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Weekly analytics for 8 – 14 February 2022

15.02.2022

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.

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.

The Venice Commission published an opinion on the draft law on local referendum

Event

On February 10, the European Commission for Democracy through Law (Venice Commission) published an urgent opinion (CDL-PI(2022)001-e) on the Draft Law on Local Referendum (Reg. № 5512) of May 19, 2021, prepared jointly with the OSCE Office for Democratic Institutions and Human Rights (ODIHR). The opinion contains an assessment of the conformity of the Draft Law № 5512 with international standards, in particular with the Revised Guidelines on the Holding of Referendums, as well as the 1990 OSCE Copenhagen Document.

CPLR`s assessment

Overall, the Venice Commission and the ODIHR positively assessed the draft law on the local referendum, both in terms of its content and the drafting process. The opinion noted the inclusive public debate (including conducting 96 regional consultations with civil society organizations and other stakeholders that took place between June and October 2021), which increased stakeholders’ understanding of the process and enhanced confidence in the draft law. Further, the draft itself was characterized as “a major step towards the conduct of local referendums following the revocation of the first Law “On the All-Ukrainian and Local Referendums”, which caused a legal vacuum in regulating the institution of local referendums”.

The opinion also notes the following positive aspects of the draft law:

    • detailed provisions on the procedure to be followed after suspension of the local referendum process due to a state of emergency and after it has been lifted;
    • verification of all signatures of voters who supported the initiative to hold a local referendum, and not of just a sample of signatures;
    • lack of requirements to verify the rationale of the positions of the initiative group, political parties, and CSOs (as a condition for their registration by the entities charged with conducting the local referendum process), as well as of requirements for approval of campaign materials;
    • the possibility for the initiative group to correct technical deficiencies in its submitted documents;
    • non-automatic registration of voters who are recorded in the voter list as having permanent physical disability to vote at home;
    • the possibility for official observers to observe all stages of the local referendum process, including the collection of signatures and the referendum campaign.

Moreover, the Venice Commission and the ODIHR provided key recommendations for improving the draft law, as follows:

    • to clarify the provisions on exclusion from the subject matter of the local referendum of “certain” powers of executive authorities granted to local self-government bodies by law (delegated powers);
    • to simplify certain extremely burdensome procedures, and to make the text clearer to voters and to the authorities involved in local referendum processes;
    • to remove the threshold of at least 50 percent of voters from the number of voters included in the voter lists necessary for the validity of a local referendum;
    • to revise the rules on conducting repeat referendums by making them more flexible;
    • to supplement a number of restrictions on the subject matter of a local referendum (in particular, paragraph 2 of the second part of Article 3) with references to international law;
    • to improve the rules of financial oversight by the local referendum territorial commission and the National Agency on Corruption Prevention in the conduct of the campaign by the entities involved in the local referendum process (paragraph 76).

At the same time, the Venice Commission and the ODIHR had a negative response to the provisions of the draft law that do not allow citizens of a state recognised by the Verkhovna Rada “as an aggressor state or an occupying power” to be registered as international observers during a local referendum, and recommend to review these provisions. However, in CPLR experts’ opinion, it is not appropriate to implement such recommendations given the ongoing aggressive policy of the Russian Federation against Ukraine and the interests of national security.

HCJ members promise to resign in response to the start of assessment by the Ethics Council

Event

On February 9, the Ethics Council announced the launch of integrity vetting of the current High Council of Justice (HCJ) members. In response, the HCJ accused the Ethics Council of violating the law regarding the procedure and sequence of vetting, and reported that this will encourage the majority of the HCJ members to resign early.

Currently, no official decisions on the removal of current Council members have been published on the HCJ’s official website, nor is it known whether such issues were on the agenda.

CPLR’s assessment

The Ethics Council began its activity in November 2021 with the selection of candidates to the HCJ who had applied for the previously announced competitions. It was then supposed to proceed to the vetting of the sitting HCJ members. Currently, the selection process is nearly complete, as the Council has announced that interviews with candidates are scheduled for late February-early March of this year; according to the law, this is the final stage, following the results of which a list of candidates recommended appointment is compiled.

However, the law provides for only six months to vet the integrity of the current HCJ members (byuntil early May of this year). The Ethics Council, in its rules of proceedings, stated that the full vetting of the HCJ members will begin no later than February 8, which leaves the Council three months to complete the vetting.

Thus, in announcing the launch of vetting of the HCJ members, the Ethics Council acted on the basis of, and within, the law and its own regulations. It did not violate the previously established sequence, according to which the candidates must be evaluated first, after which the Council can move on to the HCJ members. The HCJ’s accusations that the Council violated the law are without ground because:

    • setting the procedure and sequence of vetting of the HCJ members by the law is the exclusive authority of the Ethics Council;
    • the law does not specify the sequence, but only states that the assessment should be conducted taking into account the HCJ’s ability to exercise its The fact of initiating the vetting does not in any way affect the authority of any member of the HCJ, as he or she is removed from office only once the Ethics Council makes a justified recommendation concerning removal.

According to the CPLR experts, the launch of the vetting for current HCJ members by the Ethics Council now rather than, for example, in the last month of the statutory deadline, will ensure the comprehensive nature of the review and allow the HCJ members to provide exhaustive explanations concerning all controversial issues identified by the Ethics Council. Moreover, any vacancies on the HCJ will continue to be filled during the vetting (unless authorized entities sabotage the relevant appointments). Instead, the conduct of the HCJ members appears to be blackmail and a way to avoid integrity review. In case of voluntary resignations by the HCJ members, its lack of authority will be the result of the HCJ’s own decision.