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Weekly analytics for 30 November — 6 December

06.12.2022

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. 


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. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua.



Reform of civil servants remuneration: what will the draft law № 8222 change?


Event

On November 23, 2022, the Verkhovna Rada of Ukraine registered the draft law № 8222 “On Amendments to the Law of Ukraine “On Civil Service” regarding the implementation of uniform approaches in remuneration of civil servants based on the jobs classification”.

The draft law enshrines the principle that the remuneration of a civil servant will consist of a fixed salary (base salary, seniority bonus, rank bonus, or monetary allowance paid with the annual basic paid leave) and variable salary (bonuses based on the results of annual assessments of performance, monthly and quarterly bonus, or compensation for excess workload and for a vacant position).

Salaries will be established based on the jobs classification in accordance with the Catalog of typical civil service positions and the criteria for assignment to such positions, considering the comparison of the salary level for typical civil service positions with the private sector in Ukraine.

CPLR’s assessment

CPLR’s experts positively assess the civil servants remuneration reform that strengthens the role of the salary’s permanent component and efforts to get closer to the “70/30” formula, where 70% of the salary is its permanent part. The remuneration reform will help increase the prestige of civil service and attract highly qualified specialists. The catalog of typical civil service positions and criteria for assignment to such positions was tested in a number of state bodies.

At the same time, the draft law needs to be revised with regards to the following issues.

We believe that monthly bonus as a variable remuneration component should be abandoned. Variable remuneration depends on a civil servant’s personal contribution to the overall work result of the state body, it is a reward for proactive work, timely and high-quality task performance and/or extra task performance. Assuming, objectively, that such grounds for paying a monthly bonus will not occur every month, this type of premium is acceptable. Yet, if it regards the payments on a monthly basis, then the monthly bonus will actually “turn” into a permanent salary component, which contradicts the substance of civil service remuneration reform. We support such types of bonuses as quarterly bonuses and bonuses based on the results of annual performance evaluation.

We also draw attention to the fact that the rank allowance is actually an allowance for “years of service”, because each subsequent rank within the corresponding job category is assigned to a civil servant every three years, taking into account the results of assessment of their official activity. A civil servant may be assigned a higher rank in advance for his/her special achievements or for performance of particularly responsible tasks.

The question regarding the approach to distinguishing between state bodies by types within one jurisdiction (in contrast to by levels, as per current version of this provision) also raises questions. In our opinion, recognizing the authorities whose jurisdiction extends to the entire territory of Ukraine as a state body is a significant mistake. For example, this includes the Office of the Verkhovna Rada of Ukraine, the Secretariat of the Cabinet of Ministers of Ukraine, the offices (secretariats) of the National Security and Defense Council of Ukraine, the Central Election Commission, the Accounting Chamber, the Constitutional Court of Ukraine, the Supreme Court, the Office of the Prosecutor General, or the Ombudsman. They are not state bodies, but are bodies that conduct organizational, auxiliary, and other support for the relevant state bodies’ activities, and their jurisdiction does not go beyond the boundaries of these bodies.

The draft law replaces “central executive power bodies with a special status” with “state bodies with a special status” without specifying which bodies are covered.

The “legitimization” of the performance of state policy formation function in one or more areas by those bodies whose activities are directed and coordinated directly by the Cabinet of Ministers of Ukraine is also threatening. Such functions should be performed exclusively by the ministries.

Some definitions contained in the draft law (for example, “equal positions”) should be also revised.


The elements of the crime of torture brought into line with international standards


Event

On December 1, the Parliament adopted the government’s draft of Law №5336 of 05.04.2021 “On Amendments to the Criminal Code of Ukraine on Criminal Liability for Torture” as a whole.

The adopted Law is aimed at bringing the provisions on torture and other norms of the Criminal Code of Ukraine into compliance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, as well as at fulfilling the requirements of the EctHR’s decisions (group of cases “Kaverzin vs. Ukraine”, which includes 87 cases). The main inconsistency lied in the existence of statutes of limitations for prosecution for this crime; a disposition that is not in line with generally accepted definition in international documents, in particular, the absence of a special entity – authorized government body’s official, because torture is usually committed during as violation of human rights by such persons.

The key provisions of the adopted Law include:

  1. The statute of limitations for criminal prosecution for torture is eliminated (amendments to Article 49 of the Criminal Code of Ukraine).
  2. It is not possible to apply release from serving the sentence due to expiration of the statute of limitations for the execution of a conviction for torture (amendments to Article 80 of the Criminal Code of Ukraine).
  3. New version of disposition of Art. 127 of the Criminal Code of Ukraine, in particular, a special entity – state representative, including that of foreign state’s, is added to Part 3.
  4. “State representative” means not only a government body’s official, but also a third party who, by its will or acquiescence, take such actions to influence a tortured person.

CPLR’s assessment

  1. In the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (1984), “torture” is defined specifically as the influence of a state representative, “when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.
  2. Since 2008, the Criminal Code of Ukraine provided for a generic entity of a crime envisioned by in Art. 127, despite the fact that torture is committed by representatives of the state. This inconsistency with international standards was widely criticized by experts, just like the errors with qualifications under Art. 127 and Part 2 of Art. 365 of the Criminal Code of Ukraine, which was eventually amended in the adopted Law.
  3. At the same time, a dual entity is preserved – both generic and special; that is, torture can be committed by both civilians and state representatives. The practice according to which the majority of sentences under Art. 127 of the Criminal Code of Ukraine were previously adopted specifically with regards to civilians, remains debatable, because there is a position that civilians (not endowed with authority) can inflict beatings, physical injuries, etc., but not torture.

From this perspective, the proposal of the authors of the draft of the new Criminal Code, which provides for the following elements of the torture crime, appears more suitable:

Article 9.4.3. Torture

A public official who caused pain or suffering to victim by using violence or threats for the purpose of:

1) forcing the victim or another person to perform actions contrary to their will,

2) receiving information or confession from the victim or another person,

3) punishing the victim or another person for actions committed by him/her or another person or in the commission of which the victim or another person is suspected, or

4) intimidating or discriminating against the victim or another person,–

is guilty of a crime of the 3rd degree.

At the same time, based on the “interpretation of terms” (Article 1.2.1), torture is the intentional infliction of severe pain or suffering, physical or mental, on a person who is in custody or under the control of the accused; but pain or suffering resulting solely from, inherent in, or incidental to lawful sanctions shall not be considered as torture.

Thus, the adopted amendments are clearly a step forward and address most of the regulatory issues existing in the area of prosecution for the torture crime.

First of all, such problems lied in the absence of a special entity – the state’s representative – in the disposition of the article of the Code, as well as the presence of statutes of limitations for prosecution for torture and the possibility of release from sentence due to the expiration of the statute of limitations for the execution of a conviction

At the same time, it is advisable to consider the exclusion of civilians’ responsibility for torture, to avoid errors in qualification.


Relevant authority conducting disciplinary proceedings against prosecutors summarized the performance results of the year


Event

At the beginning of November 2022, a year has passed since the resumption of activity of the relevant body charged with disciplinary proceedings (hereinafter – Commission). The activity of this body (the former Qualification and Disciplinary Commission of Prosecutors) was suspended by Law No. 113 -IX “On amendments to certain legislative acts of Ukraine regarding priority measures for the reform of prosecutor’s offices” for almost two years.

The Commission is a collegial body that, in accordance with the prescribed powers, determines the level of professional training of persons who have expressed intention to be appointed to the position of a prosecutor and resolves the issue of disciplinary responsibility, transfer, and dismissal of prosecutors from office (Part 1 of Article 73 of the Law of Ukraine “On the Prosecutor’s Office”).

According to the information published on the website of the Commission, “the main task of the Commission at this stage consists of the resumption of activity and its further institutional strengthening as an effective and independent body aimed at providing the prosecutor’s office with professional personnel who have an impeccable reputation and to resolve issues related to the disciplinary responsibility of prosecutors.”

CPLR’s assessment

The Department of Organizational Support (Secretariat) of the relevant body conducting disciplinary proceedings has prepared an annual report dedicated on its activity. The key provisions of the report are as follows:

  1. For the first year of operation, the Commission adopted 1,283 decisions (including 821 on the selection of candidates for the position of prosecutor, 236 on disciplinary responsibility and dismissal of prosecutors from office; amdn226 – on other issues).
  2. According to the Decision of the Commission of March 9, 2022 № 1зп-22 “On the peculiarities of activities of the relevant body conducting disciplinary proceedings under martial law” and “Procedure for holding a meeting of the relevant body conducting disciplinary proceedings in video conference mode for the period of martial law” (approved by the Commission’s decision №5зп-22 of March 24, 2022) under the conditions of martial law, the Commission introduced electronic document workflow and the possibility of remote participation in a meeting in case of valid reasons for remote participation.
  3. Commission conducted a significant amount of activity for the preparation and selection of district prosecutors. First of all, by its decision № 11зп-21 of October 26, 2021, the Regulations on the procedure for consideration of issues and preparation of materials regarding the selection of candidates for the vacant (temporarily vacant) position of prosecutor of the district prosecutor’s office” was approved (it should be noted that the CPLR experts submitted their proposals and participated in the discussion with members of the Commission and the Secretariat). The Commission also approved a number of other documents related to the selection of prosecutors (see p. 9).
  4. Disciplinary responsibility:
  • recommended the sample of disciplinary complaint was approved (decision of the Commission of October 26, 2021 № 7зп-21), published on the official website of the Prosecutor General’s Office;
  • automated system for distribution of disciplinary complaints is operating in the Commission to address the issue of initiating the disciplinary proceedings (implemented by the Commission’s Decision № 8зп-21 of October 26, 2021);
  • 903 disciplinary complaints were received by the Commission during the year (of which 591 were rejected from initiating the proceedings, and 282 had the proceedings initiated; for the remaining 30, the issue of initiating the proceedings is pending);
  • 105 decisions related to bringing prosecutors to disciplinary responsibility and imposing disciplinary sanctions were issued (the most common reason for bringing to responsibility remains non-performance or improper performance of official duties (65 decisions) and systematic or one-time gross violation of the rules of prosecutorial ethics (41 decisions)), as well as 110 decisions on closing disciplinary proceedings;
  • 59 decisions of the Commission or the former QDCP were appealed to court, of which 52 are currently pending. The reason for such lengthy term of consideration of complaints against the Commission’s decisions is the transfer, in 2020, of exclusive jurisdiction related to cases of appeals against acts, actions, and inaction of the Commission from the Supreme Court to the District Administrative Court of Kyiv, which occurred after the adoption of Law № 460-ІХ.

The full text of the report is available here.

We would like to remind that in 2019, CPLR experts prepared a study on the practice of bringing prosecutors to disciplinary responsibility by the Qualification and Disciplinary Commission of Prosecutors during 2017-2018. The report is available to download using this link.

As of now, the analysis of disciplinary practice of the relevant body conducting disciplinary proceedings in  2021-2022 has not been conducted; therefore, it is difficult to provide a meaningful assessment of the quality of the work of the new (renewed) body. At the same time, the information presented in the report demonstrates full resumption of activity of this body charged with ensuring the operation of the prosecutor’s office. Simultaneously, an anonymous survey of more than 2,000 prosecutors demonstrates a high level of trust in Commission.

Currently, it can be stated that the regrettable mistake of the reform of the prosecutor’s office, which involved the two-years suspension of the QDCP’s work, has been resolved, and there is an urgent need for a comprehensive study of the disciplinary practice regarding prosecutors to facilitate the Commission’s further development.