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Weekly analytics for 24 – 30 May 2022

06.06.2022

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.

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. 7413 Proposes Suspending Financing of Political Parties’ Activities Through the End of 2022


Event

On May 26, a draft law No. 7413 amending the Law of Ukraine No. 1928-IX “On the State Budget of Ukraine for 2022” of December 2, 2021 was registered in the Verkhovna Rada.

Paragraph 11 of this draft law provides that starting from the second quarter of 2022, as an exception to the provisions of Articles 17-2 and 17-5 of the Law of Ukraine No. 2365-III “On Political Parties in Ukraine” of April 5, 2001, the state budget expenditures under the budget program “Financing the political parties statutory activities” (code 6331020) will not be carried out.

CPLR’s assessment

Draft law No. 7413 essentially proposes to stop financing the statutory activities of political parties envisioned by the Law “On Political Parties in Ukraine” from the second until the fourth quarter of 2022.

Providing material and financial support to political parties in the form of state financing of political parties’ statutory activities was envisioned by the Law “On Political Parties in Ukraine” as part of reforms to prevent and combat political corruption (see Law No. 731-VIII of October 8, 2015), which was a necessary condition for granting Ukraine a visa-free regime with the EU.

According to the current version of Article 17-3 of the Law “On Political Parties in Ukraine”, a political party has the right to receive state financing for its statutory activities if its electoral list of Parliament candidates in the nationwide multi-mandate electoral district received at least 5 percent of the votes from the total number of votes submitted in the last regular or extraordinary PMs elections for all electoral lists of Parliament candidates in the nationwide multi-mandate electoral district.

Paragraph 11 of draft law No. 7413 not only jeopardizes Ukraine’s foreign policy commitments, but also creates corruption risks in the area of political financing of political parties that have received public funding. Furthermore, Verkhovna Rada never repealed paragraph 5 of Section VI of the Final Provisions of the Law “On Political Parties in Ukraine”, which postponed the filing of quarterly reports by political parties during the quarantine period. As such, political parties have not been submitting quarterly reports on property, income, expenses, and financial obligations for over two years (see statement by CSOs in this regard).

Paragraph 11 of the draft law No. 7413 has appearance of being unconstitutional, as the Constitutional Court, in its decision № 10-рп/2008 of May 28, 2008 (In re: The subject and content of the law on the State Budget of Ukraine), noted that the law on the State Budget cannot be used to amend, suspend, or repeal other laws. This is because this objectively creates conflicts in the law, resulting in the elimination and restriction of human and citizens’ rights and freedoms. Thus, if necessary, separate laws must be used to suspend or amend other laws or declare them invalid. The CPLR’s experts believe that the same approaches should be applied regarding laws amending the State Budget.

 

In this regard, the CPLR’s experts consider it necessary to remove paragraph 11 of the draft law No. 7413 and, therefore, not to stop financing the political parties’ statutory activities in accordance with the Law “On Political Parties in Ukraine” from the second through the fourth quarter of 2022.


Draft Law No. 7339 on Specifics of Acquiring and Losing the Citizenship of Ukraine by Certain Categories of Persons Registered in Parliament


Event

On May 2, a draft law amending the Law of Ukraine “On Citizenship of Ukraine” on the specifics of acquiring and losing the citizenship of Ukraine by certain categories of persons (Reg. No. 7339) was registered the Verkhovna Rada. The draft law proposes amending the Law “On Citizenship of Ukraine” to address the acquisition and loss of the citizenship of Ukraine by certain categories of persons in connection with the armed aggression by the Russian Federation against Ukraine.

CPLR’s assessment

Despite the fact that the purpose of this draft law is extremely relevant in the context of the ongoing armed aggression by the Russian Federation against Ukraine, a number of provisions of this draft law contain substantial conceptual constitutional flaws, in particular:

    1. The draft law attempts to essentially create grounds for the deprivation of Ukrainian citizenship, which is prohibited by the Constitution of Ukraine (section 1 of Article 25), in the form “citizenship loss” institution. Furthermore, provisions of the proposed version of section 2 of Article 19 of the Law “On Citizenship of Ukraine” are inconsistent with the content of paragraph 2 of section 1 of Article 2 of the Law “On Citizenship of Ukraine”, according to which the Ukrainian legislation is based on Ukraine’s international legal obligations (in particular, the European Convention on Nationality).
    2. The draft law provides that: a person, as well as his/her close relatives (husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister), who has committed actions defined in paragraphs 2-6 of section 1 of Article 6-1 of the Law “On Citizenship of Ukraine”, in particular by denying the armed aggression against Ukraine by a state recognized in Ukraine as an aggressor state, or denied the reach of state sovereignty of Ukraine to the temporarily occupied territories of Ukraine, or engaged in glorification of a state that is recognized in Ukraine as an aggressor state or is in an armed conflict (war) with Ukraine shall not acquire the citizenship of Ukraine. This essentially represents an attempt to introduce legal responsibility for a number of actions and extend it to persons who did not commit such actions, contrary to the principle of individual responsibility enshrined in Article 61 of the Constitution of Ukraine.
    3. Provisions of the draft law that stipulate that section 1 of Article 6-1 of the Law of Ukraine “On Citizenship of Ukraine” does not apply to persons who publicly support the territorial integrity and sovereignty of Ukraine, provided that the competent authorities of Ukraine find, in the manner prescribed by the law, that these persons do not pose a threat to the national interests, national security, and protection of public order of Ukraine has defects of legal certainty, as it is unclear which competent authorities and in which manner will establish relevant facts, as well as what should be understood by “threat to the national interests”.
    4. To indicate the grounds for inability of acquiring the Ukrainian citizenship, the draft law introduces terms such as glorification and related actions that are legal uncertain. The draft law does not define this act, nor do any of its provisions not provide for a blanket rule or reference to another act that should contain a definition of this term (for example, the Law of Ukraine “On Political Parties in Ukraine” attempts to define glorification, although this definition obviously does not quite correlate to the provisions of this draft law.

The CPLR’s experts emphasize that the grounds for the loss of the Ukrainian citizenship should be defined by objective factors, follow from the Constitution of Ukraine itself, and cannot be the subject of arbitrary legislation. In particular, the loss of the Ukrainian citizenship can only be the result of one of the following two legal facts:

    1. A citizen of Ukraine has the citizenship of another sovereign state.
    2. Acquisition of the Ukrainian citizenship on the basis of providing false information by the applicant to the Ukrainian authorities.

In light of the above, the CPLR’s experts do not recommend the Verkhovna Rada to adopt the draft law No. 7339 as a basis.


The Ethics Council Conducted Interviews with Candidates to the HCJ for the First Time since the Beginning of the War


Event

On May 27, the Ethics Council conducted interviews with four candidates for the High Council of Justice (HCJ). According to the Ethics Council’s decision, interviews were not being broadcast, which was based on the martial law in Ukraine and the need to ensure the safety of those participating in the assessment, members of the Ethics Council, and the state’s interests. Video recordings of the interviews should be published after the end of martial law.

CPLR’s assessement

The resumption of interviews with the HCJ candidates, which were suspended due to the war, gives hope that the HCJ’s competency will be restored in the near future. At the same time, conducting interviews behind closed doors undermines the credibility of their results, as the public will only be able to find out after the fact how individual candidates explained the circumstances that cast doubt on their integrity. In particular, CSOs found that there were concerns regarding the integrity of at least 23 out of 29 candidates to the HCJ. Moreover, such concerns exist with regards to the integrity of three out of of four candidates interviewed by the Ethics Council on May 27.

In this regard, on May 30, the All-Ukrainian Civic Association “Automaidan”, DEJURE Foundation, Anti-Corruption Action Centre, and CPLR issued a public statement, which noted that the Ethics Council’s decision regarding closed-door interviews do not take into consideration the public interest and could bring into doubt transparency and confidence in the results of the judicial reform. This is why the CSOs called upon the Ethics Council to recommend to the HCJ only those candidates with an impeccable reputation, ensuring that the public will have no doubts about the independence and integrity of recommended candidates.

 


What Will Change in Civil Service and Local Self-Government After the May 12 Law?


Event

On May 12, 2022, the Verkhovna Rada adopted the Law “On Amendments to Certain Laws of Ukraine on the Functioning of Civil Service and Local Self-Government during Martial Law” (draft law No. 7269 of April 9, 2022). Almost the entire Law represents amendments to the Law of Ukraine “On the Legal Regime of Martial Law”. The key provisions of the Law are related not only to the issues of civil service and local self-government, but also to the organization and activities of military administrations, as well as the authority of the President and the Verkhovna Rada of Ukraine.

For the duration of martial law, appointments to civil service and positions in local self-government bodies will conducted bypassing competitive selection. The competition will be announced after the termination of martial law, but not later than 6 months from the date of such termination.

Military administrations of communities will be formed within the territories of territorial communities in which village, settlement, and city councils, and/or their executive bodies, and/or village, settlement, and city mayors do not exercise the powers entrusted to them by the Constitution and laws of Ukraine, as well as in other cases provided for by this Law. Respective village, settlement, and city mayors may be appointed as the heads of military administrations of the communities.

The range of powers of the village, settlement, and city mayors of territorial communities where no armed combat is taking place and where military administration of a community was not established has been expanded. In case of violation of the Constitution or the laws of Ukraine by the village, settlement, and city mayors during the exercise of these powers, the head of the regional military administration, in coordination with the General Staff of the Armed Forces of Ukraine, will raise the matter of establishing a military administration of a community before the President of Ukraine.

In case of establishment of a military administration of a community, the Verkhovna Rada may, at the President’s request, decide that for the duration of martial law and 30 days after its termination, the head of the military administration, in addition to the powers granted by this Law, will exercise powers of the village, settlement, and city council, its executive committee, and/or village, settlement, and city mayor.

In case of establishment of regional and/or district military administration for the duration of martial law and 30 days after its termination, in case of temporary occupation or encirclement of the reginal administrative center or in case of adoption by the Verkhovna Rada of Ukraine on the President’s proposal of the relevant decision, the powers of regional and/or district councils will be carried out by the relevant regional and district military administrations; the executive office of such district and regional councils will be subordinated to the head of the relevant military administration.

Additionally, the President of Ukraine may decide, for the duration of martial law, to suspend from office an official whose appointment and dismissal is within his authority. The Verkhovna Rada may likewise decide to suspend from office an official whose appointment and dismissal are within its authority.

CPLR’s assessment

Experts of the CPLR consider the simplification of the rules of employment in civil service and service in local self-government bodies for the duration of martial law to be largely justified. This will allow not to delay the appointments and conduct them on the basis of an application, completed identity card (using a template), and documents confirming the Ukrainian citizenship, education, and work experience in accordance with the law established for the respective positions. At the same time, it is important to ensure the application of simplified rules for the appointment to civil service and the declaration of furlough or transfer to a lower position in local governments (in case of establishing a temporary executive body) are carried out exclusively in the public interest and without abuse. Also, the lack of competition will not allow to fully assess the skills and abilities of the candidate; thus, the informative nature of the interview, which can be conducted via technical means, may be important.

We support the expansion of the authorities of the village, settlement, and city mayors of the territorial community. These powers deal with addressing the urgent issues of the respective territorial community’s livelihood during wartime. The mayors will be able to make decisions rapidly.

We also support the provisions on the possibility of establishment of the communities’ military administrations within the territories of communities, as well as the appointment of the head of the military administration of the community as the village, settlement, and city mayors.

However, there are questions regarding empowering the President of Ukraine with the authority to “suspend” from office, since according to the Constitution of Ukraine, he has the power to appoint and remove from the relevant office.

Also, in our opinion, the public service provisions should contain more flexibility in terms of using part-time employment mechanisms (in order to retain more staff in the event of a budget deficit), transfers, and long-term secondment (in particular, to ensure the implementation of public functions in high-risk territories).