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Weekly analytics for 11 – 18 January 2021
Attempts to influence anti-corruption judges, including by the High Council of Justice, have become more frequent
Judges of the High Anti-Corruption Court (hereinafter – HACC) have started to report more frequently on the interference in their activities. From October 2020 to mid-January 2021, as many as six such reports were received. For comparison: from the beginning of the court’s work in September 2019 until October 2020, the HACC judges appealed to the High Council of Justice (HCJ) only three times with reports of interference in their activities.
All recent reports are quite serious. In one of them, the Chairman of the Court O. Tanasevych notified on the explosion of an unknown object, which damaged the facade of the court building. Judge O. Voronko reported on the simultaneous attempts of unauthorized access to the personal mobile phone of the judge, his two assistants and the secretary. Judges V. Maslov, I. Strohy, and L. Fedorak informed about the interference of the Deputy Chairman of the HCJ O. Malovatsky. In the opinion of the judges, this interference manifested itself in the fact that O. Malovatsky twice tried to demand the materials of the case, which was pending and warned the judges of possible liability. It should be reminded that according to part 6 Article 31 of the Law “On the High Council of Justice”, any court case materials (their copies) may be provided at the request of a member of the HCJ, only in respect of those cases which have been completed. At the same time, the HCJ refused to take measures, arguing that the request to provide copies of court decisions that ended certain procedural actions is not identical to the provision of copies of case materials.
In addition, for the first time in the last two months, the HACC judges were brought to disciplinary responsibility. On November 16, 2020, the Second Disciplinary Chamber of the HCJ punished the judge V. Mykhaylenko for allegedly violating the requirements of procedural law by the investigating judge during the granting of permission for a special pre-trial investigation. On January 13, 2021, the Third Disciplinary Chamber of the HCJ brought judge T. Khamzin to disciplinary responsibility. According to the press service of the HACC (the text of the decision is not yet available on the HCJ website) the basis for bringing the judge to disciplinary responsibility were violations in granting permission to search the apartment, which is in the actual possession of a judge of the District Administrative Court of Kyiv (hereinafter – DACK).
The investigation of “Slidstvo.Іnfo” journalists into attending by the Chairman of the HACC O. Tanasevych of a party at the institute of former people’s deputy and Head of the High Council of Justice S. Kivalov caused a high media response. The party was also attended by suspects in the crimes: the chairman of the Constitutional Court O. Tupytsky and the chairman of the capital’s administrative court P. Vovk, whose issue is decided from time to time by the HACC. The press service of the High Anti-Corruption Court was the first to respond to the media reports. The court reported that the Chairman of the HACC visited the institute to coordinate online lectures. However, later in an interview, O. Tanasevych confirmed that at the same time she participated in another informal event, which was attended by O. Tupytsky and P. Vovk. According to the judge, she did not plan to attend the event in advance and did not know who would be present, but only agreed to the proposal of the director of the institute to attend the event with colleagues, which was taking place at the same time.
CPLR experts are of the opinion that a sharp increase in the number of interventions in the activities of HACC judges may indicate an attempt to influence the activities of this court. Particular concern is caused by the fact that the HCJ’ actions have signs of such an impact. This is evidenced, in particular, by the refusal of the HCJ to take measures to respond to the violation by the Deputy Chairman of the HCJ of the requirements of the law regarding the request to provide materials of the case, the consideration of which has not been completed. In our opinion, the HCJ’s reference to the “non-identity” of requesting copies of procedural decisions and copies of case materials does not stand up to criticism, as the requested decisions are part of the case materials.
In the context of influencing the activities of the HACC, one can consider an obvious attempt to create a platform for communication between the chairman of this court and individual participants in high-level corruption cases. The behavior of the Chairman of the HACC in this situation does not seem sufficiently cautious and careful, and public communication of relevant events by the court and the chairman of the court is inconsistent and incomplete, and therefore does not contribute to trust.
Laws aimed at restoring the institutional mechanism for preventing corruption have entered into force
On December 30 last year, a number of laws aimed at restoring the institutional mechanism for preventing corruption and liability for false declarations came into force:
● Law No. 1074-ІХ of December 4, 2020 “On Amendments to Certain Legislative Acts of Ukraine Concerning Establishment of Liability for Declaring Inaccurate Information and Failure of a Declarant to Submit a Declaration of a Person Authorized to Perform Functions of the State or Local Self-Government”, which restored the criminal liability for inaccurate declaration and failure to submit an electronic declaration in an updated version (more details in the weekly analysis of December 8-14, 2020);
● Law No. 1079-ІХ of December 15, 2020 “On Amendments to the Law of Ukraine“ On Prevention of Corruption” on Restoration of the Institutional Mechanism for Prevention of Corruption”. This Law restored the powers of the National Agency for the Prevention of Corruption (NAPC), which had previously been declared unconstitutional.
The novelty was Article 52-2 of the Law “On Prevention of Corruption” on the peculiarities of full verification of declarations, monitoring of the lifestyle of judges and judges of the Constitutional Court of Ukraine (hereinafter – CCU). In accordance with this new provision, the NAPC will agree the procedure for full verification of declarations of judges with the High Council of Justice (hereinafter – HCJ) and the meeting of judges of the CCU, respectively. The NAPC will inform the HCJ or the Chairman of the CCU about the full verification of declarations of judges and judges of the CCU, monitoring of their lifestyle no later than the next working day after the beginning of such verification or monitoring. The certificate based on the results of a full verification of the declaration or lifestyle monitoring will be approved by the NAPC Chairman or his/her deputy. In addition, a mechanism is being introduced to protect judges and judges of the CCU from illegal influence, pressure or interference in their activities by the NAPC (more details in the weekly analysis of December 15-21, 2020).
On December 31 last year, the Law No. 1080-ІХ of December 15, 2020 “On Amendments to the Code of Ukraine on Administrative Offenses to Establish the Peculiarities of Drawing up a Protocol on Administrative Offenses under Articles 172-4 – 172-9, 188-46 and 212-15, in respect of a judge, a judge of the Constitutional Court of Ukraine” also entered into force. Now the protocol on a judge, a judge of the CCU can be drawn up only by the NAPC Chairman or his/her deputy. A special procedure for interaction between the NAPC and the judge subject to protocol is being introduced, and the communication will be made exclusively by mail. The judge may also, on his/her own initiative, provide an explanation to the authorized person of the NAPC in person or in the presence of the HCJ inspector or the Chairman of the CCU (his/her deputy).
The adopted laws restore the mechanisms for preventing and combating corruption and allow resuming the work of the NAPC in full. Their entry into force last year means extending their effect to the declaration cycle for 2019, which began in January this year.
However, Law No.1074-IX does not promote the inevitability of liability for false declaration or non-declaration, as the person who committed such crimes may be released on bail, released from liability due to “effective remorse” or “change of circumstances”, as has often been the case in all previous years.
In addition, as reported by the CPLR experts, the introduction of special mechanisms for full verification of declarations and lifestyle monitoring exclusively for judges and judges of the CCU calls into question the principle of equality before the law. CPLR experts are of the opinion that in this part the laws will somewhat worsen the accountability of judges.
Draft law on the constitutional procedure was registered in the Verkhovna Rada
On December 21, the Parliament registered a draft law on constitutional procedure (Reg. No. 4533), which defines the procedure and framework for the Constitutional Court of Ukraine (hereinafter – CCU) to exercise its powers during the consideration of cases of constitutional jurisdiction, the procedure for appeal to it, and implementation of its decisions, provision and implementation of conclusions.
In particular, the draft law provides for:
1) introduction of:
– qualified majority for adopting the decisions of the CCU: 12 (instead of 10) votes from the Grand Chamber and 6 (instead of 2/3) votes from the full composition of the Senate;
– a single centralized register of acts of the CCU with open access to acts of the Court;
– an automated document management system of the CCU, which will ensure the formation of the composition of the senates and permanent panels on a random basis, as well as random, objective and impartial distribution of cases between judges;
– oral form of constitutional proceedings as the main one during the consideration of cases on constitutional submissions (except for cases on constitutional complaints, where the written form of proceedings is mainly preserved);
2) optimization of the procedure for forming the agenda of the CCU, requirements for the decisions of the CCU (in particular, the motivational part of the decisions of the CCU), as well as the grounds and procedure for bringing CCU judges to disciplinary responsibility.
The CPLR welcomes the initiative of the people’s deputies of Ukraine to optimize the legislative regulation of procedural aspects of the CCU, which at the same time leaves the Court itself the opportunity to independently regulate procedural issues not regulated by this document. Improving the current legislation on the CCU’s procedural activities, rather than artificially blocking the work or unconstitutional dissolution of the Court, is the right step towards ensuring the stability of the constitutional order in Ukraine, as noted by the Venice Commission in its December conclusions CDL-AD(2020)038-e and CDL-AD(2020)039.
At the same time, it should be noted that the draft law No. 4533 does not implement all the key recommendations set out in these conclusions of the Venice Commission. In particular, according to CPLR experts, the disadvantage is that the draft law does not envisage:
– provisions aimed at improving the procedure for competitive selection of judges of the Constitutional Court (which must be contained in the Law “On the Constitutional Court of Ukraine”);
– the possibility for the Senate of the CCU to refer the case to the Grand Chamber of the CCU, if the Senate has not found grounds for terminating the constitutional proceedings or recognizing the relevant act as constitutional;
– self-recusal of a judge as an automatic ground for his/her non-participation in the case (the draft law contains provisions requiring consideration of applications for both recusal and self-recusal of a judge by the Constitutional Court);
– the possibility for the CCU to review its own decision in the event that a judge (judges) is prosecuted in connection with the adoption of such a decision.
With regard to the provisions that envisage the possibility of applying for disciplinary action against a CCU judge to the President of Ukraine, the CPLR emphasizes that such provisions have signs of unconstitutionality.
CPLR also points to the need for editorial and legal editing of the text of the draft law. In particular, the draft law operates with the term “Judge (in capital letters) of the Constitutional Court of Ukraine”, which does not correspond to the spelling terminology of the Constitution of Ukraine. In addition, the title of the draft law (“On Constitutional Procedure”) does not quite correspond to the content of the legal regulation of this document: it should be referred to as the law “On Constitutional Proceedings”.
It is also important to note that the draft law No. 4533 removes the requirement that a judge of the CCU, in particular, may not be appointed to a position by a person who on the day of appointment:
– is a member or holds a position in a political party, other organization that has political goals or participates in political activities;
– is elected to a position in a public authority or local government, has a representative mandate;
– participates in the organization or financing of political agitation or other political activity.
CPLR draws attention to the fact that these requirements are a novelty of the Law “On the Constitutional Court of Ukraine” of 2017, they are aimed at ensuring the political neutrality of judges of the CCU. The authors of the draft law do not question the criterion of political neutrality, the relevant provisions of the current law were not considered unconstitutional. It is important that the judges of the Constitutional Court not only be politically neutral, but also perceived as such. Therefore, the removal of these requirements from the law should be accompanied by the establishment of additional legal mechanisms that guarantee the impossibility of combining the position of a CCU judge with any other political position or mandate.
In general, the draft law No. 4533 is a positive step to optimize the CCU, but the CPLR recommends that the text of this document be revised so that the main problems of competitive selection of CCU judges and the Court’s procedural activities can be addressed more comprehensively in the light of the Venice Commission’s recommendations.