Weekly analytics for 3 – 9 November 2020

Parliament has no comprehensive decisions to overcome the consequences of the decision of the Constitutional Court on e-declaration. However, there are 24 draft laws

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Event

Within two weeks after the Constitutional Court passed the dubious decision No. 13-r/2020, which nullified the state’s measures to combat corruption, 24 draft laws were submitted to the parliament due to this decision (texts of draft laws No.No. 4339 and 4343 were not published at the time of preparation of this material). They offer various solutions to the problem, sometimes different solutions are offered by the same subjects.

It should be reminded that a decision of the Constitutional Court declared unconstitutional a significant part of the NAPC’s powers over financial control, lifestyle monitoring, as well as an article of the Criminal Code establishing liability for knowingly false declaration (see detailed analysis of this decision in Ukrainian., English.).

CPLR assessment

Draft laws can be divided into three groups:

1) those that propose unconstitutional solutions;
2) those that offer ineffective solutions;
3) those that can be taken as a basis, but need improvement.

In this analysis, we assume that the decision of the Constitutional Court is binding, despite its contradictory nature and our disagreement with it.

The following proposals are unconstitutional:

– by adopting a law, to recognize the decision of the Constitutional Court №13-р/2020 null and void and such that does not create legal consequences; to restore the effect of the Law “On Prevention of Corruption” and the Criminal Code in the wording that was in force before the decision; terminate the powers of the Constitutional Court (Presidential draft law No. 4288);

– to declare by law the decisions of the Constitutional Court No.13-r/2020 and No. 6-r/2019 null and void; to declare unconstitutional the  Decree of the President “On early termination of powers of the Verkhovna Rada of Ukraine and calling extraordinary elections” of May 21, 2019; to declare illegitimate the early termination of the powers of the Verkhovna Rada of the VIII convocation and the appointment of early elections on July 21, 2019, their results, legal consequences and, accordingly, acts of the Verkhovna Rada of the IX convocation; to terminate the powers of the Verkhovna Rada of the IX convocation; to call early elections of people’s deputies (draft law No.  4288-1);

– to restore the provisions of the Law “On Prevention of Corruption” and the Criminal Code, which were declared unconstitutional, in the wordings in force as of October 27, 2020; to instruct the Cabinet of Ministers to propose changes arising from the decision of the Constitutional Court (draft law No.  4304);

– to restore the provisions of laws declared unconstitutional (but not more than for one month), without extending their effect to judges and judges of the Constitutional Court (draft laws No.No. 4288-2, 4304-1);

– to restore the provisions of Art. 366-1 of the Criminal Code by presenting it in an almost identical wording or supplementing it with a new article (366-2) of the same content, or by strengthening the sanction (draft law No.No.4301, 4307, 4310);

– to reduce the budget funding of the Constitutional Court of Ukraine (draft law No. 4308);

– to increase the quorum for the meetings of the Grand Chamber of the Constitutional Court from 12 to 17 judges (having 15 judges of the Constitutional Court available), which will make it impossible for this body to make decisions (draft law No.4311);

– to subordinate the NAPC to the Verkhovna Rada, removing it from the executive branch (draft law No.4329).

These proposals do not comply with the provisions of the Constitution that the decisions of the Constitutional Court are binding; the powers of judges of the Constitutional Court may be terminated exclusively on the basis of the grounds specified by the Constitution; The Verkhovna Rada may not have more powers than defined in the Constitution. Moreover, the constitutional order will be undermined if one constitutional body blocks the work of another.

CPLR experts are of the opinion that the following draft laws will be ineffective:

– that propose to completely remove judges and judges of the Constitutional Court from the scope of regulation of the Law “On Prevention of Corruption” (draft laws No.No.4287, 4293);

– that propose to introduce a separate declaration system for judges in the High Qualifications Commission of Judges (HQJC) with its control and monitoring according to the rules established by the High Council of Justice (HCJ) or HQCJ, and for judges of the Constitutional Court – by the Integrity Council of the Constitutional Court (draft laws No.No.4292, 4300, 4292-1);

– temporarily entrust the functions of financial control over judges to the State Judicial Administration (SJA) (draft laws No.No.4292, 4304-1);

– transfer the authority to draw up protocols in cases of administrative offenses under Article 172-6 of the Code of Administrative Offenses (violation of financial control requirements) against judges from the National Police and the NAPC to the chairman and deputy chairman of the High Qualifications Commission of Judges (draft laws No.4312);

– reduce the quorum for meetings of the Grand Chamber of the Constitutional Court (in particular from 12 to 10 judges) (draft laws No.No.4311-1, 4311-2).

These decisions will not be effective as the HQCJ is not currently operational; such a body as the Council of Integrity of the Constitutional Court is not envisaged and its concept is absent; The SJA should not even temporarily control judges, as functionally, the purpose of this body is to support the courts. The HCJ, as a collegial body with a large number of tasks, cannot be an effective body for solving these tasks as well. Creating a parallel declaration system for judges would be an unjustified waste of public resources.

Decisions that do not call into question their constitutionality, and can be taken as a basis, include:

–        draft law No.4309 – provides that the acts covered by Art. 366-1 of the Criminal Code, will be referred to Art. 172-6 of the Code of Administrative Offenses (sanction – a fine, and in case of repeated act, as well as for top officials – an increased fine with deprivation of the right to hold certain positions or engage in certain activities for a period of one year);

–        draft laws No.No. 4317, 4319 provide for increasing the minimum number of judges of the Constitutional Court for decisions by the Grand Chamber from 10 to 12. The second draft also provides for the Senate to set 6 votes instead of two thirds (today it is from 4 to 6 judges depending on the number composition of the Senate); it also contains a provision that the Rules of Procedure of the Constitutional Court are approved by law.

Regarding the draft law No. 4309, it should be noted that it was introduced by the same authors and on the same day as the draft law No.4310,  which provides for criminal liability for the same acts as defined by the draft law No.4309 as administrative offenses. Therefore, their simultaneous adoption will create a conflict and is impossible.

CPLR experts believe that the problems caused by the recognition of the provisions of the Law “On Prevention of Corruption” and Article 366-1 of the Criminal Code as unconstitutional need to be addressed comprehensively. The necessary steps include:

1.  supplement the Law “On Prevention of Corruption” with new provisions that would restore all mechanisms lost with the decision of the Constitutional Court, providing that the NAPC must approve the peculiarities of the procedure for implementing these mechanisms with regard to judges and judges of the Constitutional Court with mandatory consultations with the Council of Judges of Ukrine and the Constitutional Court. Following the reform of the HCJ and the HQCJ, some oversight powers over judges may be given to inspectors of these bodies;
2.  establish administrative liability for knowingly incorrect declaration, but for the commission of these acts under certain aggravating circumstances, criminal liability can be established as for a criminal offense;
3.  introduce a competitive procedure for the selection of future judges of the Constitutional Court by an independent commission, which shall be formed of specialists delegated in equal shares by the Meeting of retired judges of the Constitutional Court and international organizations;
4.  increase the quorum for the consideration of cases and the adoption of decisions of the Constitutional Court by the Grand Chamber and to provide for the senates the obligation to refer the case to the Grand Chamber if they are inclined to declare a provision unconstitutional.