Weekly analytics for 30 November – 6 December 2021
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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President registers in Parliament a package of draft laws relating to citizenship of Ukraine
On December 2, the President of Ukraine submitted five draft laws to the Verkhovna Rada:
- on amendments to the Law of Ukraine № 2235-III «On Citizenship of Ukraine» of January 18, 2001, regarding the grounds and procedure for acquiring and terminating the citizenship of Ukraine (Reg. № 6368), which sets out the new version of the Law «On Citizenship of Ukraine»;
- on preventing and counteracting the threats to the national security of Ukraine in the area of citizenship (Reg. № 6369), which, among others, provides for situation where citizens of Ukraine are required to submit a declaration about the existence (lack) of foreign citizenship, and sets the existence of foreign citizenship as an additional ground for dismissal of certain officials;
- on amendments to Article 570 of the Customs Code of Ukraine regarding preventing and counteracting the threats to national security of Ukraine in the area of citizenship (Reg. № 6370), which provides for dismiss of customs officials in case of their foreign citizenship;
- on amendments to the Law of Ukraine «On Judiciary and Status of Judges» regarding preventing and counteracting the threats to national security of Ukraine in the area of citizenship (Reg. № 6371), which provides for prohibition of foreign citizenship of judges, their assistants, members of the High Qualifications Commission of Judges, and jurors;
- on amendments to the Code of Administrative Offenses, the Criminal Code, and the Criminal Procedure Code of Ukraine regarding responsibility for violations of legislation in the field of citizenship (Reg. № 6372), which, among others, provides for administrative and criminal responsibility for violations of legislation in this area.
The package of draft laws is aimed at resolving two tasks – to create legal grounds for legalization of dual (multiple) citizenship and to prevent persons who have both Ukrainian and other countries’ citizenship from holding office in public sector authorities.
However, draft law № 6368 de facto changes the constitutional approach to regulation of citizenship by allowing citizens of Ukraine to hold multiple citizenships (including citizenship of the aggressor state) without renouncing their Ukrainian citizenship, which contradicts Article 4 of the Constitution of Ukraine: «Ukraine has a single citizenship». All interpretations of this provision, starting from discussions during the adoption of the Constitution of Ukraine and subsequently in scholarly and practical commentaries on the Constitution, unequivocally indicate impossibility for a citizen of Ukraine to hold any other citizenship. Unfortunately, these constitutional provisions are already distorted in the current Law № 2235-III, where they are interpreted not as a prohibition of multiple citizenships, but as the impossibility of citizenship of administrative-territorial units of Ukraine. Draft law № 6368 continues to reproduce this logic. Therefore, in the conditions of Russia’s hybrid aggression against Ukraine, the creation of legal grounds for the citizens of Ukraine to hold multiple citizenships, including Russian citizenship, is not only unconstitutional, but also clearly threatens national security.
A positive aspect of proposed reform is the legislative provisions that introduce a mechanism for detecting foreign citizenship of Ukrainian citizens through mandatory declaration and provide for this as a ground for dismissal of certain officials authorized to perform state or self-governance functions. At the same time, severe responsibility is introduced for failure to submit or untimely submission of a declaration, as well as intentional submission of false information by a person submitting the declaration on the existence / lack of a foreign citizenship (including on being / not-being in the process of acquiring / terminating a foreign citizenship and on submitting the documents for acquiring a foreign citizenship). Such amendments can certainly facilitate Ukraine’s national security.
Thus, the draft laws need to be substantially revised, primarily by being brought into compliance with the Constitution of Ukraine.
First meeting of the Ethics Council takes place
On December 1, the first meeting of the Ethics Council was held, where Chapters I and II of the Rules of the Council were approved and the Head and Deputy Head of the Council were elected. Judge of the Supreme Court of Ukraine Lev Kyshakevych became the Head of the Council and retired judge of the Court of Appeal of England and Wales Sir Anthony Hooper became his Deputy.
The Ethics Council has set out in its rules that its first priority will be the assessment of the integrity of candidates to the High Council of Justice (HCJ) who have applied for the already announced competitions (competitions for vacant position on the HCJ under the quota of scholars, Parliament, and judges are currently ongoing).
Following the completion of competitions, the Council will begin assessing the current members of the HCJ. Such an assessment will be carried out as the filling of vacant positions progresses, taking into account the need to ensure the presence of authorized composition of the HCJ. At the same time, the Rules of the Council specify that, regardless of the number of the filled HCJ positions, the Council will start assessing the current remaining HCJ members no later than February 8, 2022.
To assess the members and candidates for the HCJ, the Ethics Council will appoint two rapporteurs, one selected among judges and another selected among international experts.
It should be recalled that the assessment of the integrity of current and future HCJ members by an independent commission with international participation is the public’s demand and one of Ukraine’s key commitments before the International Monetary Fund and the European Union.
President appoints to permanent tenure judges who did not complete qualification assessment
On December 1, the President issued a series of decrees (№ 614/2021, 613/2021, 612/2021, 611/2021, 610/2021) appointing to permanent tenure judges, the majority of whom did not pass the full qualification assessment, due to the fact that the Public Integrity Council approved opinions confirming their non-compliance with the integrity and professional ethics criteria.
Prior to the 2016 constitutional amendments, judges were appointed by the President for the initial 5 years term. The amendments provided for the appointment of a judge by the President to a permanent tenure from the outset. However, in order to be appointed to a permanent tenure, the so-called “five-year judges” had to first pass a qualification assessment.
In 2020, CPLR experts repeatedly reported that the High Council of Justice (HCJ), neglecting the requirements of the law, submitted to the President petitions for the appointment of judges who did not complete the qualification assessment (more details available in the weekly analyses for November 24-30 and December 1-7, 2020).
On November 25, CPLR, along with other CSOs, called on the President to disregard the HCJ’s submissions regarding such judges. However, 21 out of 28 judges that were appointed by the President did not complete the qualification assessment, as the opinions regarding them that were approved by the Public Integrity Council were to be considered by the plenary of the High Qualifications Commission of Judges (HQCJ). Such an opinion is an obstacle to the entry into force of the decisions of the HQCJ panels finding those judges as being in compliance with their position’s requirements.
The appointment of the mentioned judges in violation of the procedure defined by the law may call into doubt the legitimacy of their decisions and subsequently lead to the finding of violation of Article 6 of Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights (in regards to violation of the right to a fair trial by a court established by law).