What are you interested in?

Weekly analytics for 27 October – 2 November 2020

02.11.2020

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. 

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 laws No. 4292 and No. 4293, aimed at the implementation of the decision of the Constitutional Court No. 13-r/2020 cannot be supported


Event

On October 27, 2020, the Constitutional Court of Ukraine adopted a decision No.13-r/2020, according to which the National Agency for the Prevention of Corruption (NAPC) lost part of its powers.

The CCU’s decision caused a political crisis and the destruction of many achievements of the anti-corruption reform that began in 2014. In terms of monitoring the way of life and declarations of the subjects covered by the Law “On Prevention of Corruption”, Ukrainian legislation has moved beyond anti-corruption reform – back in the 90s of the last century, during the Law “On Combating Corruption”, which established the obligation to declare property, income, expenses and financial obligations by public servants, but the procedure for processing, storing and using information from declarations was regulated by the Cabinet of Ministers of Ukraine and publishing any information from declarations of officials was not even considered.

Such a step by the CCU, regardless of the reasons that caused it, led to an ambiguous reaction within Ukrainian society and international partners. This was evidenced, in particular, by the protest action in front of the CCU building on Friday, October 30, the European Union’s concern about the CCU decision and the call for urgent measures to overcome the crisis.

In this situation, on October 27, people’s deputies Y. Tymoshenko, S. Vlasenko and O. Savchuk submitted to the Verkhovna Rada the draft laws No.4292 “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” regarding the Monitoring the Lifestyle of Judges and Bringing Its Norms in accordance with the decision of the Constitutional Court of Ukraine No. 13-r/2020″, and No. 4293 “On Amendments to the Law of Ukraine “On Prevention of Corruption” to bring its provisions in line with the decision of the Constitutional Court of Ukraine №13-r/2020 and to regulate the activities of the National Agency for the Prevention of Corruption”.

The draft law No. 4292 proposes to include requirements for declaring and monitoring the lifestyle of judges in a special law, similar to the requirements of the Law “On Prevention of Corruption” to the subjects covered by this Law. At the same time, the functions of the holder of electronic declarations and the responsibility for monitoring the lifestyle of judges, checking their declarations on the timeliness of submission and declaration of reliable information are entrusted to HQCJ, and before its operation – to the State Judicial Administration.

Draft Law No. 4293 proposes amendments to the Law “On Prevention of Corruption”, which remove the judiciary from the scope of this Law.

Both draft laws – 4292 and 4293 – provide for the elimination at the legislative level of the NAPC’s powers to verify the judges’ declaration of their property, income, expenses and financial obligations and monitore  judges’ lifestyles and their transfer to the judicial self-government body – the HQCJ.

CPLR assessment

The approach proposed by the authors of the draft laws contradicts Articles 8, 21, 24 of the Constitution regarding the equality of all before the law. Therefore, there can be no exceptions for judges or prosecutors compared to other public servants. The task of anti-corruption reform is to bring all public servants out of the shadows of wealth and lifestyle, regardless of the type and level of position they hold. Protectionism for employees of a particular branch of power nullifies all anti-corruption efforts made by the state and society.

In addition, on the side of the norms that were in force at the time of the CCU’s decision No.13-r/2020, the Law “On Access to Public Information”. Part 5 of Article 6 of this Law prohibits restricting access to information on possession, use or disposal of state or communal property, including copies of relevant documents, conditions of receipt of these funds or property, surnames, names, patronymics of individuals and names of legal entities, who received these funds or property. At the same time, according to part 6 of the same article, the information specified in the declaration of the person authorized to carry out functions of the state or local government is not the information with limited access. Restriction of access to information from the declaration is possible only on the basis of the Law, and the information holder is obliged to conduct a three-part test to justify the predominance of harm from the disclosure of information over its public necessity. These provisions were checked for their constitutionality, and the CCU in its decision № 2-rp/2012 of January 20, 2012 concluded: “In terms of the constitutional presentation, the provisions of parts one, two of Article 32, parts two and three of Article 34 of the Constitution of Ukraine should be interpreted as follows: information about a person’s personal and family life is any information and/or data about non-property and property relations, circumstances, events, relations, etc., related to a person and his/her family members, except for information provided by law, which concerns the exercise by a person holding a position related to the performance of functions of the state or local self-government bodies of his/her official or service powers”.

It is obvious that draft laws No. 4292 and No. 4293 will not be able to solve the crisis of anti-corruption reform, but will only consolidate the division of state power, protectionism in relation to judges and eliminate the system of balances and counterbalances in state power, as well as the principle of accountability of the state power. The decision of the CCU №13-r/2020 was made in the conditions of real (for some judges of the CCU) and potential conflict of interests, so to overcome its negative political and social consequences, prudent steps should be taken. The international practice of declaration demonstrates that granting the authority to control compliance with the legislation on monitoring the lifestyle of public servants and declaring their income and expenditures to only one authority, and not to individual bodies within each branch of power, is justified and appropriate. Therefore, measures should be taken to return to the NAPC the functions set forth in the Law “On Prevention of Corruption”, which was in force as of October 27, 2020.



President considered a petition to liquidate the District Administrative Court of Kyiv


Event

On October 26, an electronic petition for the liquidation of the District Administrative Court of Kyiv (DACK) received more than 25,000 votes (see the weekly analysis of October 20-26, 2020). On October 28, the President responded to it and instructed to begin consultations with the High Council of Justice (HCJ) “to develop a transparent and fair procedure that would resolve the issue of the District Administrative Court of Kyiv and relieve some public tension over the situation.”

CPLR assessment

Part 2 of Article 125 of the Constitution stipulates that the reorganization or liquidation of a court may be carried out only by law, the draft of which must be submitted by the President after consultations with the High Council of Justice. That is, from a legal point of view, the President’s actions in response to the petition to liquidate the DACK are in accordance with the Constitution. Currently, there are legally defined grounds for adopting legislative decisions in relation to this court.

The provisions of the Constitution oblige the President only to hold consultations, but the HCJ’s position in these consultations is not obligatory when drafting, submitting and considering the relevant draft law by the Parliament. The results of the consultations should be assessed given that the HCJ played a key role in securing judges of the DACK from prosecution, and records of the National Anti-Corruption Bureau (NABU) from the office of the Chairman of the District Administrative Court in Kyiv indicate that HCJ members made decisions under external influence. Thus, the HCJ condemned NABU’s actions to publish “Vovk’s records” (wiretapping in the office of the DACK Chairman, which led to a corruption scandal around the court) and demanded that the Prosecutor General’s Office assess the legality of detectives’ summonses for questioning of the HCJ members themselves. It then refused to remove the suspected DACK judges from administering justice, and then the HCJ press office condemned the appeal of the Plenum of the Supreme Court, in which the court took the position that the content of “Vovk’s records” caused significant damage to the judiciary. That is, the HCJ systematically defended the suspected judges of the DACK.

It should also be reminded that the need to ensure integrity in the activities of this HCJ is one of Ukraine’s international obligations in the field of judicial reform.

In view of the above, the position of the HCJ should be carefully assessed during the consultations on the liquidation of the DACK, given the significant doubts about the impartiality of the HCJ members on this issue.



Constitutional Court declared that key institutions of the anti-corruption law and criminal liability for knowingly incorrect declaration are unconstitutional. What's next?


Event

On October 27, the Constitutional Court of Ukraine (CCU) adopted and the following day promulgated the decision No. 13-r/2020 in the case on the constitutional petition of 47 people’s deputies on certain provisions of the Law On Prevention of Corruption and Article 366-1 of the Criminal Code.

The Constitutional Court declared unconstitutional the following provisions:

  •  monitoring and control by the National Agency for the Prevention of Corruption (NAPC) of the implementation of legislation on ethical conduct, prevention and settlement of conflicts of interest, control and verification of declarations of declarants, storage and publication of such declarations, monitoring the lifestyle of declarants;
  •  the right of the NAPC to obtain the necessary information, to have access to registers, to monitor compliance with anti-corruption legislation, to appeal to the court on the illegality of acts violating anti-corruption requirements, and protocols on administrative offenses related to corruption; to make instructions on elimination of violations of the legislation, to carry out official investigation, bringing of the guilty person to the responsibility established by the law;
  •  state registration of the NAPC regulations in the Ministry of Justice of Ukraine and the procedure for promulgation and entry into force of the NAPC acts;
  •  the rights of the authorized persons of the National Agency and the tasks of the authorized units (authorized persons) on the issues of prevention and detection of corruption;
  •  settlement of conflicts of interest in the activities of officials of the collegial body;
  •  openness of the Unified State Register of Declarations of Persons Authorized to Perform the Functions of the State or Local Self-Government;
  •  control and verification of such declarations by the NAPC, including full verification;
  •  procedure for establishing the timeliness of submission of declarations;
  •  monitoring the lifestyle of the subjects of the declaration;
  •  obligation to notify of a significant change in the property status of the declarant;
  •  liability for corruption or corruption-related offenses;
  •  criminal liability for the submission of knowingly incorrect information in the declaration of a person authorized to perform the functions of state or local self-government, or intentional failure of the declarant to submit the said declaration.

In the motivating part of the decision, the CCU concluded that the provisions of the Law on Prevention of Corruption “concerning the powers of the National Agency for Prevention of Corruption in terms of control functions (control) of the executive power over the judicial power” are unconstitutional. Although in the resolution part of the decision it recognized that these provisions as unconstitutional in general. In other words, it deprived the NAPC of the relevant powers and rights in relation to all subjects, not only judges.

With a view to declare the provisions of the Law on Prevention of Corruption unconstitutional, the CCU referred to the constitutional principles of separation of state power and independence of the judiciary, judges and judges of the CCU and the inadmissibility of interference in their activities. The CCU believes that “the main way of ensuring the independence of the judiciary is the creation of special institutions, the purpose of which is to remove the judicial bodies from the scope of administrative control and effective management of executive and legislative bodies”, “it is necessary to ensure different declaration rules, in particular, higher judicial authorities are entitled to require special acts regulating this issue, and judges’ declarations may be handled by a special judicial body,” while the NAPC is an executive body.

The CCU justified the recognition of the unconstitutionality of the relevant article of the Criminal Code by the fact of violation of the rule of law principle, because the article contains a reference to another law, which is allegedly unclear, and because “criminal liability for declaring knowingly incorrect information in the declaration as well as intentional non-submission of declaration by a declarant is an excessive punishment for committing these offenses.”

Reaction of state bodies

On the day of the CCU’s decision, the President of Ukraine assured that he would “use his right of legislative initiative to restore the sustainable and most effective operation of the electronic declaration system and the inevitability of liability for intentional violations of these rules.”

On October 28, the day the CCU’s decision was promulgated, the NAPC Chairman announced that some CCU judges had participated in the adoption of this decision having a conflict of interest, as they were subject to institutions questioned in the constitutional petition and considered the case behind closed doors, despite the participants’ insistence to hold an oral hearing. Following the promulgation of the decision of the CCU, the NAPC suspended open round-the-clock access to the Unified State Register of Declarations of Persons Authorized to Perform Functions of the State or Local Self-Government.

The next day, the NAPC reported that the CCU had deprived the NAPC of the access to the state registers required for a special verification of declarations of candidates for management positions in state bodies. Without this verification, no head of state body can be appointed. Similarly, the appointment of candidates elected to certain positions, in particular the chairmen of oblast and rayon councils and their deputies, is possible only after they have passed special inspections.

The Minister of Justice of Ukraine said that the authorities and the expert community will soon develop a draft law that would limit (or eliminate at all) the influence of the NAPC on judges, presumably “judges will receive their own mechanism for controlling wealth and expenses, which will be no worse than the one of the NAPC”, the effect of anti-corruption legislation will be restored; declaring incorrect information (or non-declaration) will have to be punished through administrative liability. Later on he stated that “a political solution to the problem [also] has a right to exist”, referring to the legislative initiative of the President of Ukraine (see below).

National Anti-Corruption Bureau of Ukraine (NABU) assessed this decision as “political”. In this way, the CCU “not only legitimizes the intentions of politicians and officials to hide illegally acquired wealth from society, but also protects the interests of individual CCU judges, whose inaccurate declarations are investigated in criminal proceedings.” As of October 27, NABU was conducting 110 criminal proceedings, in which detectives were investigating about 180 facts of intentional entry of inaccurate information by officials into their declarations. 34 cases were sent to court. There are court decisions against 13 people, including 6 sentences. Due to the decision of the CCU, all these cases must be closed. It should also be understood that such cases are not limited to NABU proceedings.

On October 29, an urgent meeting of the National Security and Defense Council (NSDC) was held, at which it was decided to oblige the Government to take measures to maintain the Unified State Register of Declarations of Persons Authorized to Perform Functions of the State or Local Self-Government and to resolve the issue of the NAPC’s access to state registers. The President of Ukraine was recommended to submit to the parliament an urgent draft law on “restoration of the integrity of the constitutional judiciary in the interests of the people of Ukraine.” The Legal Reform Commission was also recommended to intensify the preparation of proposals for judicial reform.

On the same day, on the basis of the resolution of the Cabinet of Ministers of Ukraine, the NAPC restored open access to the register of electronic declarations.

In pursuance of the decision of the NSDC, the President of Ukraine submitted to the Parliament a draft law “On Restoration of Public Confidence in the Constitutional Judiciary” and defined it as urgent. The draft envisages annulment of the decision of the CCU, restoration of the provisions of the Law of Ukraine “On Prevention of Corruption” and the Criminal Code, which were declared unconstitutional, as well as early termination of the powers of the entire CCU.

CPLR assessment

Abnormality of the CCU decision

Decision of the CCU differs significantly from its usual practice because:

1) The CCU went beyond the requirements of the constitutional petition: the current Law “On the Constitutional Court of Ukraine” of 2017 does not provide for the CCU’s right to declare unconstitutional provisions of laws or other legal acts if such unconstitutionality is revealed during consideration of the constitutional petition in relation to other provisions.  This right of the CCU was contained in the previous law. Since the adoption of the new law, the CCU has not gone beyond the constitutional petition. On the other hand, in this case, among the provisions of the Law on Prevention of Corruption, which were declared unconstitutional by the CCU, approximately 3/4 of the provisions were not challenged at all. Moreover, the CCU’s arguments are in no way related to the arguments of the subject of the constitutional petition, which were not given any assessment;

2) The CCU’s verdict goes beyond its own motivation: unconstitutionality of certain provisions of the Law on Prevention of Corruption is justified only by the inadmissibility, in the CCU’s view, of exercising by the NAPC of control functions over judges and judges of the CCU. However, key anti-corruption institutions were recognized unconstitutional in total, although the court could invalidate them only in the part concerning judges;

3) the CCU did not substantiate the unconstitutionality of each legislative provision, which it declared unconstitutional, but recognized such unconstitutionality collectively: for example, the CCU declared unconstitutional the provisions of the Law On Prevention of Corruption, which are not related to the CCU arguments referred in the motivation part, in particular regarding the NAPC acts, the obligation of a declarant to report significant changes in property status, openness of the register of declarations, etc. The only exception is Article 366-1 of the Criminal Code, the unconstitutionality of which is sufficiently substantiated, although they may provoke debate.

In such a way, the CCU ignored the requirements of Art. 2 of the Law “On the Constitutional Court of Ukraine” on full and comprehensive consideration of cases, the validity of its decisions.

In this case, the CCU did not postpone the repeal of the relevant provisions, which were declared unconstitutional, and did not give the Verkhovna Rada of Ukraine time to bring these provisions into line with the Constitution of Ukraine, creating serious problems for the implementation of the NAPC’s functions in relation to all subjects covered by the Law “On Prevention of Corruption”, as well as completely canceling the responsibility (at least for past cases) for submitting knowingly incorrect declarations. This is also not typical for such cases and is probably the result of the bias of CCU judges.

It is not correct, although it has happened more than once in the practice of the CCU, to consider the case by CCU judges having a conflict of interest, when the beneficiaries of the decision are the CCU judges themselves – both individual (against whom there are proceedings for violation of anti-corruption legislation) and total population of judges. In the event of a conflict of interest of a CCU judge, he/she had to declare recusal (Article 60 of the Law “On the Constitutional Court of Ukraine”).

The quality of the CCU’s arguments

CPLR is of the opinion that in order to substantiate its decision, the CCU used arguments aimed at destroying the accountability of the judiciary and creating conditions for impunity for judges.

Argument about the weakness of the judiciary

In paragraph 4 of the motivating part of the decision, the CCU noted that “the judiciary, given the nature of its functions, is the least dangerous for democratic governance and other branches of government, as well as for natural human rights defined by the Constitution of Ukraine, as it has the least opportunities for their violation or negative impact on them. After all, the legislative power sets the rules, the executive power uses enforcement, and the judiciary has neither. The judicial power has no military, financial or direct leverage over other branches of government; therefore it is most vulnerable to encroachment by other branches of state power”.

The allegation that there are no direct levers of influence of the judiciary on other branches of state power is refuted by the existence of administrative courts and the Constitutional Court of Ukraine, which control the executive and legislative branches and may abolish decisions of their bodies and even oblige them to take certain actions. The executive power is authorized to use enforcement in most cases on the basis of a court decision, and in all cases enforcement is exercised under judicial control.

Moreover, in the case of the NAPC, the CCU ignored the fact that this body has no authority to bring judges to legal responsibility (disciplinary, administrative, and criminal) as a result of exercising control powers, as this is the prerogative of the judiciary.

The judiciary and judges enjoy the greatest guarantees of independence and protection, including constitutional ones. No one may remove a judge from office or bring him/her to any kind of legal responsibility, except for judicial (judiciary) bodies that are not subordinate to the legislature or the executive branches (except for minor administrative offenses). Judges enjoy immunity. They have the highest salaries compared to other branches of power. It does not make sense to list these guarantees further, because there are many. All this applies equally to the judges of the CCU.

Unfortunately, some courts and the CCU have recently given too many reasons to convince the public of their arbitrary interference in the activities of other branches of power in the interests of others or in their own interests, in actions that reinforce corruption and threaten Ukraine’s state sovereignty. This decision of the CCU is one of such reasons and perhaps the most dangerous.

Argument about the need for parallel control bodies in the judiciary

In paragraphs 6, 8 of the motivating part of the decision the CCU noted that “the main way of ensuring the independence of the judiciary is the creation of special institutions which purpose is to remove the judiciary from the scope of administrative control and effective management of executive and legislative bodies”; “any forms and methods of control in the form of inspections, monitoring, etc. of the functioning and activities of courts and judges should be implemented only by the judicial bodies and exclude the establishment of such bodies in the system of both executive and legislative power.”

This position of the CCU does not correspond to the principle of separation of state power and is not confirmed by the experience of democratic states. This is true that the judiciary may have some autonomy in matters of disciplinary liability. However, it is not possible to create separate tax service, patrol police, customs, NAPC, Accounting Chamber, etc. for courts and judges within the judiciary. These are the functions of the executive power and parliamentary control. Judicial power cannot perform these functions through “special institutions”; otherwise it will become a parallel judicial state within the state.

The CCU’s interpretation of the independence of the judiciary, which consists in its exclusivity and the need to create separate bodies for judges to monitor their compliance with anti-corruption or other legislation, also contradicts one of the basic constitutional principles – equality of all before the law.

Argument about legal uncertainty and inadequacy of criminal liability for knowingly incorrect declaration

Reasoning of the CCU on the unconstitutionality of the article of the Criminal Code on liability for knowingly incorrect declaration has a legal character, but is not convincing enough.

In paragraph 17 of the motivating part of the decision the CCU stated that “(c) by its legal nature, the submission by the declarant of knowingly inaccurate information in the declaration, as well as intentional failure to submit a declaration, although they testify the violation of anti-corruption legislation, but such actions cannot cause significant harm to a natural or legal person, society or the state to the extent necessary to declare them socially dangerous … declaration of knowingly incorrect information in the declaration, as well as intentional failure of the declarant to submit declaration must be grounds for other kinds of legal liability”.

According to Article 92 of the Constitution of Ukraine, only laws define acts that are crimes and responsibility for them. That is, the criminalization or decriminalization of certain acts is a discretion of the legislature power. Of course, this does not mean that such laws cannot be assessed for constitutionality. However, the CCU should refrain from substituting itself for the legislator and interfering in its discretion, unless the legislator commits obvious arbitrariness.

At the same time, criminalizing the deliberate misrepresentation of one’s property state by the subjects of declaring or knowingly ignoring the obligation to file such a declaration is not arbitrary, as such actions contribute to impunity for corruption, which is one of the biggest problems of Ukrainian society. By determining light punishments for such a crime, the legislator allowed the courts to apply proportionate sanctions on the principle of proportionality.

In addition, the CCU stated that “the use of legal constructions, which do not contain a clear list of laws, makes it impossible to unambiguously define the range of subjects of the crime, and reference norms make it impossible to establish the range of their addressees. As a result, persons who cannot be subjects of the declaration and therefore have deliberately failed to file a declaration may be held liable for intentional failure to do so.”

At the same time, the CCU did not explain this conclusion regarding Article 366-1 of the Criminal Code, which is completely unobvious, as, for example, the note to this article clearly defines the subject of the crime: “Subjects of declaration are persons who are obliged to submit a declaration of a person authorized to perform the functions of state or local government in accordance with parts 1 and 2 of Article 45 of the Law “On Prevention of Corruption”. The use of blanket norms is a common normal practice in legislative activity.

The far-reaching consequences of the CCU decision

At present, it is difficult to assess the scale of the consequences of the CCU decision. It has become the strongest response of the corruption system to the anti-corruption measures taken in recent years. We will not assess its geopolitical implications, although they will occur.

The decision of the CCU can have far-reaching negative consequences, in particular:

  •  great threats to the constitutional order, as the key arbiter between branches of power has ceased to be perceived as such (arbitrary decision will give rise to other arbitrary decisions of all authorities, including unconstitutional decisions in response);
  •  long-term discrediting of the body and institution of constitutional control, which will force other branches of power to look for quick ways to reset this body (however, there are no constitutional ways for such a decision);
  •  strengthening judicial impunity and circular guarantee, and thus corruption in the judicial environment (High Council of Justice, courts will be able to use it to reject as evidence information from any state bodies that do not operate in the justice system; any cases of knowingly incorrect declarations will not be punished until the adoption of new laws that will extend such responsibility only to the future);
  •  financial non-transparency and lack of control of the judicial bodies and the CCU;
  •  possible need to create parallel control bodies in the judiciary, and consequently, increasing expenditures that are doubtful to be effective.

In the short term perspective, a significant part of the NAPC’s activities will be blocked.

The positive consequence of this decision is that it has clearly shown the institutions used by the oligarchs, whose enrichment is based on corruption, to protect the system that benefits them, and in fact confirmed the effectiveness of anti-corruption measures and the need for more effective judicial reform.

Necessary steps

It is not possible to prevent all the negative consequences of such a decision of the CCU, but efforts should be made to reduce this negative impact.

We support the decision of the NAPC to restore open access to the declarations of persons authorized to perform the functions of state or local self-government. There are sufficient legal grounds for this step, in particular the Law on Access to Public Information, and this does not contradict the arguments of the CCU.

Provisions of the Law on Prevention of Corruption that have been declared unconstitutional must be immediately restored by a law that will provide for a separate procedure for verifying declarations and monitoring the lifestyle of judges. It is desirable that this procedure be more effective than before. The Code of Administrative Offenses should be supplemented with provisions on liability for knowingly incorrect declaration (non-declaration). This will also be in line with the CCU’s decision.

Before December 11, 2020,  Article 375 of the Criminal Code (adoption of deliberately unjust court decisions) should be set in a new wording with clearer features of the crime. It should be reminded that this article was declared unconstitutional, but it will be repealed by the decision of the Constitutional Court on December 11 this year. This will make it possible to prosecute judges who have made such decisions, as the punishment for such acts has been provided and remains in force. If the relevant law does not enter into force by December 11, then the punishment will be abolished through the fault of parliament. It is also advisable to prosecute for abuse of power, if there is significant damage to human rights, the interests of the state, regardless of the  property damage caused (this requires amendments to Article 364 of the Criminal Code).

The least painful decision for the constitutional order and for the restoration of the authority of constitutional justice will be the voluntary early termination of the powers of judges of the CCU who voted for such a decision, on their own initiative. Before such a step, any cooperation of international partners, civil society organizations with the CCU should be stopped.

At the same time, the termination of the powers of the CCU judges, as well as the annulment of the CCU decision by the parliament, will obviously be an unconstitutional decision. We warn against such decisions, because the domino effect will lead to other unconstitutional decisions in the absence of a constitutional arbitrator.

Future judges of the Constitutional Court must pass a transparent competitive selection with a thorough examination of integrity. Effective participation of international experts in this process must be ensured to guarantee an independent and impartial assessment. Previous political support for candidates for a CCU judge from parliament by factions should be abolished. This requires immediate amendments to the Law on the Constitutional Court of Ukraine and related laws.

Ukraine’s international obligations to strengthen the integrity of the High Council of Justice by verifying the integrity of candidates for this body and its members by an independent commission with the involvement of international experts must be fulfilled. In the same way it is necessary to form a new composition of the High Qualification Commission of Judges.

In further legislative work, not all the arguments of the CCU presented in the decision №13-r/2020, which was adopted in the context of a conflict of interest, can be taken into account (for example, regarding the need to create parallel control bodies). It is clear that this may result in new appeals to the CCU, but if its composition is renewed, it is likely that it will leave this decision. Updating legislation, including constitutional provisions, should lead to accountability of the judiciary and the CCU, along with their independence.

The removal of judges, unlike other citizens, from the competence area of law enforcement agencies would be contrary to the provisions of Articles 8, 21, 24 and 68 of the Constitution of Ukraine, according to which Ukraine recognizes and operates the rule of law principle, all people are free and equal in their dignity and rights, citizens have equal constitutional rights and freedoms and are equal before the law, and everyone is obliged to strictly comply with the Constitution and laws of Ukraine. After all, it is presumed that during the exercise of these types of control these state bodies do not interfere in the administration of justice, but act on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine. The NAPC as one of the control bodies, the activity of which is also provided by international treaties of Ukraine, in this sense does not differ from other mentioned state bodies. Therefore, the decision of the CCU №13-r/2020 in this part objectively cannot be implemented, as it would lead to a violation of the Constitution (see in more detail the conclusion of Mykola Khavronyuk).

In further legislative work, not all the arguments of the CCU presented in the decision, which was adopted in the context of a conflict of interest, can be taken into account (for example, on the need to create parallel control bodies). Updating legislation, including constitutional provisions, should lead to accountability of the judiciary and the CCU, along with their independence.