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Weekly analytics for 24 – 30 November 2020

30.11.2020

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. 

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High Council of Justice submitted a motion to appoint judges, ignoring the findings of the Public Council of Integrity


Event

On November 27, the High Council of Justice (HCJ) submitted a motion with the President to appoint eight judges for an indefinite term, who had previously been appointed for 5 years and whose term of office had expired. In relation to all these judges, the Public Council of Integrity (PCI) approved the conclusions on their non-compliance with the criteria of integrity and professional ethics within the framework of the qualification assessment procedure.

The Boards of the High Qualification Commission of Judges of Ukraine (HQCJ) acknowledged that these judges corresponded to their positions, but the relevant decisions did not enter into force as they were not considered by the plenary composition of the HQCJ, as required by law.

CPLR assessment

Prior to the constitutional changes to justice introduced in 2016, judges were appointed by the President for the first time for a term of 5 years, with the possibility of their further election for an indefinite term by Parliament. However, the amendments provided for the immediate appointment by the President to the post of judge.

Transitional provisions of the Constitution stipulate that all judges, both those appointed for 5 years and those elected for an indefinite term, must be assessed for compliance with the criteria of competence, integrity and professional ethics. According to Article 88 of the Law “On the Judiciary and the Status of Judges”, if within the framework of the qualification assessment the Public Council of Integrity concluded that the judge did not meet the criteria of integrity and professional ethics, than the High Qualification Commission of Judges (HQCJ) could adopt a decision on his/her ability to administer justice at least by 11 votes of its members. That is, the decision of the plenary panel of the HQCJ should certify the successful passing of the assessment by such judges.

In November 2019, the Law No. 193-ІХ terminated the powers of the entire HQCJ ahead of schedule.

In June 2020, the Law No.679-ІХ came into force, paragraph 3, part 2 of Section II of which allowed the HCJ in the absence of the authorized composition of the HQCJ, without appropriate recommendations, to submit to the President a nomination for the post of a “five-year judge”, if prior to the entry into force of this Law, the panel of the HQCJ recognized the judge as corresponding to the position held.

With regard to these judges, the panel of the HQCJ decided on their correspondence to the position, but these decisions did not enter into force. They state that they enter into force in accordance with clause 3, subparagraph 4.10.5 of paragraph 4.10 of Section IV of the Rules of Procedure of the HQCJ, which stipulates that the decision to confirm the judge’s ability to administer justice in the relevant court takes effect from the date of this decision, if it is supported by at least eleven members of the Commission.

That is, the HCJ filed a motion to appoint a judge in the absence of legally defined grounds. By such actions, the HCJ grossly violated the procedure for appointing judges and illegally filed a motion to appoint judges in respect of whom the qualification assessment procedure had not been completed. This led to the complete disregard of the HCJ’s conclusions.

Appointment of these judges in violation of the procedure prescribed by law may call into question the legitimacy of their decisions and lead to the establishment by the European Court of Human Rights of a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (in terms of violation of the right to a trial by a court established by law). Therefore, the President should return such motions of the HCJ without consideration to ensure compliance with the Constitution.



NABU has published the data that may indicate the involvement of individual members of the HCJ in the closure of disciplinary proceedings for bribery


Event

On November 27, the National Anti-Corruption Bureau of Ukraine (hereinafter – NABU) published data “on the systemic illegal influence of the HCJ on the pre-trial investigation into the cases of the ex-Minister of Ecology”. Thus, according to the investigative body, in 2019 NABU appealed to the HCJ with a disciplinary complaint against the actions of the investigating judge of the Solomyansky District Court of Kyiv, which by its decision obliged to close the investigation into illegal actions of officials of the Ministry of Ecology and Natural Resources when issuing special permits for subsoil use. According to the published information, the judge probably received $ 150,000 for such a decision.

According to the report, the investigating judge turned to lawyers for help in resolving the situation with the NABU disciplinary complaint against her actions. To do this, certain persons in the HCJ were transferred an illegal benefit of $ 50,000, of which $ 20,000 were transferred by lawyers and $ 30,000 – by the judge herself. After that, the disciplinary proceedings against the judge were closed.

In the evening of the same day, November 27, the HCJ published a response rejecting NABU’s allegations, and in turn considered NABU’s disclosure of this information as an attempt to interfere in its activities.

On November 30, judges of the High Anti-Corruption Court V. Maslov, I. Strohy, and L. Fedorak addressed the Chairman of the HCJ and the Prosecutor General with a report on interference in the activities of judges in the administration of justice by a member of the HCJ. Thus, according to the judges, one of the HCJ members appealed to the court to request copies of the court case, the consideration of which has not been completed. This contradicts the provisions of part three of Article 48 of the Law of Ukraine “On the Judiciary and the Status of Judges”, which stipulate that a judge is not obliged to provide explanations on the nature of the cases under his/her consideration. The panel of judges of the HAC also drew attention to the fact that the actions of a member of the HCJ have signs of a conflict of interest, as he is considering a complaint of the National Bar Association of Ukraine (NBAU), a member of which is the mentioned member of the HCJ.

Earlier, the NBAU website reported on the decision to appeal to the HCJ with a complaint against the actions of these judges of the HAC, who allegedly violate the right of lawyers to defense.

CPLR assessment

It is not the first time that NABU reports facts that indicate HCJ decisions made under the influence of third parties (see analysis for September 22-28, 2020).

Such influence may also be evidenced by the circumstances reported by the HAC judges. The Law “On the High Council of Justice” prohibits the HCJ members from requesting the materials of court cases that have not been completed. Copies of court materials can be requested only in the case of filing a disciplinary complaint about the delay of the trial. However, a comparison of information from different sources indicates that the disciplinary complaint was filed on other grounds.

In fact, the HAC judges’ report alleges that a member of the HCJ, who is closely associated with NBAU, which is the complainant in the disciplinary case, has exceeded his authority.

These events are another confirmation of the need to clean up the HCJ by checking its members for integrity, as the activities of its members contribute to the expansion of corrupt practices in the judicial system of Ukraine.



Inevitability of punishment for false declaration


Event

On Friday, November 27, late in the evening, a meeting of the National Council on Anti-Corruption Policy ended, which was attended by government officials, NABU and NAPC leaders. Participants of the meeting were looking for a quick way out of the constitutional crisis.

President Zelensky stated, in particular: “This crisis has already led to very serious consequences. After this decision, it took a lot of effort for us not to lose the support of our international partners, including the IMF, the World Bank and other investors. Those who lied in the declarations for 2017, 2018 and 2019 will no longer be punished. Work on preventing corruption remains at a standstill today.”

In order to overcome the crisis, it was decided to take three steps, namely:

1) Restoration of criminal liability for intentional failure to submit a declaration or providing false information in declarations. According to Volodymyr Zelensky, criminal liability for this should be severe enough.

2) Restoration of the NAPC’s powers to monitor electronic declarations and resolve the issue of judges’ declarations.

3) Settlement of the issue of NABU formation and ensuring the guarantee of its director’s activity (on November 27, the Verkhovna Rada registered the draft law No. 4437).

CPLR assessment

Regarding the draft law No. 4437, since it is aimed at eliminating contradictions between the Constitution of Ukraine and the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”, ensuring guarantees of independence of the National Bureau and stability of its functioning, it should be supported. However, in relation to the part of this draft law that provides for the powers of the Verkhovna Rada to dismiss the Director of NABU, the provisions of the draft law do not follow from the Constitution of Ukraine, which raises questions about their unconstitutionality.

Regarding the restoration of the NAPC’s powers to monitor electronic declarations and regulation of the issue of judges’ declarations, this step of the authorities can be assessed only after the relevant draft law is submitted to the Verkhovna Rada.

Finally, with regard to the Presidential draft law No. 4434 on criminal liability for incorrect declaration, it not only renews but also somewhat strengthens such liability (it is an increase in the amount of the fine).

However, on the other hand, this draft law does not solve the main problem – the inevitability of liability, as the crimes under Articles 366-2 and 366-3 of the Criminal Code of Ukraine are defined as crimes of minor gravity.

This means that despite the President’s words that “no one will be bailed”, the current Articles 45, 47 and 48 of the Criminal Code allow, in the case of these crimes, to bail a person and release him/her from liability in connection with “effective repentance” or “change of circumstances”, as was the case in all previous years. In this case, these grounds for exemption from criminal liability are applied arbitrarily, for example, for the presence of “effective repentance” in the case of Art. 366-1 of the Criminal Code, it was enough just to admit one’s guilt.

Therefore, it is necessary to exclude from the Criminal Code Articles 45, 47 and 48, as well as Article 46. The CPC of Ukraine has quite adequate alternative to the provisions of these articles – the provisions on plea agreements and agreements with the victim. Criminal liability must be inevitable in all cases where a criminal offense has been committed, except for the expiry of the limitation period.

Providing for both criminal liability and at the same time the release of a person from liability without condemnation by the state and without the slightest losses for a person, the legislator practically pushes prosecutors and judges to enter into informal, often corrupt, agreements with suspects.