Weekly analytics for 6 – 13 July 2020

Two alternative draft laws to the presidential draft law on "Judicial Reform" submitted to Parliament

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Event

On June 22, the President introduced to the Verkhovna Rada of Ukraine a draft law “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and Certain Laws of Ukraine on the Activities of the Supreme Court and Judicial Governance Bodies” (No. 3711). See weekly analysis of events of June 15-22, 2020).

On July 7, two alternative draft laws were submitted to the Parliament – No. 3711-1 (introduced by the MP Y. Yurchyshyn, Holos party) and No. 3711-2 (introduced by MPs from the Servant of the People party).

Draft law № 3711-1, in contrast to the presidential draft law, provides for:

1.  maintaining the autonomy of the High Qualifications Commission of Judges (hereinafter – HQCJ) from the High Council of Justice (hereinafter – HCJ);
2.  introduction of a mechanism to ensure the integrity of HCJ members;
3.  improvement of the institution of disciplinary responsibility of a judge by strengthening the role of inspectors in disciplinary proceedings;
4.  strengthening the role of the Public Council of Integrity (hereinafter – PCI) by giving the right to file disciplinary complaints, organizational support of the HQCJ secretariat, increasing the minimum number of votes of the HQCJ members to overcome the PCI’s conclusion.

Thus, it is proposed to return the status of the HQCJ as an independent entity in the judicial system. The Commission will independently approve its own acts, which determine the procedure for selection of judges and their assessment without any approval of the HCJ.

The HQCJ will consist of 16 members appointed by the HCJ based on the results of the competitive selection, which will be conducted by a specially created independent Competition Commission. Such a Commission will be formed on an equal basis by the Council of Judges and donors who have provided Ukraine with international technical assistance (3 members each). The HCJ will have a nominal role in the formation of this Commission, which will be limited only to the approval by the HCJ Chairman of its personal composition.

In its activities, the Competition Commission will be completely independent of the HCJ and at its own discretion will determine the procedure and conditions of the competitive selection to the HQCJ. International experts will play a crucial role in the Commission’s work as their three votes are needed to make a decision. Based on the results of the competition, the Commission will determine the winners, who will be appointed by the HCJ within 5 days. The Council has no authority to reject the recommendations of the Competition Commission.

Disputes concerning the decisions of the Competition Commission will be referred to the Supreme Court.

The draft law proposes to enshrine at the legislative level the requirement for the integrity of the HCJ members. The procedure for selecting HCJ members will be supplemented by a new stage, at which an independent Competition Commission (the same one created to select members of the HQCJ) will pre-select candidates to determine those who have the best experience, knowledge and qualities to perform the duties of HCJ members. Based on the results of the selection, the Competition Commission will provide the appointing entities with a list of candidates. The appointing entity may elect/appoint as a member of the HCJ only a person from the list of candidates approved by the Competition Commission;

In addition, the Competition Commission will check the integrity of the current members of the HCJ, based on the results of which it may make a submission for dismissal of such a member of the Council to the appointing entity. From the moment of making a decision on non-compliance of a HCJ member with the requirements of the Constitution of Ukraine and the relevant law, he/she shall be removed from office. If the appointing entity does not decide within 60 days to dismiss the HCJ member in respect of whom the submission has been received, he/she shall be removed from office until he/she is dismissed or until his/her term of office is terminated.

The draft law provides for the functioning of the HCJ inspectors’ service as an autonomous supplementary body within the secretariat. Inspectors will check the compliance of the disciplinary complaint with the requirements of the law, conduct a preliminary inspection, and when a disciplinary case is opened, they will prepare the case for consideration.

Some changes in the procedure of disciplinary proceedings are also envisaged. In particular, it is proposed to set a clear deadline for the HCJ to decide on the initiation of proceedings (30 days from the receipt of the inspector’s opinion) and to expand the range of entities who can appeal the Disciplinary Chamber’s decision by including the HCJ inspector and the complainant.

It is proposed to expand the range of powers of the HCJ, supplementing it with the right to file a disciplinary complaint against a judge, the opportunity to initiate monitoring of his/her lifestyle, ensuring full access to the Unified Register of Court Decisions and the judge’s file.

The draft law also stipulates that the HCJ’s conclusion can be overcome by only 15 votes of the HQCJ members (currently only 11 votes are required for this).

It is proposed to oblige the HQCJ secretariat to provide organizational and logistical support to the HCJ.

In addition, it is proposed to return the legislative provision on the staff number of judges of the Supreme Court of 200 judges.

Draft law No. 3711-2 provides for the following:

1.  creation of a qualification chamber as a part of HCJ with simultaneous liquidation of the HQCJ and the PCI;
2.  establishment of the Public Council of International Experts (hereinafter – PCIE) as an advisory body to the HCJ to assist in the exercise of some of its powers;
3.  renaming the Supreme Court of Ukraine with the creation of senates (by changing the name of the courts of cassation) and changing the leadership of the court.

Thus, the authors of the draft law propose to abandon the existence of the HQCJ in the judicial system. It is proposed to transfer its functions to the Qualification Chamber as part of the HCJ. This chamber will include members of the HCJ, and the HCJ itself will review the chamber’s decisions on qualification assessment.

In order to ensure the activities of the members of the Qualification Chamber, a Service of Inspectors will be established within the HCJ Secretariat, who will be able to act only on behalf of a member of the Chamber.

In addition, the HCJ itself will determine the number of judges in the courts upon submission of the State Judicial Administration, and in the Supreme Court – upon submission of the Plenum of the Supreme Court (minimum number of judges – 200).

The draft law provides for the establishment of PCIE as an advisory body to the HCJ, formed by the Council itself to assist it in determining the number of judges in the courts, the burden on judges and other issues specified in a separate provision of the HCJ. The PCIE will consist of 7 members appointed by the HCJ on the basis of proposals from international human rights organizations, which cooperate with Ukraine.

The draft law excludes any references to the HCJ from the Law on the Judiciary.

The draft law stipulates that the Supreme Court of Ukraine will change its name to the Supreme Court and will continue to administer justice as the highest court in the judiciary. At the same time, a new Chairman of the Supreme Court and Chairman of the Senates must be elected.

It is proposed to change the organizational structure of the Supreme Court, in particular, to rename the courts of cassation into the appropriate senates (for example, instead of the Administrative Court of Cassation there will be the Senate of Administrative Cases).

Judges of the Supreme Court of Ukraine will be transferred to the Supreme Court with further assessment. Assessment will be conducted by the Temporary Commission established by the HCJ including 5 retired judges of the Supreme Court of Ukraine.

In addition, the draft law proposes to remove such a requirement for incompatibility of a judge as a ban on holding positions in respect of which the lustration is carried out in accordance with the Law “On Iustration”.

CPLR assessment

Draft law No. 3711-1 largely takes into account the comments and suggestions of the CPLR experts, which were submitted to the presidential draft law No. 3711, in particular:

•  ensuring the integrity in the HCJ activities by pre-screening the HCJ candidates as well as its current members by an independent competition commission with a decisive role of international experts;
•  formation of a new composition of the HQCJ on a competitive basis outside any control of the HCJ by an independent competition commission with a crucial role of international experts.
•  preservation of the independence of future HQCJ from the “unreformed” HCJ.

In addition, given the influence of the District Administrative Court of Kyiv on the activities of the previous composition of the HQJC (see weekly analyzes of May 13-20, 2019, June 10-17, 2019), the CPLR experts support the decision to transfer cases with the participation of the competition commissions under the jurisdiction of the Supreme Court;

Draft law is in line with Ukraine’s commitments to the International Monetary Fund (see weekly analysis of June 8-15, 2020).

Concentration of all personnel powers in relation to judges with the HCJ envisaged by the Draft Law No. 3711-2 will make it impossible to perform these powers qualitatively, as even now the HCJ is not an effective body due to the heavy workload (including disciplinary issues). This idea is also unjustified given the lack of proposals to implement integrity standards in its activities.

Establishment of the PCIE as an advisory body to the HCJ will have no practical significance, as the HCJ is still the beneficiary of international technical assistance projects that provide expert and other support to its activities.

Draft law creates risks for the administration of justice by the current judges of the Supreme Court, as there are no provisions to transfer them to the Supreme Court of Ukraine, which will be renamed into the Supreme Court. The current judges of the Supreme Court did not pass the competitive selection to the Supreme Court of Ukraine, were not included in the staff of this court and are currently in a legal relationship with another legal entity – the Supreme Court, which, according to the authors of the draft law, will cease to exist.

Draft law No. 3711-2, initiated by members of the Servant of the People faction, contradicts the election program of the same political party (“we will restart the High Council of Justice … strengthen public control over the judiciary”), Ukraine’s committment to the International Monetary Fund. The draft law will contribute to the politicization of the justice system.

Based on the results of the analysis, it can be concluded that Draft Law No. 3711-1 best meets the current challenges of reforming the justice system, relevant international obligations of Ukraine. The other two draft laws (presidential and the ones prepared by representatives his faction), alternative in content, will have a negative effect on the functioning of the justice system and its independence.

 

Contrary to the Constitution, the Parliament will try to subordinate the financial investigation body to the President

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Event

Last week, the text of the draft Law on the Economic Security Bureau appeared on the website of the Verkhovna Rada (registration No. 3087-d of July 2, 2020). The main author of the draft law is the Chairman of the Committee on Finance, Tax and Customs Policy Danylo Getmantsev (Servant of the People faction). Committee on Finance, Tax and Customs Policy has been appointed the main committee for the draft law.

According to the explanatory note, the draft law is designed to eliminate the tax police, optimize the structure and number of bodies involved in combating crimes in the economic sector, eliminate duplication of their functions and establish the Economic Security Bureau to prevent, detect, stop, investigate and disclose criminal offenses referred by law to their jurisdiction.

In other words, the draft law proposes to create a new pre-trial investigation body.

CPLR assessment

The draft law is voluminous, detailed and can be analyzed from a number of perspectives. At the same time, it contains a number of fundamental shortcomings, and without their elimination, further consideration of the draft law is highly questionable.

Regarding the status of the new pre-trial investigation body

Economic Security Bureau is proposed to be established as a state law enforcement body (part one of Article 1). However, such a proposal has no legal, regulatory or other basis. Among other things, this is inconsistent with the provisions of the Constitution.

In its conclusion of 16 December 2019 No.7-v/2019, the Constitutional Court noted that the Constitution does not provide for the establishment of bodies with the status of a “state law enforcement body”.

In addition, having analyzed the status of NABU and the SBI, the Court emphasized that these bodies had a similar function: they were required by law to prevent, detect, stop, investigate and disclose criminal offenses under their jurisdiction. The Constitutional Court further recalled that according to the Constitution, measures to combat crime are carried out by the Cabinet of Ministers.

In other words, the scope of activities of the NABU and the SBI are also similar – they take measures to combat crime. Although the Constitutional Court has not touched upon the question of their powers, there is no doubt that they are almost identical.

Earlier, in its decision of 13.06.2019 No. 5-r/2019, the Court stated that the establishment of an independent state body, which by function, scope, powers has the characteristics of a central executive body, but is not subordinate to the Cabinet of Ministers and does not belong to the system of executive bodies, is not in accordance with the Constitution.

As mentioned above, the Economic Security Bureau is established to prevent, detect, stop, investigate and disclose criminal offenses under the law of their jurisdiction. That is, by its functional purpose, scope and powers, the Economic Security Bureau is a typical law enforcement agency (pre-trial investigation body, like NABU or SBI) and, accordingly, has characteristics of an executive body. Therefore, the Economic Security Bureau can be established only with the status of a central executive body.

It should be added that the status of “state law enforcement agency” is a completely artificial legal structure, designed to perform only one function – to remove the Bureau of Economic Security (as well as NABU or SBI) from the executive branch and subordinate the body to the President.

At the same time, as the Constitutional Court noted in the above-mentioned conclusion, the situation of pre-trial investigation bodies being even under the indirect subordination of the President (through the appointment of their heads, in particular) threatens the independence of these bodies and leads to concentration of executive power with the President. In turn, this disrupts the balance of constitutional powers between the President and the Cabinet of Ministers and effectively creates a parallel executive branch subordinate to the President. As a result, such a concentration of power weakens the constitutional guarantees of rights and freedoms. At the same time, the separation of powers is the main means and indispensable condition for preventing the concentration of power, and therefore an instrument against its abuse for the adequate realization of human rights and freedom.

Regarding the expansion of the powers of the President and the Verkhovna Rada

As the CPLR experts have repeatedly reminded, the Constitution establishes an exhaustive list of powers of the President and the Verkhovna Rada, without any possibility of expanding these powers by other regulations. This position is reflected in a number of decisions of the Constitutional Court: of 10.04.2003 No. 7-rp/2003; of 25.12.2003 No. 22-rp/2003; of 07.04.2004 No. 9-rp/2004; of 16.05.2007 No. 1-rp/2007; of 08.07.2008 No, 14-рп/2008; of 02.10.2008 No.19-rp/2008; of 08.10.2008 No. 21-rp/2008; of 07.07.2009 No. 17-rp/2009; of 15.09.2009 No. 21-rp/2009; of 17.12.2009 No. 32-rp/2009; of 10.06.2010 No. 16-rp/2010; No. 5-r/2019 of 13.06.2019, etc.

Nevertheless, the draft law proposes to give the President and Parliament a number of additional powers:

President

•  forms the Bureau (part four of Article 1);
•  approves the structure of the Bureau (part one of Article 12);
•  appoints and dismisses the Director of the Bureau (parts one and twelve of Article 13);
•  appoints three persons who will be members of the commission for holding the competition for the position of Director of the Bureau (paragraph one of the third part of Article 13);
•  ensures activities and information about the activities, video and audio recording and broadcasting, as well as provides other organizational and technical support to the competition commission for the position of Director of the Bureau (parts six, seven, ten and eleven of Article 13);
•  may declare the work of the Bureau unsatisfactory as a result of the report of the Director, which results in the dismissal of the latter (paragraph ten of part five of Article 14, part four of Article 32);
•  approves the regulations on the Public Control Council at the Bureau and the procedure for its formation (part one of Article 31);
•  hears, receives and considers the report of the Director on the activities of the Bureau for the previous year (parts one and three of Article 32);
•  approves the procedure and decides on conducting an independent evaluation (audit) of the effectiveness of the Bureau’s activity (part seven of Article 32);

Verkhovna Rada

•  appoints three persons who will be members of the competition commission for the position of Director of the Bureau (paragraphs two and three of the third part of Article 13);
•  may declare the work of the Bureau unsatisfactory as a result of the report of the Director, which results in the dismissal of the latter (paragraph ten of part five of Article 14, part four of Article 32);
•  hears, receives and considers the report of the Director on the activities of the Bureau for the previous year (parts one and three of Article 32).

Therefore, the submitted proposals (as well as any other proposals) to expand the powers of the President and the Verkhovna Rada are unconstitutional.

Given the fact that the Economic Security Bureau has the characteristics of a central executive body and should be subordinated to the Cabinet of Ministers, the above aspects should be attributed to the Cabinet of Ministers. At the same time, some of them should be attributed directly to the director of the Bureau (for example, in terms of approving the structure of the Bureau and the provisions on the Public Control Council and the procedure for its formation).

In addition, taking into account the ordinary constitutional status of the Economic Security Bureau, it is expedient to extend to it the procedure for appointing its head (in this case, the director), which is typical for central executive bodies. Currently, in accordance with the Law of Ukraine “On Central Executive Bodies”, candidates for appointment to the position of the head of the central executive body are submitted to the Cabinet of Ministers by the Commission on Senior Civil Service. Submission of the application is preceded by a competition held in accordance with the legislation on civil service.

Draft Anti-Corruption Strategy for 2020-2024: what are we fighting against?

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Event

As previously reported, on June 23, the National Agency for the Prevention of Corruption submitted for public discussion a draft Anti-Corruption Strategy for 2020-2024 – the main policy document in the area of anti-corruption policy.

In addition to the general provisions, the draft contains four more sections, dedicated to improving the prevention of corruption, prevention of corruption in priority sectors, ensuring the inevitability of responsibility, as well as the mechanism for implementing and evaluating the results of the Anti-Corruption Strategy implementation. Each of the sections consists of a number of subsections.

CPLR assessment

In their Opinion on the draft Anti-Corruption Strategy sent to the National Agency for the Prevention of Corruption on July 10, the CPLR experts noted that in general the document gives the impression of a balanced and thoroughly developed document, which could have a serious positive effect on the situation with corruption in Ukraine in case of its adoption and implementation. At the same time, it has a number of shortcomings, some of which can significantly reduce the potential of the Anti-Corruption Strategy.

The first of such major shortcomings is the lack of definition of the key concept – “corruption”. First, the Law “On the Prevention of Corruption” reduces it to the use of official powers only for illicit gain, as well as “bribery” – and this definition of “corruption” is extremely simplistic, as it does not cover some actions that are directly recognized by the Criminal Code of Ukraine (CC of Ukraine) as corruption crimes (for example, actions provided for in Articles 354, 365-2, 368-4, 369-2, 369-3). Secondly, the CC of Ukraine (Article 45) provides a list of corrupt criminal offenses that is not in accordance with the Law “On the Prevention of Corruption”. On the one hand, this list includes actions that are not corruption offenses (Articles 210, 320, etc.)., and on the other hand, it does not recognize such offences as smuggling, raidership, insiderism etc, committed by an official for the purpose of personal enrichment as corruption offenses.

In consequence, in the main program document in the area of anti-corruption policy and in other anti-corruption laws, the state directly demonstrates its uncertainty as to what it actually prevents and counteracts.

In fact, corruption in the legal sense is a phenomenon characterized by specific features that distinguish it from similar phenomena: 1) it is a combination of offenses for which criminal or disciplinary, as well as civil liability is provided; 2) the manner of committing these offenses is the use of resources in the form of power, official authority or a certain position; 3) the subjects of these offenses are: a) a group of persons who are endowed with power, official authority or have a position that allows them to use such power, authority or position to obtain illegal benefit in their own or third parties’ interests, or b) persons who influence this group of persons for the same purpose; 4) depending on the specified subject, the illegal benefit is: a) the subject or b) the means of committing any of these offenses.

Availability of such a definition would allow to clearly define the limits of competence of specialized anti-corruption bodies, to organize statistical data, to determine the appropriate methodology for preventing and combating corruption and to separate the secondary aspects.

The second significant shortcoming of the draft Anti-Corruption Strategy is that the areas of justice and internal affairs are not defined as the priority ones. The problem here is that corruption and corruption-related offenses are too often committed by judges, prosecutors, lawyers, law enforcement officials, i.e. those who are supposed to maintain law and order. Many of these people can not demonstrate exemplary integrity, and the main reason for this there is unreasonably wide discretion and low personal responsibility for their decisions and actions and omissions.

The third major drawback of the draft document is the lack of attention paid to the problem of openness of government, especially the highest public authorities, achieving transparency of the budget process, public finances and other public property (land, real estate, enterprises, etc.), as well as all objects of people’s property, which still continue to be plundered on a large scale.