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Weekly analytics for 28 September – 4 October 2021

05.10.2021

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).



Competition continues for the selection of candidates under the President's quotafor non-existent judicial vacancies on the Constitutional Court of Ukraine


Event

On August 17, the President of Ukraine issued Decree №365/2021 «Re: Competition for the selection of candidates for the position of a judge of the Constitutional Court of Ukraine regarding persons appointed by the President of Ukraine», which approved a new regulations on carrying out the competition for the selection of candidates for the position of a judge of the CCU (regarding persons appointed by the President of Ukraine), as well as set the composition of the competition commission for conducting such a competition (made up of both citizens of Ukraine and foreigners).

On August 20, the beginning of the competition for the selection of candidates under the quota of the President of Ukraine for the position of a judge of the CCU was announced by decision of the competition commission (Minutes № 1).

On September 24, the District Administrative Court of Kyiv commenced proceedings regarding a claim filed by the CCU judges O. Tupytsky and O. Kasminin against the Office of the President of Ukraine (OPU) and the competition commission for the selection of the CCU judges, challenging the August 20decision of the competition commission. Plaintiffs also challenge the actions of the competition commission and the OPU regarding the publication of mentioned announcement on the website of the Official Online Office of the President of Ukraine, asking the court to order the competition commission to withdraw this announcement.

On September 27, a list of persons who submitted documents for the competition for the selection of candidates for the judicial position in the CCU(regarding persons appointed by the President of Ukraine) was published on the Official Online Office of the President of Ukraine website (the list is being updated).

On September 28, a meeting of the competition commission for the selection of candidates for a position of the judge of CCU was held at the OPU. The competition commission reviewed the documents submitted by persons who intend to participate in the competition to verify compliance with the qualification requirements; approved the list of persons admitted to participating in the competition; and set the format of interviews and subsequent activities of the commission. After this meeting, the phase of special vetting of candidates in accordance with the Law of Ukraine «On Prevention of Corruption» started.

The CPLR’s assessment

The CPLR has already assessed Presidential Decree № 124/2021 of March 27, 2021, which in a dubious way repealed the decrees on appointments of O. Tupytsky and O. Kasminin to the positions of judges of the CCU, as being contrary to the Constitution of Ukraine. As such, there are no vacant judicial positions in the CCU under the President’s quota (however, there is one vacant position under the Parliament and the Congress of Judges quotas each), so conducting a competition for the CCU judges under the President’s quota is an inappropriate and hasty step. Since O. Tupytsky became a judge of the CCU on May 15, 2013, and O. Kasminin became a judge on September 19, 2013, their 9-year terms of office expire on May 15, 2022 and September 19, 2022 respectively. Therefore, it is advisable to start competitive selection for the first vacant position in the CCU under the President’s quota no earlier than 2022.

In this situation, an ideal solution would be to create a substantively different mechanism for the selection of CCU judges, using a single qualification commission that will consist of retired CCU judges and international experts, to which the Venice Commission drew attention. In particular, in December 2020,the Venice Commission called for: (1) establishing a new procedure for the selection of candidates for the office of judge of the CCU, in particular, through a special screening body with an international component, which will include international human rights experts and participants from civil society; and (2) refraining from filling current vacancies at the CCU until the revised rules for the selection of candidates for judicial positions are implemented in the Ukrainian legislation (see Opinion CDL-AD(2020)039). This would require relevant amendments to the law «On the Constitutional Court of Ukraine». Such unified approaches to the formation of the CCU on the basis of a transparent and objective competitive selection will increase the professionalism and integrity of the CCU judges and the level of public confidence in this institution. However, even such a commission would not be able to recommend to the entities charged with appointing the judges of the CCU any candidates in case of vacancies on the CCU are objectively absent.

The CPLR emphasizes that the President of Ukraine must avoid inciting further escalation of the inter-institutional conflict between the head of state and the CCU, which harms the stability of the constitutional order, Ukraine’s international image, and national security. It also calls on the President of Ukraine to act exclusively within his constitutional powers and refrain from any unconstitutional appointments to non-existent vacant judicial positions in the CCU. In addition, the Parliament and the Congress of Judges need to refrain from the practice of non-appointing the judges of the CCU for an extended time (the vacancies in questions on the CCU appeared in 2019).


The Council of Judges continues to block the creation of the Ethics Council


Event

On September 29, the President of the Venice Commission, Gianni Buquicchio, noted that judicial reform is crucial for Ukraine’s future. Stressing the importance of the Ethics Council’s creation, Mr. Buquicchio called on the Council of Judges of Ukraine (CJU) to delegate its representatives to the Ethics Council without delay, and all authorized bodies to refrain from actions that could delay launching its activity. As stated in the announcement: «Without the Ethics Council, there cannot be an independent and trusted High Judicial Council and, in turn, there cannot be a trusted High Qualification Commission of Judges».

The next day, a working meeting was held at the President’s Office concerning judicial reform, primarily in terms of implementing the provisions of the law regarding the Ethics Council’s formation. The Head of the Commission on Legal Reform under the President, Serhiy Ionushas, noted that «the speed of candidates selection [to the Ethics Council – author’s note] does not meet the expectations of society and the proposals of the Head of State and the Parliament» and, in the event the judicial self-governance fails to elect its candidates, the Verkhovna Rada will be forced to respond to this challenge.

The CPLR’s assessment

This is not the first time in the last month that the authorities and international partners have stressed the inadmissibility of CJU delaying the delegation of candidates to the Ethics Council. It should be reminded that on September 13, the CJU failed to vote for candidates for the Ethics Council, and on September 21, it approved a selection procedure that is not in line with the law – and what’s even more, it set a one-month deadline for candidates to submit documents. Given the unreasonable setting of such a deadline, it becomes clear that the CJU is trying to delay the process of the Ethics Council’s formation. Repeated calls to speed up the selection procedure were unsuccessful.

The CPLR experts have previously called on the CJU to comply with the law, as there are no obstacles to doing so, and in case of further blocking the implementation of the law by the CJU, it should be removed from the process of the Ethics Council formation.

More details regarding the Ethics Council formation progress are available in the weekly analyses for September 7-13, 14-20, 21-27, 2021.


Effortson digitalization and improving access to justice continue


Event

On September 28, a presentation of the mobile application «eCourt» was held, which was developed with the support of the UNDP Office in Ukraine. Currently, this application allows to: receive push notifications regarding the receipt of new documents in the e-cabinet and the changes in the status of cases; review cases, proceedings, and procedural documents that the user has created in his or her e-cabinet or that have been sent by the court; and view and manage powers of attorney and warrants.

In addition, draft laws on improving access to justice for citizens, developed with the CPLR experts participation, were presented on the same day:

№6125(«On Amendments to the Civil Procedure Code of Ukraine, the Commercial Procedural Code of Ukraine, and the Code of Administrative Justice of Ukraine to Improve Access to Justice»), regarding relieving the parties applying to the court in electronic form from the obligation to send copies of the submitted procedural documents to other participants on their own;

№6126(«On Amendments to the Criminal Procedure Code of Ukraine to Improve Citizens’ Access to Justice»), which proposes to expand the scope of the use of videoconferencing though one’s own technical means in criminal proceedings.

The CPLR’s assessment

  1. Creation of the mobile application «eCourt» istherightsteptowardsfurtherdigitalizationandimprovingcitizens’accesstojustice. Although the presented version of the application has limited functionality (e.g., does not allow user to create/edit/send procedural documents or to participate in court hearings by videoconference) and requires users to register an e-cabinet through the desktop version of the «eCourt», the developers promise that the application’s functionality will be continue to be expanded.
  2. The presented draft laws promote greater digitalization of justice. In particular, draft law №6125 enables addressing a shortcoming introduced by the Law №1416-ІХ, according to which even if a participant applies to the court in electronic form, he or she must provide evidence of sending copies of submitted documents to other participants, which both complicates access to justice and does not allow to completely eliminate the paper flow (this shortcoming was mentioned by the CPLR experts in the weekly analysis for April 27-May 3, 2021).

Expanding the scope of the use of videoconferencing through one’s own technical means in criminal proceedings, as proposed by the draft law №6126, will simplify access to justice, facilitate participation in hearings, and even help optimize the terms of criminal proceedings, as court hearings are often postponed due to repeated non-appearances by case participants.


Prosecutorial self-governance and disciplinary bodies resume their work


Event

The Council and the prosecutorial disciplinary body conducted their first meetings and resumed their work. This was announced on September by the Head of the Council of Prosecutors Anatoliy Yezhov and the Head of the Disciplinary Body of Prosecutors Andriy Hnativ during the conference «Reform of the Prosecutor’s Office of Ukraine of 2019-2021: Achievements and Next Steps” convened by the Council of Europe in cooperation with the Office of the Prosecutor General.

On August 28, the competent composition of the Council of Prosecutors (at least 9 members) was formed by the сonference of prosecutors. On September 17, the competent composition of the disciplinary body of prosecutors (at least 9 members) was formed after the candidates nominated by the Parliament’s Commissioner for Human Rights were approved by the Parliament’s Committee on Law Enforcement Affairs. Prior to that, a conference of prosecutors, as well as a congress of representatives of legal universities and scientific institutions delegated their members to the Council of Prosecutors and the disciplinary body of prosecutors.

It should be noted that the majority of prosecutors delegated to the disciplinary body (3 out of 5 members) currently work in the Office of the Prosecutor General, and the majority of representatives of legal universities and scientific institutions (3 out of 4 members) delegated to the Council of Prosecutors and the disciplinary body work in the universities in Kharkiv. The disciplinary body also includes two retired judges: Olena Zakharova and Mykhailo Tsurkan.

Similarly to the Qualification and Disciplinary Commission of Prosecutors (QDCP), the majority of the disciplinary body consists of current and former prosecutors (6 members, compared to 7 in QDCP).

The CPLR’s assessment

The resumption of the work of the Council of Prosecutors and the disciplinary body is Ukraine’s positive step towards building a European-style procuracy, as the suspension of their activity was strongly criticized by the Council of Europe.

In particular, last year GRECO noted in its compliance report that the 2019 law on the reform of the prosecutor’s office «drastically changes the situation assessed at the time of the evaluation visit, altogether suspending the prosecutorial self-governing bodies, in particular the Qualification Disciplinary Commission for a provisional period until 1 September 2021, with insufficient clarity on how their work will resume”. At the same time, GRECO expressed «most critical concerns regarding the suspension of the self-governing bodies, as these bodies are guardians of the independence and autonomy of prosecutors and should be in place to shelter the prosecution service from undue political influence, both real and perceived. Moreover, replacing the current system for recruitment and career progression of prosecutors with personnel commissions, without regulating by law their composition, functions and procedures, is clearly unsatisfactory».

In addition, as noted during the meeting of the Committee of Ministers of the Council of Europe in June 2020, the draft law that provided for evaluations of prosecutors was not fully analyzed and was adopted without prior in-depth consultation with national stakeholders or undergoing international expert assessment. It was also separately stressed at the meeting that the powers, and especially discretionary ones, in matters of selection, training, career promotion, and dismissal from the prosecutor’s office should not be left in the Prosecutor General’s «hands».

At the same time, the resumption of the work of the Council and the prosecutorial disciplinary body in itself does not constitute significant progress in the system of prosecutors’ selection, training, career promotions, and dismissal in accordance with Council of Europe standards and best practices.

The shortcomings in the primary organizational model of the Council and the disciplinary body of prosecutors that are embedded in the 2014 Law on the Prosecutor’s Office, as well as new challenges caused by the 2019-2021legislation on the prosecutor’s office reform will significantly limit the effectiveness of these bodies.

Council of Prosecutors

According to the Law on the Prosecutor’s Office, the Council is not an institutionalized body, i.e., it does not have its own budget, premises, secretariat (staff), and even members of the Council exercise their powers in parallel with their main work in a prosecutor’s office. Although prosecutors who are members of the Council may be seconded to perform their functions for a certain period, their secondment depends on the decisions of the heads of prosecutors’ offices and – not the least crucially – on the Prosecutor General and his / her deputies. The organizational support for the Council is provided by a unit in the Prosecutor General’s Office, which also calls into question the issue of the Council’s autonomy from the Office of the Prosecutor General and its independence from the Prosecutor General.

Moreover, the Council does not have at its disposal effective mechanisms to respond to interference into prosecutors’ independence, especially in cases of external interference. An effective mechanism for implementation of any of the Council’s decisions is de facto non-existent.

It must be particularly noted that the previous compositions of the Council never developed clear and understandable criteria and procedures for providing recommendations for filling of administrative (leadership) positions in the procuracy.

Disciplinary body of prosecutors

The Law № 113-IX of September 19, 2019 (regarding priority measures to reform the prosecutor’s office) caused a conflict by removing a reference regarding the Qualification and Disciplinary Commission of Prosecutors from the Law on the Prosecutor’s Office. Therefore, as of today, there is a body conducting disciplinary proceedings and a separate budget institution – the Qualification and Disciplinary Commission of Prosecutors (legal entity code 41356563), which is not dissolved, is not in the process of dissolution, and owns a number of facilities, equipment and other resources. Furthermore, the state budget for 2021 does not include expenditures for either the prosecutorial disciplinary body or the Qualification and Disciplinary Commission of Prosecutors.

In other words, it is unlikely to expect a full-fledged operation of the disciplinary body this year.

Furthermore, there are still a number of factors that will negatively affect the independence and efficiency of the disciplinary body after the beginning of the new budget year, the most notable among which are as follows:

  • according to the decision of the conference of prosecutors, the secretariat of the disciplinary body functions within the Office of the Prosecutor General and not within the body itself;
  • there are no disciplinary inspector positions provided for the disciplinary body which, on one hand, allows the Office of the Prosecutor General to have units within its structure that can vet prosecutors without a disciplinary body’s awareness, and on the other hand, does not allow members of the disciplinary body to pay due attention to personnel functions;
  • the issuance of orders and approval of regulations and guidelines by the Prosecutor General’s Office that have «mandatory» impact on the disciplinary practice of the body. For example, paragraph 2 of the Procedures for Internal Security Organization in the Prosecutor’s Offices of Ukraine lists instances that the Office of the Prosecutor General deems as violations of the dignity of the profession and such that may cast doubt on a prosecutor’s integrity, impartiality, and independence, as well as in honesty and incorruptibility of prosecutor’s offices. Instead, it should have been up to the disciplinary body to develop its own criteria for identifying such cases.

More information about the factors that may, in some way, negatively affect the work and practice of the disciplinary body is available in the CPLR’s research dedicated to the study of the practice of bringing prosecutors to disciplinary responsibility by the Qualification and Disciplinary Commission of Prosecutors in 2017-2018.