;
– impossibility of accepting to the Armed Forces and other military formations of persons with a criminal record for committing a crime under Article 111-1 of the Criminal Code, and the grounds for refusing admission to a state secret for such persons;
– liquidation of relevant legal entities whose authorized persons have been convicted of committing the above crime.

CPLR assessment

The main disadvantage of the dtaft laws No. No. 5135 and 5144 is that they do not propose to change the current Articles 109, 110, 111 and 260 of the Criminal Code, which makes it practically impossible to distinguish collaboration from actions aimed at forcible change or overthrow of the constitutional order or seizure of state power, encroachment on the territorial integrity and inviolability of Ukraine, the creation of non-statutory paramilitary or armed groups, and especially – of treason (the text of the draft law No. 5144 used the wording “in the absence of signs of treason” only once in Part 6 of Article 111-1, which allows such a distinction).

In fact, according to Art. 111 of the Criminal Code, treason can take three forms: 1) the transition to the side of the enemy in a state of war or during an armed conflict; 2) espionage; 3) providing assistance to a foreign state, foreign organization or their representatives in carrying out subversive activities against Ukraine.

At the same time, transition to the side of the enemy means that a citizen of Ukraine provides direct assistance to a state with which Ukraine is at war or in armed conflict. In specific cases, this crime may consist of entering the service of the police, prosecutor’s office, courts, military or other formations of the enemy state or its occupation administration, assistance to agents of its special services. The notion of “assisting in subversive activities against Ukraine” is broad and means promoting possible or actual efforts to harm Ukraine’s national security.

From these actions it is impossible to distinguish such actions as:
– transfer of material resources to armed or paramilitary formations of the aggressor state; conducting economic activity in cooperation with the aggressor state; voluntary occupation by a citizen of Ukraine of a position related to the performance of organizational or administrative functions in the occupation administration of the aggressor state, including illegal judicial or law enforcement agencies; participation in the armed formations of the aggressor state or providing such formations with assistance in conducting hostilities against the Armed Forces and other military formations of Ukraine, etc. (draft law No. 5144);
– participation in an armed conflict on the side of the aggressor state; public appeals to support or cooperate with the aggressor state and/or the occupying authorities; conducting economic activities together with the occupying authorities and business entities located in the territory of the Autonomous Republic of Crimea, the city of Sevastopol and in the territories of certain districts of Donetsk and Luhansk regions, regardless of the place of registration of such business entities; organization and holding under the control of the aggressor state of elections, referendums, polls, plebiscites and other forms of direct expression of the will of citizens in the temporarily occupied territories; organization of mass political events in the framework of cooperation with the aggressor state; taking positions in bodies established by the aggressor state, which performed or are performing in the temporarily occupied territory functions inherent in state authorities or local self-government bodies; transfer of tangible and intangible resources to the regular troops of the aggressor state, etc. (draft law No. 5135).

Both draft laws, which provide for the addition of Article 111-1 to the Criminal Code (No. 5135 and No. 5144), contain some other unacceptable provisions. In particular, according to these provisions:
1) people’s lives are estimated at UAH 1,135,000. This is because the same punishment is established for collaborationism, which resulted in both deaths of people and property damage, which is a thousand times or more than the tax-free minimum income. It is unclear how the authors of the draft laws estimate the life of one person;
2) despite the fact that according to the current Criminal Code, negligent cause of death of several persons is punishable by imprisonment for a term of 5 to 8 years (Part 2 of Article 119), and premeditated murder – from 10 to 15 years or life imprisonment (Part  2 of Article 115), Article 111-1 provides for imprisonment for a term of 15 years or life imprisonment for actions or decisions that led to the death of people (i.e. both intentionally and negligently). First, such punishment is disproportionate in the case when these consequences were not covered by the intent of the guilty person, and, second, it does not take into account the requirements of the Criminal Code on its individualization.

In addition, the draft law No. 5135 has a number of other shortcomings. In particular, it provides for public calls for cooperation with the aggressor state and / or the occupying authorities as a form of collaboration (paragraph 2 of the note) and for posting calls on the Internet to support the actions of the aggressor state and disseminate information on the Internet (paragraph 6 of the note), as well as the organization and participation in information campaigns aimed at ensuring the support of the aggressor state (paragraph 9 of the note). Despite the fact that all these three cases relate to the same actions, Part 4 of Art. 111-1 at the same time provides for responsibility for public appeals to collaboration and dissemination of materials with such appeals. Such duplication of norms is not justified by anything.

A positive feature of the draft law No. 5135 is that it more precisely defines the temporarily occupied territories of Ukraine, including the ORDLO, and also contains a definition of “collaborationism”, which consists of the following six features: a) intent; b) voluntariness; c) special subject – a citizen of Ukraine; d) action – cooperation with the aggressor state or its representatives; e) cooperation in the interests of the aggressor state; f) cooperation to the detriment of the national security of Ukraine or its allies. However, this definition has drawbacks: first, it is not specified whether in the context of Article 111-1 of the Criminal Code persons who have acquired the citizenship of another state, including unrecognized, or otherwise actually renounced Ukrainian citizenship should be considered citizens of Ukraine; second, whether cooperation in the interests of the aggressor state should be considered collaborationism if the national security of Ukraine or its allies was not harmed, or, conversely, the national security of Ukraine or its allies was harmed but the interests of the aggressor state were not satisfied.

Finally, given the completeness of legal regulation and better legislative techniques, draft laws No. 5144 and No. 5143 could be given preference. However, they are not perfect either. In particular, the draft law No. 5144, in addition to the above-mentioned shortcomings:
– contains some vague wording, such as “actions aimed at implementing the educational standards of the aggressor state” (instead of “implementing the educational standards of the aggressor state”), and defines “political measures” as any measures regardless of their agenda and content;
– systematically uses the connecting conjunction “as well” instead of the separating conjunction “or”, which emphasizes the possibility of qualifying the crime under Art. 111-1 of the CC only if a combination of actions is committed;
– does not determine whether a person who is not a citizen of Ukraine may be the subject of the relevant crimes;
– provides for extremely disproportionate due to their extreme severity penalties for actions defined in Art. 111-1 o the CC;
– contains duplication of norms (for example, in Part 1 of Article 111-1 – public calls for non-recognition of the spread of state sovereignty of Ukraine, in Part 5 – public calls for illegal elections and referendums, and in Part 6 – information activities, related, in particular, to the dissemination of relevant information, Part 7 refers to participation in illegal armed or paramilitary formations, and Part 4 – the transfer of material resources, although Article 260 of the current Criminal Code already provides for responsibility for these actions) ;
– does not take into account the need to unify the terminology of the Criminal Code (for example, Article 146-1 of the Criminal Code already uses the definition of “irregular illegal armed groups, armed gangs and groups of mercenaries created, subordinated, managed and financed by the Russian Federation, representatives of the occupation administration its state bodies and structures functionally responsible for the management of the temporarily occupied territories of Ukraine, representatives of the self-proclaimed bodies controlled by the Russian Federation, which usurped the performance of government functions in the temporarily occupied territories of Ukraine “).



High Council of Justice opposed its own purification, as proposed by the President


Event

On February 23, the High Council of Justice (hereinafter – HCJ) approved an advisory opinion on the presidential draft law No. 5068. The draft law provides for the establishment of an Ethics Council, which will assess the compliance of HCJ candidates with the criteria of integrity and professional ethics, as well as a one-time review of the integrity of current HCJ members with the possibility of recommending their dismissal. The draft law also provides for a reform of the service of disciplinary inspectors of the HCJ (see more details of the draft law in the CPLR expert analysis at the link).

The HCJ criticized the draft law, arguing that its provisions were contrary to the Constitution, encroached on the independence of the judiciary and threatened state sovereignty. Thus, the Сouncil considers the participation of the Ethics Council in the selection of HCJ members unconstitutional, as the Constitution does not contain any reservations that any body can restrict the subjects of HCJ formation, and granting the Ethics Council a kind of “veto” right in relation to unfair candidates gives it power and control functions over the subjects of HCJ formation.

Verification by the Ethics Council of the integrity of the current members of the HCJ calls into question the existing procedure for their appointment (election) to positions (including judicial positions) and undermines the authority of the subjects of election (appointment). In addition, at the legislative level there is no possibility to create bodies to inspect members of the constitutional body of state power. Moreover, the introduction of such a mechanism has already been declared unconstitutional (see the decision of the Constitutional Court of 11.03.2020 No.4-r/2020 and the expert analysis of the CPLR at the link).

The changes envisaged by the draft law regarding the automatic removal of a HCJ member who failed the inspection create an uncertain situation for such a member and the subject of appointment (election) and may lead to blocking the HCJ due to lack of quorum. The HCJ concludes that the Ethics Council may suspend the work of a public authority by its decisions, and such interference threatens Ukraine’s sovereignty.

The participation of international experts in the Ethics Council was also criticized, as such participation violates the fundamental constitutional principles of state formation, in particular sovereignty, the right of the people of Ukraine to exercise it and the indivisibility of state power. The lack of specific criteria for the nomination and selection of international experts makes the procedure for appointing members of this body ambiguous and non-transparent;

The HCJ also noted that the draft law does not provide for any transition period to address issues related to the change in the legal status of HCJ disciplinary inspectors.

CPLR assessment

First, the HCJ’s conclusion that the participation of the Ethics Council in the selection of HCJ members does not comply with the Constitution clearly does not follow from the provisions of the latter. Part 3 of Article 131 of the Constitution establishes that the procedure for electing (appointing) members of the HCJ is determined by law. That is, the definition of the peculiarities and procedure for forming the HCJ is related to the legislative level and due to the absence of any prohibitions or restrictions in the Constitution, the introduction of additional stages in the selection of HCJ members is fully consistent with the Constitution.

Second, the HCJ does not substantiate how the verification of the integrity of the current members of the council calls into question the procedure for appointing them to the position (including the position of a judge) or the authority of the subjects of their appointment (election). Integrity is a dynamic category, and a person’s compliance with this criterion may change over time. Moreover, if the existing procedures for the selection of HCJ members are taken into account, they do not in fact provide for an assessment of the integrity of the candidates or such an assessment is purely nominal.

Third, the HCJ’s justification of its position on the impossibility of verifying the integrity of current HCJ members by the decision of the Constitutional Court of 11.03.2020 №4-r/2020 is based on a selective approach to the interpretation of the decision. The Ethics Council is not identical in its powers, method of formation and legal status to the Commission on Integrity and Ethics, the provisions of which have been declared unconstitutional. For example, the Commission on Integrity and Ethics was established under the HCJ, which became one of the arguments for declaring it unconstitutional. Instead, the draft law provides for the independence of the Ethics Council from the HCJ.

In addition, the HCJ erroneously  concludes that the subjects of dismissal of a HCJ member are the subjects of his/her election (appointment), although in this decision the Constitutional Court explicitly stated that such a conclusion is not based on the provisions of the Constitution.

As stated by the CPLR experts analyzing the decision of the Constitutional Court, the decision does not contain any arguments that the very idea of ​​the commission is incompatible with the Constitution.

Fourth, the HCJ’s arguments regarding the inadmissibility of participation in the work of the Ethics Council of experts delegated by international organizations, as this is allegedly an interference in state sovereignty, are incapable, as: a) Ukrainian citizens may also be delegated; b) the final decision on the appointment (election)/dismissal of a HCJ member will be made by the national authority; c) at this stage of development, such participation will promote confidence in the selection procedure of HCJ members and its results on the part of both Ukrainian society and international partners (this was also noted by the Venice Commission in its opinion on the Law No. 193-IX).

CPLR experts are of the opinion that by approving the advisory opinion on the draft law No. 5068, the HCJ acted in a conflict of interest, as the provisions of the draft law will directly affect the council members themselves. This becomes obvious even from the biased assessment of the draft law, as, for example, the HCJ quoted the Venice Commission’s opinion on Romania, but for some reason decided not to mention the relevant opinions of the Venice Commission on Ukraine, in particular No. CDL-AD(2019)027, with a positive assessment of the involvement of international experts in renewal procedures, including the HCJ, and №CDL-AD(2020)022, in which the Commission and the Directorate-General for Human Rights and the Rule of Law of the Council of Europe stressed the need to address the integrity of HCJ members without delay, for which a joint body could be set up with international experts to assess integrity of the current and future members of the HCJ.

The HCJ’s position is based on an overly broad interpretation of its own legal status, a selective approach to quoting international standards and the Venice Commission’s positions, and unfounded allegations of interference with the independence of the judiciary, without specifying what such interference is. This position once again showed that the HCJ should be completely removed from the procedure of forming the Ethics Council, as there is a high risk of further sabotage of the implementation of legislative changes.

Draft law No. 5068 is not ideal and needs significant refinement,  especially in terms of ensuring the effective role of international experts in the work of the Ethics Council. However, it is a step in the right direction – the establishment of standards of integrity in the activities of the HCJ, and this is what the HCJ resists for the third year.



The Ministry of Finance criticized the activities of the State Judicial Administration on the distribution of budget funds to the courts


Event

On February 24, the Ministry of Finance published on its official website an informational message concerning the efficiency and fairness of the distribution of budget funds by their principal administrators. At the same time, as an example of inefficient allocation of budget funds, Deputy Minister of Finance R. Yermolychev refers to the activities of the State Judicial Administration (hereinafter – SJA) on the allocation of budget resources between courts in 2021, according to which: “some court employees receive just fixed salaries and others have significant allowances and bonuses”. According to the report, in some local courts the salaries of employees are up to UAH 30,000, while in other local courts even the mandatory components of employees’ salaries are not provided.

CPLR assessment

For another year in a row, there is a problem with the financing of the judiciary. In 2020, the lack of funds even led to the fact that some courts ran out of funds for paper and sending mail. 2021 was no exception, and since the beginning of the year there have been reports of a critical situation with the financing of courts and the payment of salaries to court staff.

However, according to the study of the CPLR experts, the problem of underfunding the judiciary lies not only in the lack of funds in the state budget requested by administrators, but also in the efficiency and rationality of allocated expenditures. For example, in 2019 alone and in 10 months of 2020, more than UAH 600 million was spent on the maintenance of courts and judges who do not administer justice and UAH 6.7 million was spent on the purchase of goods and services that were obviously unnecessary in conditions of limited funding (for example, the purchase by the SJA of services for the development of information strategy in 2019 for the amount of UAH 570 thousand).

Importance of the problem of inefficiency of budget expenditures on the judiciary is mentioned in the draft Anti-Corruption Strategy for 2020-2024, which proposes to introduce regulations for transparent planning and allocation of budget resources in the judiciary on the basis of objective and clearly defined criteria, to conduct an audit of the SJA activity, in particular, on financial and economic support of courts and judicial authorities, management of state property belonging to the sphere of its management. Implementation of these measures will allow solving the problem voiced by the Ministry of Finance, and conducting an in-depth audit of the judiciary will determine the real need for funding in order to ensure access to justice.



Competitions for the civil service have been resumed, Article 87 has been killed! But…


Event

On February 16, 2021, the Verkhovna Rada of Ukraine adopted the Law (draft law No. 4531), which contains a number of significant changes in the legal regulation of the civil service. In particular, it resumes competitions for civil service positions, appointment to which was made under contract conditions for the period of quarantine caused by the coronavirus pandemic. The infamous Article 871 of the Law of Ukraine “On Civil Service” was removed, which determined additional grounds for termination of civil service of category “A” officials at the initiative of the subject of appointment, and in fact gave the right to unjustified dismissal. The number of candidates for civil service positions submitted for consideration to the subject of appointment by the Commission on Senior Civil Service is reduced from 5 to 3.

In addition, the Law contained rules that should limit the powers of the acting Minister, especially if the post of Minister is vacant for more than 60 days. Also, this Law was to prohibit the assignment of the duties of the minister to a person whose candidacy for the post of the relevant minister was rejected by the parliament of the current convocation.

However, on February 18, the President of Ukraine exercised his veto right and did not sign the Law. He did not agree with the restrictions on the powers of the acting Minister, which were introduced into the Law of Ukraine “On Central Executive Bodies”.

The President of Ukraine believes that the Verkhovna Rada effectively removes itself from the exercise of its constitutional powers by appointing members of the Government at the request of the Prime Minister of Ukraine, allowing the First Deputy Minister and Deputy Ministers to exercise only certain ministerial powers. This, they say, will inevitably lead to paralysis of the relevant body in the formation and implementation of public policy in a particular area. And the approach proposed by the Law “violates the constitutional principles of formation and functioning of state power.”

The proposals of the President of Ukraine were supported by the Verkhovna Rada, and on February 23 the Law was re-adopted with the removal of the provisions on the temporary performance of the Minister’s duties in accordance with the proposals of the President of Ukraine.

CPLR assessment

CPLR experts are of the opinion that the amendments made by the Law to the Law of Ukraine “On Civil Service” are long-awaited and correct its deterioration, made in September 2019 by the “mono-majority” of the newly elected Verkhovna Rada.

As for the position of the President of Ukraine regarding the powers of Acting ministers, in his proposals, he transfers the problem from a sick head to a healthy one, as they say. According to the Constitution of Ukraine, it is not the President who decides who should be ministers, but the Prime Minister who finds and nominates a candidate, and then the Verkhovna Rada decides whether to appoint him/her as a minister or not. If a person is not appointed, the Prime Minister must nominate another candidate instead of appointing the same person to act as Minister by decision of the Government. This practice of the Government, headed by Denys Shmyhal, and in fact formed by President Volodymyr Zelensky, is a gross violation of the Constitution of Ukraine.

The Main Scientific and Expert Department of the Verkhovna Rada also draws attention to this fact, pointing out that taking into account the President’s proposals will facilitate the appointment of those who are not supported by Parliament as acting Ministers. Moreover, they would also have all the powers of a minister. Conditions are being created for de facto ignoring the constitutional authority of the Verkhovna Rada to appoint members of the Cabinet of Ministers. Respective amendments contained in this Law did not give the Parliament the opportunity not to consider the candidacies for the post of Minister. However, the Constitution of Ukraine does not oblige the Parliament to appoint any proposed candidate for the post of Minister.

Voting for the Law with the President’s proposals helped to bring key provisions of the civil service legislation to normal. However, the position of the President of Ukraine testifies to his attempt to retain unconstitutional influence on the appointment of ministers, while neglecting the exhaustive list of powers defined for the President of Ukraine by the Basic Law of the state – the Constitution. The result of such a policy will be the inefficiency of the Government, the lack of support of its legislative initiatives by the Parliament, which means a further decline in the pace of reforms and the inability to initiate new ones.