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Weekly analytics for 3 – 10 January 2022

11.01.2022

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.

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The President Appointed the SBI Director Contrary to the Constitution


Event

On December 31, 2021, the President signed the Decree No. 691/2021 “On Appointment of O. Sukhachev as Director of the State Bureau of Investigations”. Oleksiy Sukhachev’s candidacy was proposed to the President by a competition commission consisting of 6 members (the President and the Parliament each delegated 3 members to the commission).

Furthermore, according to the current version of the Law “On the State Bureau of Investigations”, the commission was supposed to consist of 9 members, but the Cabinet of Ministers failed to delegate 3 members that were to be elected based on proposals from the international organizations with which Ukraine cooperates in the area of preventing and combating corruption according to international treaties.

CPLR’s assessment

The CPLR has repeatedly stressed that, in accordance with the Constitution’s provisions and established practice of its interpretation by the Constitutional Court, the scope and limits of the powers of the President and the Verkhovna Rada are defined exclusively by the Constitution and cannot be expanded by a law (see decisions of the CCU № 8-зп, № 10-рп/1998,  № 7-рп/2002, № 7-рп/2003, № 16-рп/2003,  № 22-рп/2003, № 9-рп/2004, № 7-рп/2005, № 1-рп/2007, № 12-рп/2007, № 3-рп/2008, № 9-рп/2008, № 14-рп/2008, № 19-рп/2008, № 21-рп/2008, № 17-рп/2009, № 21-рп/2009,  № 32-рп/2009,  № 16-рп/2010,  № 5-р/2019,  № 6-р/2019, № 9-р/2020, № 11-р/2020; opinion of the CCU № 7-в/2019). In light of this, Oleksiy Sukhachev’s appointment as the SBI Director was contrary to the Constitution, as the Constitution does not empower the President to appoint the head of the SBI (just as it does not empower the President nor the Parliament to appoint members of the commission for the selection of the SBI Director).

The President should have refrained from issuing a decree that has obvious constitutional deficiencies. Similarly, the Parliament should immediately bring the Law “On the State Bureau of Investigations” in line with the Constitution, without waiting for the CCU’s decision on the case concerning this law based on the constitutional petition of 58 Parliament members from June 2, 2020, and designate the SBI as a central executive body with a special status. Only after that there will be grounds for conducting a competition and therefore legitimately appointing the SBI Director by the Cabinet of Ministers.

It should also be recalled that the constitutional complaint filed by the former DBI Director Roman Truba is currently in the final stages of consideration by the CCU. Mr. Truba is appealing the provisions of the Law No. 305-IX “On Amendments to Certain Laws of Ukraine Concerning Improvements of the Work the State Bureau of Investigations” of December 3, 2019, which resulted in early terminated of the Bureau’s leadership at the time. There are reasonable grounds to believe that the CCU will rule in favor of Roman Truba, as in the Court has already stated in its Decision № 4-р(ІІ)/2021 that the Verkhovna Rada “cannot dismiss an individual employee or certain categories of employees, or to inform them of possible future dismissals, by virtue of adopting laws; a person can be dismissed not by a law, but only by an individual normative act, which the Verkhovna Rada of Ukraine has no authority to issue”.