Weekly analytics for 7 – 13 September 2021
Weekly analytics 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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The law on administrative procedure must be adopted immediately
On September 10, a working meeting on the draft law #3475 «On Administrative Procedure» was conducted at the Verkhovna Rada’s Committee on State and Local Self-Government with participation of Ukrainian MPs, representatives of the SIGMA Program, the Cabinet of Ministers of Ukraine, the EU4PAR project, the Centre of Policy and Legal Reform, and other experts. Also present at the meeting were Frank Paul, a representative of support group for Ukraine in the EU, and Gregor Virant, Head of the SIGMA Program. The subject of the meeting was consideration of proposals regarding this draft law that were submitted by the Head of the Verkhovna Rada D. Razumkov, and an MP from the «Servant of the People» faction D. Hetmantsev. Relevant proposals were discussed in detail at the working meeting. Following the discussion, it was decided not to return for a new consideration of these proposals within the relevant parliamentary committee, but instead to support some of them during hearing at the parliamentary floor and during technical and legal revision of the draft law. It was taken into account that the relevant parliamentary committee has already completed its work on this draft law before the second reading and recommended it for adoption. Furthermore, in-depth discussion of submitted proposals led to the conclusion that there is no urgent need to add these revisions to the text of the draft. In essence, the majority of them are already reflected in various provisions of the draft law, and some of proposals are not significant.
The CPLR’s assessment
The CPLR urges the speediest possible adoption of the draft law # 3475 in second reading. After all, Ukrainian society has been waiting for its adoption for over 20 years. Ukraine remains the only European country that does not have a law on general administrative procedure. The draft law meets the best international standards and each of its provisions has undergone a detailed discussion within the working group of the relevant parliamentary committee. The draft law received a positive assessment from the SIGMA Program. The European Union also looks forward to adoption of this law by Ukraine. Moreover, after the adoption of this Law, the EU is ready to provide further non-repayable financial support for public administration reform in Ukraine. However, this assistance is threatened due to delays with the adoption of the draft law# 3475 in second reading and in general. Therefore, there is no reason not to submit this draft law to the full parliament’s consideration as soon as this month.
The Council of Judges freezes cleansing and renewal of the Higher Council of Justice
On September 10, Ukraine’s international partners delegated their representatives to the Competition Commission for the Selection of the High Qualification Commission of Judges (HQCJ) members and the Ethics Council, in compliance with requirements of Laws #1629-IX (on relaunching the competition to the HQCJ) and #1635-IX (on the reform of the High Council of Justice).
On September 13, the Council of Judges (CJU) delegated three representatives to the Competition Commission. At the same time, the CJU refused to delegate its representatives to the Ethics Council, despite the availability of four highly qualified candidates. The voting resulted in 16 members of the CJU not supporting any candidate. At the same time, by a majority vote of those present, the CJU decided to:
- support the HCJ’s petition to the Plenum of the Supreme Court regarding unconstitutionality of certain provisions of the Law №1635-IX;
- submit a proposal to the persons entitled to initiate legislation on eliminating certain shortcomings of legislation governing the election of the Ethics Council;
- entrust the Head of the CJU with developing a document that will govern the procedure for submitting proposals regarding candidates to the Ethics Council under the CJU’s quota (during the meeting, it was discussed that such a document will be considered as soon as possible).
A few hours after the CJU’s meeting, the President stated: «Any illegal action aimed at blocking judicial reform will be immediately assessed and repelled. I will not allow judges who impede the reform and cleansing of the judiciary to deprive Ukrainians of the right to justice. The judges who want to work in a transparent system must have full support». Regarding the failure to comply with the law by the CJU, a working meeting is scheduled at the Office of the President of Ukraine for Thursday, October 16, with the participation of heads of judicial self-governance authorities, parliament’s representatives, and G7 ambassadors.
The CPLR’s assessment
- Regarding the competition for the HQCJ
The next stage of the implementation of the Law #1629-IXshould be the appointment of the Head (or an acting Head) of the HCJ from among candidates recommended by the CJU and international partners, which is to occur within five days from the date on which the relevant recommendations were received. In case such an appointment does not occur, the first three candidates from the CJU list and the list of international and foreign organizations will be deemed appointed.
The Competition Commission will be able to become operational when at least four of its members (out of six) are appointed, two of whom must be proposed by international and foreign organizations. The competition for the HQCJ must be announced within 30 days from the date of the first meeting of the Competition Commission.
At the same time, CSOs uncovered circumstances regarding at least two candidates (E. Mezentsev and I. Mishchenko) delegated by the CJU that may indicate the candidates’ failure to meet the integrity criteria.
- Regarding the reform of the HCJ
The CJU’s refusal to submit its representatives to the Ethics Council blocks the establishment of this council, and therefore all selection procedures for new members of the HCJ (currently, the competitions for positions of HCJ members nominated by the Verkhovna Rada and scholars are scheduled), as well as integrity assessments of current HCJ members.
As a reminder, integrity assessment of current and future members of the Council conducted by an independent commission with international participation has been a particular public demand and one of Ukraine’s key obligations before the International Monetary Fund and the European Union. Moreover, the Venice Commission stressed back in May that «a judicial reform which does not tackle the functioning of the HCJ and the integrity of its members is doomed to fail».
The stalled situation with fulfilling these commitments is blocking the progress in accomplishment of Ukraine’s European integration aspirations.
According to the CPLR’s experts, the CJU had no valid reason to refuse to delegate judges or retired judges to the Ethics Council, given that there were a sufficient number of candidates who met the requirements of the transitional provisions of the relevant law. If the CJU continues to block judicial reform, it should be removed from the process of formation of the Ethics Council.
For more information regarding the Laws #1629-ІХ and #1635-ІХ and their implementation, please see weekly analysis by the CPLR’s experts for July 13-19, 2021.