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Weekly analytics of the Centre of Policy and Legal Reform 12 — 18 July, 2022

20.07.2022

Political Points 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.

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 Competition for the Selection of Members of the High Qualification Commission of Judges Has Been Resumed


The Competition for the Selection of Members of the High Qualification Commission of Judges Has Been Resumed

Event

On July 13, the Competition Commission for the Selection of Members of the High Qualification Commission of Judges (hereinafter — the VKKS) held a meeting to announce the restoration of the competition for selecting members of the VKKS. In addition, the procedure for conducting the competition was partially changed, in particular:

the call for submitting applications is set from 15 July to 22 August 2022 (the corresponding stage was supposed to end on 4 March 2022, but this was interrupted by the invasion of the Russian Federation, active hostilities and the temporary suspension of the work of the Competition Commission). At the same time, applications submitted by candidates earlier are considered valid;

the procedure for submitting an electronic declaration and a criminal record certificate has been simplified. Given the existing restrictions, the candidate only needs to submit a statement about the fact and date of submission of the electronic declaration to the National Agency for the Prevention of Corruption and a statement about the absence of a criminal record and criminal prosecution;

general ability and IQ testing will not be conducted.

 

Opinion of the CPLR 

The restoration of the competition to the VKKS is an important step on the way to full-scale judicial reform. As previously noted by the experts of the CPLR, the completion of the selection of candidates for the VKKS is one of the conditions for granting Ukraine the status of a candidate for membership in the European Union (detailed in the weekly analysis of 14-20 June 2022).

At the same time, to ensure trust in the results of the competition, the transparency of its conduct should be provided. During the meeting, the members of the Competition Commission emphasized that: “in this difficult time, the Competition Commission recognizes its duty to do everything possible to continue the competition for the positions of members of the VKKS on the basis of impartiality, transparency, professionalism, independence, and integrity”. This gives hope that the required level of publicity will be ensured during the selection of members of the VKKS; in particular, interviews with the competition participants will be broadcast.


President Removed the Head of Security Service from Duties Performance


Event

On 17 July 2022, the President signed a Decree No. 499/2022 “On the Removal of I. Bakanov from the Duties of the Head of the Security Service of Ukraine”. According to the decree, the President removed I. Bakanov from performing his duties as the Head of the Security Service of Ukraine under Article 47 of the Disciplinary Statute of the Armed Forces of Ukraine, approved by the Law of Ukraine of 24 March 1999 No. 551-XIV.

Article 47 (sections 1 and 2) of this Statute provide that non-performance (improper performance) of official duties, which led to human casualties or other serious consequences or created a threat of such consequences, is the grounds for removing such a serviceman from the performance of official duties; the decision to remove a serviceman from duty is taken by the direct commander (chief).

On July 18, the President signed another decree No. 504/2022 “On the Temporary Performance of the Duties of the Head of the Security Service of Ukraine”, according to which the First Deputy Head of  the Security Service of Ukraine, V. Maliuk, is the Temporary Acting Head of the Security Service of Ukraine.

Opinion of the CPLR 

The Head of the Security Service of Ukraine (SBU) is appointed and dismissed by the Verkhovna Rada (VRU) at the nomination of the President under Article 85 (section 1, subsection 12-1) and Article 106 (section 1, subsection 14) of the Constitution of Ukraine. The President lacks the constitutional authority to appoint or dismiss the Head of the SBU independently. In addition, neither the Constitution nor the relevant Law “On the Security Service of Ukraine” (dd. 25 March 1992 No. 2229-XII) provides for the possibility of suspension or removal of the Head of the SBU by the President as a form of disciplinary responsibility towards this official. 

On the one hand, the Statute of the Armed Forces of Ukraine does apply to military personnel, in particular, of the SBU (preamble to the Statute); however, on the other hand, the grounds for disciplinary liability provided by this Statute do not apply to such political positions as the Head of the SBU. From the legal point of view, it appears that the President actually dismissed the Head of the SBU, calling this process “removal” — a term the relevant legislation does not use at all — contrary to the constitutional procedure, which requires the mandatory involvement of the Verkhovna Rada in this process.

The powers of the President are determined exclusively by the Constitution under Article 106 (section 1, subsection 31), which is also confirmed by the interpretation practice of the Constitutional Court regarding the Constitution. Therefore, any action of the President which goes beyond his constitutional powers or alters the established constitutional procedure for the appointment and dismissal of officials leads to an imbalance of the system of checks and balances and is dangerous for the democratic legal order.

Although the legal regime of martial law is currently operating in Ukraine, the Verkhovna Rada, following the logic of the current semi-presidential government system, remains the key and capable body for the appointment and dismissal of the Head of the SBU. It is worth noting that the VRU has been working effectively throughout the entire period of martial law; in particular, on 18 July it worked in the mode of plenary sessions.

In addition, it is essential to mention that the current wording of Article 13 of Law No. 2229-XII (i.e., the clause vesting in the President power to appoint and dismiss the Head of the SBU independently) is still not in line with the Constitution. By the way, after the 2004 constitutional amendments regarding the procedure for appointing and dismissing the Head of the SBU, the CPLR experts emphasized that such a procedure (when the President lacks the power to dismiss the Head of the SBU independently) is abnormal, and suggested making appropriate amendments to the Constitution; however, all this time, such warnings and suggestions have been ignored.


The President Suspended the Prosecutor General


Event

On 17 July 2022, the President signed decrees No. 500/2022 “On the Suspension from the Position of the Prosecutor General” and No. 501/2022 “On the Assignment of the Duties of the Prosecutor General”. According to these decrees, the President suspended I. Venediktova from the post of General Prosecutor and appointed O. Simonenko as Acting Prosecutor General under Article 11 (section 2) of the Law of Ukraine “On the Legal Regime of Martial Law” (dd. 12 May 2015 No. 389-VIII).

Article 11 (section 2) of the Law of Ukraine “On the Legal Regime of Martial Law” (as amended by Law No. 2259-IX dated 12 May 2022) vests during the period of martial law in the President the power to suspend an official from the post (if President has the authority to appoint and dismiss such an official) and to entrust the performance of such duties to another person for the corresponding period. 

Opinion of the CPLR 

The Prosecutor General is appointed and dismissed by the President with the consent of the Verkhovna Rada under Article 85 (section 1, subsection 25), Article 106 (section 1, subsection 11), Article 131-1 (section 3) of the Constitution, Article 40 of the Law of Ukraine “On the Prosecutor’s Office” (dd. 14 October 2014 No. 1697-VII). The President lacks the constitutional authority to appoint or dismiss the Prosecutor General independently. In addition, neither the Constitution nor the relevant Law No. 1697-VII provides the possibility of the Prosecutor General’s suspension by the President as a form of disciplinary responsibility towards this official. 

From the legal point of view, it appears that the President, without the consent of the VRU, actually replaced the Prosecutor General by suspending this official and assigning her duties to another. Article 11 (section 2) of Law No. 389-VIII cannot affect the Prosecutor General since the appointment and dismissal of such an official are not discretionary (independent) powers of the President. In addition, this clause, created during current martial law, suffers from the defects of legal certainty and in practice leads to an imbalance in the constitutional system of checks and balances. If there is a need to apply a disciplinary procedure for the dismissal of the Prosecutor General (based on an appeal of the relevant body conducting disciplinary proceedings or the High Council of Justice under Article 42 of Law No. 1697-VII), such a dismissal process is possible only with engagement of the VRU. In addition, under Article 85 (section 1, subsection 25) and Article 131-1 (section 5) of the Constitution, the VRU independently can express no confidence in the Prosecutor General, which results in his/her resignation from office. However, the experts of the CPLR have repeatedly called for the removal from the Constitution this political procedure for the dismissal of the Prosecutor General, which introduces an imbalance into the constitutional design of a semi-presidential republic. 

The powers of the President are determined exclusively by the Constitution under Article 106 (section 1, subsection 31), which is also confirmed by the interpretation practice of the Constitutional Court regarding the Constitution. Therefore, any action of the President which goes beyond his constitutional powers or alters the established constitutional procedure for the appointment and dismissal of officials leads to an imbalance of the system of checks and balances and is dangerous for the democratic legal order.

Although the legal regime of martial law is currently operating in Ukraine, the Verkhovna Rada, following the logic of the current semi-presidential government system, remains the key and capable body for granting consent to the appointment and dismissal of the Prosecutor General. It is worth noting that the VRU has been working effectively throughout the entire period of martial law; in particular, on 18 July it worked in the mode of plenary sessions.