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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 of Ukraine visited The Hague, but did not mention the ratification of the Rome Statute of the International Criminal Court


On May 4, 2023, the President of Ukraine Volodymyr Zelenskyi visited the International Criminal Court (ICC), where he met the President of the Court Piotr Hofmańsk and the Secretary of the Court Osvaldo Zavala Giler.

In his speech, President Zelenskyi highly praised the role of the ICC in ensuring justice in Ukraine and promoting the rule of law throughout the world.

At the same time, the Court’s website notes that Ukraine is not a state party to the Rome Statute of the International Criminal Court (RS ICC), but it has twice used its prerogatives provided by Article 12(3) of the Statute to accept the Court’s jurisdiction over alleged crimes under the Rome Statute that occur on its territory. As a reminder, on March 2, 2022 the ICC started an investigation concerning the situation in Ukraine.

CPLR’s assessment

CPLR’s experts have repeatedly noted the difficult situation related to Ukraine’s delay in ratifying the Rome Statute of the ICC – in essence, cases relating to Ukraine are considered in full as if it were a party to this international treaty, but at the same time it cannot resort to other tools of the Rome Statute of the ICC, such as delegating a judge from Ukraine, proposing amendments to the Statute, etc. V. Zelenskyy highly praised the role of the ICC in his speech, but he did not mention why Ukraine is not ratifying the Rome Statute, which can positively affect the process of bringing the Russian military-political command to justice for international crimes.

Even after the active position taken by the ICC prosecutor Karim Khan during 2022 and the issuance on March 17, 2023 of the arrest warrant for V. Putin and M. Lvova-Belova in connection with illegal deportation and transfer of Ukrainian children from the occupied territories to the Russian Federation, Ukraine did not change its position on the need for ratification of the RS of the ICC.

Nevertheless, the political position of Ukraine remains unchanged – that is, a made-up fear among our military-political leadership that this will limit the commanders’ free discretion on the battlefield and demotivate the military in general. In other words, there are concerns that the ICC will begin studying the facts regarding war crimes committed by Ukrainian military. Among others, this relates to the mechanism of “chain of command”, a unique institution of international criminal law that allows to bring to justice commanders for the actions of their subordinates by establishing causal links up to the Commander-in-Chief.

However, both in the theory of international criminal law and in practice, the ICC is only interested in systemic international crimes by the military-political leadership, and not in individual cases that also occur at the hands Ukraine. At the same time, the Court acts according to the principle of complementarity; that is, since Ukraine has already opened criminal proceedings based on the alleged facts of commission of war crimes by its military in rapid response to information that appeared in the Western media and is conducting effective investigations, there is no need for consideration of these cases by the ICC.

Furthermore, ratification of the Rome Statute of the ICC is Ukraine’s obligation stipulated by the Association Agreement with the EU. Thus, in view of Ukraine’s European integration aspirations, the ratification of this international treaty is an inevitable step. Considering that Ukraine has already recognized the Court’s jurisdiction over the Russian-Ukrainian armed conflict, fears concerning the possible persecution of the Ukrainian military command will not disappear over time, so it is better to become a full party to the treaty now and not contribute to an ambiguous position on cooperation with the ICC, as it is currently happening. The current procedural legislation (Chapter IX-2 of the Criminal Procedure Code of Ukraine) contains a note that cooperation with the ICC applies only to the facts of commission of international crimes by the Russian military personnel, which is inconsistent with the essence of the RS of the ICC and with Ukraine’s intent to ratify the Statute. In order to eliminate this ambiguity, it is necessary to complete accession to this document through its ratification, which is long overdue.

Tax and customs services are “special” government authorities


The draft Law of Ukraine “On amendments to the Customs Code of Ukraine on setting forth peculiarities of service in customs authorities and conducting the customs authorities’ officials’ certification” (reg. № 6490-d of April 6, 2023) is being prepared for second reading in the Verkhovna Rada of Ukraine. It proposes amendments to the Customs Code of Ukraine and to Art. 21-1 “Territorial bodies of central executive authority implementing state customs policy and central executive authority implementing state tax policy” of the Law of Ukraine “On Central Executive Authorities”. The amendments relate to admission into the service at customs authorities, its conduct, and termination, the appointment of the Head of the CEA that implements the state customs policy and his/her removal from office, the annual external independent assessment (audit) of the effectiveness of this CEA, and remuneration of officials and employees of CEA and its territorial bodies. The Committee on Finance, Tax, and Customs Policy is designated as the main Parliament’s committee regarding this draft law.

The same Committee is working on another draft law with similar content, “On amendments to the Tax Code of Ukraine and other laws of Ukraine on setting forth the peculiarities of service in tax authorities and certification of officials of tax authorities” (reg. № 9243 of April 26, 2023). It proposes amendments to the Tax Code of Ukraine regarding similar issues and amendments to Art. 18, 19 of the Law “On Central Executive Authorities”, which defines the minister’s authority in relations with the CEA whose activities are guided and coordinated through the minister.

CPLR’s assessment

Since January 2020, the Law of Ukraine “On Civil Service” provides that peculiarities of civil service in a CEA that implements the state customs policy and in a CEA that implements the state tax policy, as well as in their territorial bodies are set forth by the Customs and Tax Codes of Ukraine. Back then, the CPLR experts emphasized the fact that there are no good grounds for “legitimizing” the non-application of certain provisions of the Law of Ukraine “On Civil Service” to civil servants of these executive authorities. Additionally, the distinct legal regulation of the formation, termination, and activity of territorial bodies of such CEAs as set forth in Art. 21-1 of the Law of Ukraine “On Central Executive Authorities” is also quite dubious.

The CPLR experts believe that even with such legislative exceptions in the Laws of Ukraine “On Civil Service” and “On Central Executive Authorities” for customs and tax authorities, the latest legislative amendments proposed in April are not sufficiently substantiated. In particular, this includes the provisions on non-applicability to officials of customs and tax authorities engaged under a civil service contract of legislation on civil service relating to procedure for assessing the results of civil servants’ official activities. These provisions of the draft laws call into question the effectiveness of the assessment procedure set forth by legislation on civil service. After all, the authors of the draft laws, based on their content, consider this procedure unsuitable for customs and tax authorities.

A competition procedure different from the one set forth by the Law of Ukraine “On Civil Service” is envisioned for the appointment of the heads of CEAs that which implement the state customs and tax policy. These provisions of the draft laws will create distrust in the ability of Commissions for the Higher Ranks of Civil Service to fulfill its purpose, since the CEAs that implement the state customs and tax policy needs other competition commissions.

We also do not support the rule on the appointment of the first deputy and deputy heads of these CEA without conducting an open competition. Such an approach will contain subjectivity and corruption risks.

International and foreign organizations that provided Ukraine with international technical assistance in the areas of structural reforms and financial and technical support in connection with preventing and countering corruption will have significant influence on determining the staffing of competition and evaluation commissions. Furthermore, the Secretariat of the CMU, which will facilitate the work of these commissions, will be faced with extra workload.

The evaluation commissions will approve the criteria and methodology for assessing the effectiveness of these CEAs. This is a cause for concern. In our opinion, such criteria should be determined by the Ministry of Finance of Ukraine rather than by an entity that is not part of the system of executive authorities. The Ministry of Finance forms the state policy in these areas and directs and coordinates the activities of these CEAs. The approach proposed by the draft laws will also contradict the substance of the reform of the ministries.

Taking into account the currently ongoing reform of the legislation on civil servants remuneration, the approach of the draft laws regarding the issue of remuneration of officials and employees of these CEAs and their territorial bodies also does not appear convincing enough.

Amendments proposed to the Law of Ukraine “On Central Executive Authorities” could be considered a positive aspect of the draft law № 6490-d. It is provided that the appointment and dismissal of the heads and deputy heads of territorial bodies, as well as independent structural subunits of the secretariat of a CEA that implements the state customs policy and a CEA that implements the state tax policy will be carried out without consent from the minister who guides and coordinates their activities. Indeed, given the existence of a competitive procedure for appointment to positions, such an approval is really unnecessary.

However, draft law № 9243 contains an opposite approach to this issue. Appointments to positions and removals will be carried out upon consent from with the minister who guides and coordinates the activities of these CEAs.

Given the above, the experts of the CPLR do not support the Parliament’s adoption of the draft laws № 6490-d of April 6, 2023 and № 9243 of April 26, 2023.