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Weekly analytics for 30 March – 6 April 2020

06.04.2020

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. 

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Draft Law on the Constitutional Court of Ukraine No 3300 is Unconstitutional


Event

On 3 April 2020, H. Tretiakova (Member of Parliament) submitted to the Verkhovna Rada of Ukraine a Draft Law on revision of the Law of Ukraine “On the Constitutional Court of Ukraine” (No. 3300), in order to:

  •  Transfer of the Constitutional Court’s location from Kyiv to Kharkiv.
  •  Unable the possibility of foreign citizenship to the judges of the Constitutional Court.
  •  Grand mandatory annual vacation to all judges of the Constitutional Court at the same time.
  •  Deny the right of legal entities to submit a constitutional complaint.
  •  Terminate all ongoing constitutional proceedings on constitutional complaints of the legal entities.
  •  Change the procedure for reviewing the constitutional complaints in the Constitutional Court.
  •  Amend the process of adoption and implementation of the Constitutional Court instruments.
  •  Amend administrative, civil and commercial procedural legislation regarding the procedure for reviewing court decisions in newly discovered or exceptional circumstances.

CPLR Position

Since the provision of the Draft Law No 3300 denies legal entities with the right to submit the constitutional complaint to the Constitutional Court of Ukraine, the Draft Law directly contradict the Constitution of Ukraine, violating the following constitutional provisions:

  •  Everyone shall be guaranteed the right to submit a constitutional complaint to the Constitutional Court of Ukraine on grounds defined in the Constitution and under the procedure prescribed by law, Article 55 (4).
  •  The Constitutional Court of Ukraine decides on compliance with the Constitution of Ukraine of a law of Ukraine upon constitutional complaint of a person alleging that the law of Ukraine applied to render a final court decision in their case contravenes the Constitution of Ukraine, Article 151-1.

The CPLR pays attention that the Constitution of Ukraine guarantees the right to submit a constitutional complaint to the Constitutional Court literally to every person (i.e. both individuals and legal entities) and does not contain any exceptions or restrictions towards any groups of the persons. Therefore, amendments to Articles 55 and 56 of the Law of Ukraine “On the Constitutional Court of Ukraine” (regarding the prohibition of legal entities to apply to the Constitutional Court with a constitutional complaint), as well as the provisions of clause 2 of the “Final Provisions” of the Draft Law (regarding the termination of all ongoing proceedings initiated by the Court towards the constitutional complaints of legal entities) contravenes the Constitution of Ukraine.

With some positive exceptions (for instance, the direct prohibition of foreign citizenship for judges of the Constitutional Court, or provisions related to the enforcement of the implementing decisions of the Constitutional Court in case the act is unconstitutional), most of the initiative are inappropriate and unconstitutional, in general.

First, the transfer of the Constitutional Court’s location from Kyiv to Kharkiv seems to be a manifestation of indirect political intervention into Constitutional Court business, since it surprisingly reminds the similar parliamentary initiatives of the previous decade (in the 2000s) raised within the similar circumstances. In addition, implementation of such initiative requests a significant number of resources from the State Budget of Ukraine to cover all organizational and financial issues of Court transfer. However, to ensure the true independence of the judges of the Constitutional Court, the legislative optimization of the constitutional procedure for the selection of judges of the Constitutional Court on a competitive basis (Article 148 of the Constitution of Ukraine) is urgently needed. The CPLR recalls that the Parliament neither created the necessary procedural mechanisms to ensure the transparent selection of judge candidates to the Constitutional Court, nor omitted the unconstitutional provision in the Rule of Procedure towards the mandatory support of the judge candidates by parliamentary factions (groups).

Second, the reduction of the number of Constitutional Court judges required to adopt a decision on a constitutional complaint in the Senate (from at least two-thirds of judges in the Senate, i.e. six judges) to five judges from the Senate much more simplifies the Senate’s adoption of decisions, and therefore increases the risk of adoption unjustified or politically motivated decisions on constitutional complaints, since, in fact, 5 out of 18 judges of the Constitutional Court is able to make the final decision of the Court. There no valid explanation on what ground for reducing this number of judges is justified.

Third, the mandatory vacation for all judges of the Court at the same time is both inappropriate and unconstitutional since the permanently acting Constitutional Court shall provide adequate and timely reaction to any threats against the stability of the constitutional order and shall ensure the legal force of the Constitution of Ukraine and the protection of human rights and freedoms (Chapter XII of the Constitution of Ukraine). The simultaneous absence of all Constitutional Court judges makes Court vulnerable and incapable of performing its constitutional functions for a long time period (one month or more), which is unacceptable in a democratic state. As for vacation, this issue should be regulated by the instruments of the Constitutional Court (as, in fact, it is today).

Therefore, because of unconstitutional nature of the certain provisions of the Draft Law No. 3300, as well as the other reservations made above, the CPLR recommends this Draft Law should be withdrawn.

Conclusion:

1. Draft Law provisions on the exclusion of legal entities from the subjects of the constitutional complaint, as well as on the simultaneous granting annual vacation to all judges of the Constitutional Court do not agree with the Constitution of Ukraine.

2. Constitutional Court’s location transfer is inappropriate and costly endeavour with no foreseeable positive outcome. In addition, reducing the number of Constructional Court judges to decide on a constitutional complaint is unjustified and increases the risk of making unjust or politically motivated decisions by the Senate of the Court.

3. CPLR recommends the Verkhovna Rada to adopt necessary amendments to the Law of Ukraine “On the Constitutional Court of Ukraine” for the implementation of Article 148 of the Constitution of Ukraine (on the procedure of a selection of judges of the Constitutional Court on a competitive basis), as well as to remove the unconstitutional provisions of Article 208-4 of its Rule of Procedure on the support of judge candidates by a parliamentary factions (groups). A clear procedural mechanism on transparent selection of the Constitutional Court judge candidates, not the Court’s location transfer, is the key foundation for the independence of this body.

 



Government's initiative to reduce the remuneration of judges along with other civil servants is justified in today's context


Event

On March 29, the Cabinet of Ministers of Ukraine submitted to the Parliament the draft law “On Amendments to the Law of Ukraine “On the State Budget for 2020”.

Among other things, the Government proposed to reduce the salaries of employees of budgetary institutions (including judges) to UAH 47,230 from April 1 until the end of quarantine. The draft law is justified by the need to reduce government spending in order to release funds for combating the spread of the COVID-19 pandemic.

The Chairman of the Council of Judges of Ukraine criticized the Government’s initiative, in particular because the draft law was prepared “without consultations with the judicial corps, without proper public discussion, without properly informing about the expected effect of such changes specifically due to the reduction of expenditures on the judiciary”, and at the same time he agreed that “amount of the judges’ remuneration, if it can be reduced, should be reduced only for a quarantine period and with the determination of the level of remuneration depending on the instances of the court.”

The High Council of Justice called to refrain from making changes related to judges so as not to violate the constitutional guarantees of the independence of judges.

The Chairman of the Supreme Court described the conditions under which the reduction of judges’ remuneration would be legitimate: “In accordance with European standards, the parliament can turn to a reduction of the financial support of judges only if the economic situation in the state worsens. However, given the importance of the independence of judges, the narrowing of this guarantee under the standards should affect all civil servants, occur not in the first place and proportionately (i.e. accompanied by a simultaneous reduction of salaries of employees of other public authorities), should be temporary.” As for the draft law, in the opinion of the Chairman of the Supreme Court, its provisions violate the requirement of proportionality, since the reduction applies “not to all civil servants, and disproportionately to the level of their salaries.”

On March 30, the Parliament submitted the draft law for revision under a shortened procedure.

CPLR Assessment

According to the CPLR experts, the Governmental initiative on the temporary (from April 1 and for a quarantine period of less than 1 month, as of now) limitation of the maximum level of remuneration of public servants is justified by exceptional economic reasons. Thus, according to the forecast of the Cabinet of Ministers of Ukraine, the GDP is expected to fall by at least 3.9% in 2020 (compared to the 3.7% increase previously projected), and the reduction of the maximum level of remuneration will apply not only to judges, but equally to all employees of budgetary institutions, except those involved in COVID-19 counter-measures and defense. That is, the Governmental initiative pursues a legitimate purpose and is not an infringement of the independence of judges. However, the remuneration of all judges will be the same, regardless of the amount of remuneration they normally receive.

While preparing the draft law for the repeated first reading, it is advisable to consult with representatives of the judiciary, whose position (namely, one of the High Council of Justice) is not currently socially responsible. A solution to the problem may be a proportional reduction of the amounts judges’ remuneration by applying a certain coefficient. For example, a certain minimum shall be guaranteed (say, the same 10 minimum wages), and everything that has to be paid above this amount shall be multiplied by a certain coefficient, for example, 0.5 or less.



Judges could close the restrictive measures abuse cases on the grounds of their unconstitutionality


Event

On April 2, 2020, the Cabinet of Ministers of Ukraine approved Resolution No. 255 “On Prevention of Spreading in the territory of Ukraine of COVID-19 Acute Respiratory Disease Caused by the SARS-CoV-2 Coronavirus” (replacing Resolution No. 215 of March 16, 2020, which replaced Resolution of March 11, 2020 No. 211).

CPLR Assessment

Any governmental resolution is a by-law, that is, it must be based on the provisions of the laws and fully comply with them. No exceptions.

Resolution No. 255 should follow from the provisions of at least three specialized laws – the Law of Ukraine “On the Protection of the Population against Infectious Diseases”, the Basics of the Legislation of Ukraine on Health Care and the Law of Ukraine “On Ensuring the Sanitary and Epidemic Well-Being of the Population” (we can also mention the Law of Ukraine “On Tuberculosis Prevention”). Instead, the resolution follows only from the first of these laws, specifically from one of its articles – Article 29.

According to this article, which is called “Quarantine” (as translated from Italian – “forty days”), the decision to establish quarantine determines, in particular, the temporary restrictions on the rights of individuals and legal entities and the additional duties assigned to them.

At the same time, the governmental resolution must comply with the law while the law, in turn, must comply with the Constitution of Ukraine. Otherwise, this is the wrong law, and it is not necessary to obey it.

Therefore, it is wrong to think that the above Article 29 gives the CMU the power to impose any restrictions on citizens’ rights and set additional duties. For such a case, Article 64 of the Constitution explicitly states: “Constitutional rights and freedoms of an individual and citizen can not be restricted except in cases provided for by the Constitution of Ukraine.”

Someone would say that only constitutional rights are mentioned here and other rights, which are not constitutional, may be restricted. Indeed, “an individual is able to have other civil rights not established by the Constitution of Ukraine” (Article 26 of the Civil Code). However, in this case, we are not interested in the unconstitutional right to inheritance or the right to donorship, Resolution No. 255 is about something else. It contains the following prohibitions for ordinary citizens to be applied until April 24, 2020, with some exceptions:

  •  “staying in public places without wearing personal protective equipment, in particular, a respirator or protective mask, including self-made ones”;
  •  “movement by a group of more than two persons”;
  •  “staying in public places of persons under 14 years without parents, adoptive parents, guardians, foster parents, caregivers, other persons in accordance with the law or adult relatives of a child”;
  •  “visiting parks, squares, recreation areas, forest parks and coastal areas, except for walking pets by one person”;
  •  “holding all mass events”;
  •  “visiting institutions and organizations providing palliative care, social protection in which children, elderly citizens, veterans of war and work, persons with disabilities, persons with persistent intellectual or mental disorders temporary or permanently reside, as well as institutions and organizations providing social services to families/individuals in difficult life circumstances”;
  •  “staying on the streets without identity documents, certifying citizenship or special status”.

Therefore, a number of constitutional rights and freedoms are restricted: the right to respect for dignity (and at the same time, it allows for degrading treatment); freedom of movement; the right to non-interference in personal and family life; the right to freely exercise religious cults and rituals in a collective manner; the right to assemble peacefully, without arms and to hold meetings, rallies, marches and demonstrations; the right to engage in business activities not prohibited by law; the right to strike; the right of disabled parents to get care by their adult children and the like.

Despite the fact that the authorities had the opportunity and reason to introduce a state of emergency, and in accordance with the Law of Ukraine “On the Legal Regime of a State of Emergency” to legally impose restrictions on some (it should be emphasized – some) human and citizen rights (in particular, right to freedom of movement, right to hold some mass events and strikes), they did not introduce it.

By adopting the Law of March 17, the Verkhovna Rada amended the Code of Administrative Offenses with a new Article 44-3 “Violation of the rules on quarantine of people”.

It established that “violation of the rules on quarantine of people, sanitary-hygienic, sanitary-anti-epidemic rules and norms provided by the Law of Ukraine “On the Protection of the Population against Infectious Diseases”, other acts of legislation, as well as decisions of local self-government bodies on combating infectious diseases”, entails the imposition of a fine on citizens from UAH 17 thousand to UAH 34 thousand and on officials – from UAH 34 thousand to UAH 170 thousand.

This provision is very abstract in nature: “violation of the rules established by the acts of legislation entails…”. In addition, UAH 34 thousand for citizens, as provided for in Article 44-3, is an inadequate penalty that contradicts the principle of proportionality because it does not take into account either the level of legal income of the population or the amount of penalties provided for by the Code of Administrative Offenses and the Criminal Code for similar or even harder offences. It should also be remembered that the amount of fine may be doubled, under certain conditions (see Article 308 of the Code of Administrative Offenses).

If we return to the Basics of the Legislation of Ukraine on Health Care, the Laws of Ukraine “On the Protection of the Population against Infectious Diseases”, “On Ensuring the Sanitary and Epidemic Well-Being of the Population”, “On Tuberculosis Prevention”, their provisions clearly establish only a few grounds of legal liability for certain categories of individuals. Indeed, such liability may be hold by:

1) a person who is a carrier of a causative agent of a dangerous infectious disease – for violation of the prohibition to perform activities that may contribute to the spread of an infectious disease;

2) the same person – for evasion of compulsory medical examination or observation, compulsory hospitalization, treatment or quarantine in cases prescribed by law;

3) a person suffering from tuberculosis or infected with tuberculosis mycobacteria – for evading the duties specified in the Law “On Tuberculosis Prevention”;

4) other natural persons – for violation of special conditions and regime of: a) labor, b) training, c) movement, or d) transportation, established to prevent the spread and eliminate a dangerous infectious disease in the territory of Ukraine or in its separate locality. [That is, if such conditions and regimes make it impossible to prevent the spread of the infection (for example, when it comes to walking the park or going to the store without a passport), the liability is unjustified].

This is it.

Dozens or hundreds of all other multi-page rules, procedures, instructions, regulations, etc. concerning quarantine, sanitation and hygiene, prevention and response to epidemics, are prescribed only for officials, and therefore only apply to them. Anyone who is NOT an official is not obliged and in fact unable to know them and therefore cannot be held responsible for failure to comply with them. According to the Constitution: “Ignorance of the law does not release from legal responsibility”, but it says nothing about the ignorance of the bylaws.

In such a way, the driver is obliged to know the road traffic rules and the hunter – the rules of hunting, but only because this duty is directly assigned to them, respectively, by the laws “On the Road Traffic” and “On Hunting Industry and Hunting”. However, no laws impose an obligation to know all the anti-epidemic, quarantine, etc. rules on an ordinary citizen.

Judges will act properly, closing cases of administrative offenses provided for in Article 44-3 of the Code of Ukraine on Administrative Offenses, concerning individuals, on the grounds that contrary to the requirements of paragraph 22 of Part 1 of Article 92 of the Constitution of Ukraine, an action that is an administrative offense, is not defined by law, but only by a by-law, the reason of bringing to liability does not meet the principle of legal certainty, and the sanction – the principle of proportionality, that is, all article 44-3 is contrary to the rule of law principle.