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Weekly analytics of the CPLR for 15 – 21 December 2020

21.12.2020

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.

If you want to receive expert analytics for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua (Ivan Holod, Сommunication manager).


Weekly analytics for 15 – 21 December 2020



Parliament plans to allow introduction of electronic justice in a phased manner


Event

On December 16, the Verkhovna Rada adopted in the first reading the draft law No.3985 “On Amendments to Certain Legislative Acts to Enable the Phased Implementation of the Unified Judicial Information and Telecommunication System”. The draft proposes amendments to the Commercial, Civil Procedure Codes and the Code of Administrative Procedure, which stipulate that the Unified Judicial Information and Telecommunication System (hereinafter referred to as the UJITS) will not be implemented at once, but may be launched by separate subsystems or modules (e.g. automated distribution of cases, documents in electronic form, managing cases electronically, etc.).

The draft law stipulates that certain subsystems or modules of the UJITS will become operational 30 days after the publication of the announcement by the High Council of Justice in the newspaper “Voice of Ukraine” and on the web portal of the judiciary. Moreover, the draft law expands the powers of the High Council of Justice in the field of developing regulations on the UJITS and its separate modules.

In addition, on December 16, the Deputy Head of the State Judicial Administration S. Chornutsky announced the launch of an electronic office for judges, thanks to which judges were able to remotely view the materials of cases assigned to them and receive notifications about new documents submitted.

CPLR assessment

The new versions of the Procedural Codes, which entered into force in December 2017, provided for the establishment of the UJITS and its implementation in the activities of the courts. However, to date, no significant progress has been made in the implementation of this system, only the test operation of its individual modules is carried out, and the development process itself is accompanied by numerous scandals (for example, unreasonable spending of funds). The trial operation of the UJITS was supposed to start on March 1, 2019, but due to the unpreparedness of the system, the relevant announcement was withdrawn.

According to the order of the State Judicial Administration of April 13, 2018 No. 168, the UJITS should operate in 5 subsystems, which consist of separate modules, in particular:

  1.  General subsystem, which consists of 6 modules: official e-mail address (e-office), web portal “Judiciary of Ukraine”, register of court decisions, Unified State Register of Enforcement Documents, “Open Datasets”, “Automated system of interaction with other automated systems”.
  2.  Unified subsystem of electronic document management of courts, bodies and institutions of the justice system, which consists of 5 modules: electronic court, electronic record keeping, “Automated distribution”, “Electronic archive”, “Judicial statistics”.
  3.  Unified subsystem of financial and economic processes management, which consists of modules “Personnel Management, Financial and Accounting” and other modules on financial and economic management.
  4.  Single Contact Center of the judiciary of Ukraine.
  5.  Comprehensive information security system.

As stated in the explanatory note to the draft law No. 3985, the UJITS’s subsystems are at different stages of readiness, and while the development of some subsystems is close to completion, the development of others is only at an early stage. Under such conditions, according to CPLR experts, the gradual implementation of the UJITS is justified and will have a positive effect on the development of electronic justice. However, some provisions of the draft law may preserve the parallel management of case materials (in particular, minutes of court hearings, court decisions) in paper and electronic form, although the CPLR experts believe that it is advisable to gradually move away from the paper form of court documents (except cases, when the parties ask for a paper copy of the document).

However, in early December 2020, the State Judicial Administration announced that the funds allocated in the state budget for 2021 for the judiciary will not be enough to implement and develop the UJITS and even to pay for communication services. That is, due to underfunding, the expected positive effect of the draft law No.3985 may not be achieved next year.



High Council of Justice continues to violate the Constitution of Ukraine


Event

In weekly analyzes for November 24-30 and December 1-7, 2020 the CPLR experts reported that the High Council of Justice (hereinafter – HCJ), ignoring the findings of the Public Council of Integrity (PCI), submitted to the President a proposal to appoint judges, who have not completed the qualification assessment. On December 17, with similar violations, the HCJ filed a motion to appoint three more judges.

CPLR experts estimated that as of December 21, the HCJ managed to make submissions on the appointment 56 judges for an indefinite term with such violations. In addition, for December 222429, it is planned to consider the applications in relation to 18 more persons whose powers have been terminated.

Additionally, as it became known, the PCI coordinator Mykhailo Zhernakov appealed the HCJ’s submissions to the Supreme Court. According to the web portal “Judiciary of Ukraine”, the issue of opening proceedings is currently being considered.

CPLR assessment

CPLR experts have already assessed these submissions, emphasizing the violation of the HCJ’s statutory procedure for appointing judges. Given the seriousness of the violation, such an appointment may call into question the legitimacy of the decisions taken by such judges.

However, out of 56 submissions, the President has so far appointed only one judge for an indefinite period. The best way to resolve the threatening situation created by the HCJ could be either to return the submitted motions without consideration to the HCJ to ensure compliance with the Constitution, or to refrain from issuing decrees appointing judges until the Supreme Court decides on the legality of submissions.



Powers of the second composition of the Public Council of Integrity have expired


Event

On December 17, the powers of the second composition of the Public Council of Integrity (hereinafter – PCI), elected by the meeting of public organizations for a two-year term, expired. The second PCI included five experts proposed by the CPLR: Roman Kuybida, Anton Marchuk, Roman Maselko, Maksym Sereda and Roman Smaliuk (he terminated his term as a member of the PCI on July 2, 2019).

The following achievements of the second composition of the PCI can be highlighted:

⮚     PCI has compiled a detailed list of indicators to determine non-compliance with the criteria of integrity and professional ethics of judges and candidates for judge’s positions;

⮚     PCI took part in the second competitive selection for the position of a judge of the Supreme Court, the competitive selection for the High Court on Intellectual Property and the qualification assessment of judges for compliance with the position.

⮚     PCI has won over two years of fighting artificial restrictions on public participation in the qualification assessment process. The Grand Chamber of the Supreme Court has adopted a final decision in the case of Vitaliy Tytych, a member of the PCI of the first convocation, on the illegality of amendments to the Rules of Procedure of the HQCJ, which made it impossible for PCI to participate effectively in the assessment procedure.

According to Article 87 of the Law “On the Judiciary and the Status of Judges”, a new PCI can be formed only after the beginning of the work of the HQCJ, whose members are not currently appointed.



Neverending Story: a new round of the marathon aimed at revival of the institutional mechanism for preventing corruption


Event

On December 7, the draft law No. 4470 was submitted to the Verkhovna Rada on the settlement of the crisis in the functioning of the mechanism for preventing and combating corruption caused by the decision of the Constitutional Court of Ukraine (CCU) of October 27 this year No. 13-r/2020. Already on December 15 it was adopted as a law, and on December 18 it was sent for signature to the President.

CPLR assessment

The first thing to emphasize is the paramount importance of resolving the collapse of the anti-corruption mechanism for the people’s deputies in the way indicated by the draft law. One week to consider a draft law from the moment it is introduced in parliament until its adoption as a law is a rather short period, compared to the terms of consideration of other draft laws, even taking into account the positive assessments of experts. The new Law resembles a mosaic – articles and parts repealed by a decision of the CCU are first removed from the text of the Law, and then added to it under a new number, or included in another part of a certain article.

However, there are significant changes reflected in Article 52-2, which resolve the conflict between the decision of the CCU №13-r/2020 and the Law “On Prevention of Corruption”. If we do not take into account certain provisions that refer to Article 52-2, it is the only innovation that is implemented in the new law. This article regulates the peculiarities of full verification of declarations, monitoring of the lifestyle of judges and judges of the CCU.

What will change for judges and judges of the CCU as a result of the entry into force of the new law?

1. The procedure for full verification of declarations of judges and judges of the CCU will be coordinated by the National Agency for the Prevention of Corruption (NAPC) with the HCJ and the meeting of judges of the CCU, respectively. There are two options: the first will provide for the development of one procedure for a full verification of declarations for all subjects of the declaration, which in terms of verification of declarations of judges and judges of the CCU will be agreed with the relevant entities; the second option provides for two or three procedures in force at the same time – for judges, for judges of the CCU and for other subjects of declaration.

2. The NAPC shall inform the HCJ or the Chairman of the CCU about the full verification of the declarations of judges and judges of the CCU, about the monitoring of their way of life immediately, but not later than the next working day from the day 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. The implementation of this norm will require additional resources – working hours of NAPC employees, who will inform about the beginning of full verification of the declaration or monitoring of the lifestyle of judges or judges of the CCU. In the case of a significant volume of such inspections, this may require the involvement of new employees and, consequently, an increase in state budget expenditures on these employees.

3. A mechanism shall be introduced to protect judges and judges of the CCU from unlawful influence, pressure or interference in their activities and to bring to disciplinary responsibility NAPC officials who have committed acts or omissions that violate the guarantees of independence of judges and judges of the CCU.

In general, the new Law restores mechanisms to prevent and combat corruption and allows the NAPC to resume its work in full.

However, the introduction of these mechanisms exclusively for judges and judges of the CCU calls into question the principle of equality before the law. Obviously, these are different conditions for the full verification of declarations of judges and judges of the CCU compared to other subjects of declaration: all declaring subjects, not only judges and judges of the CCU, may want to be informed in advance about the full verification of their declarations and monitoring their lifestyle; not only judges and judges of the CCU, but all subjects of the declaration must be protected from pressure and unlawful interference in their activities. In addition, the provisions of the legislation on the activities of judicial authorities are not in line with the updated provisions of the Law “On Prevention of Corruption”.

Although, the biggest drawback of the Law is that it enshrines in the law a high probability of conflicts between the executive and the judiciary branches. This is a matter of giving the HCJ and the meeting of CCU judges the control powers in the form of bringing to the attention of the NACP Chairman of a mandatory submission on the elimination of violations, detection and bringing to responsibility under the law of persons who committed an act that violates the guarantees of independence of judges, judges of the CCU during the exercise of the powers of the NAPC, followed by informing the HCJ, the meeting of judges of the CCU on the measures taken by the Chairman of the NAPC in response to respective submission.



Draft Law on the Protection of Whistleblowers needs important clarifications


Event

On December 15, the Verkhovna Rada Committee on Anti-Corruption Policy, in preparation for the second reading, considered the draft law No.3450 “On Amendments to Certain Legislative Acts of Ukraine on Regulation of Certain Issues of the Protection of Whistleblowers” (hereinafter – the draft law) and recommended that the Verkhovna Rada adopt it as a law.

The Committee considered more than 90 proposals of people’s deputies and, in particular, supported the amendments according to which: the NAPC should be involved in the trial if the whistleblower is a party to the process; the reward to the whistleblower should be paid not after the court decision, but after the actual recovery of funds from the corrupt official to the state revenue.

It should be reminded that the draft law was adopted by the Verkhovna Rada as a basis on November 5.

CPLR assessment

It is necessary to support the provisions of the draft law, which provide for:

1) creation of the Single Portal of Whistleblower Notifications open for round-the-clock access, the maintenance of which is proposed to be attributed to the competence of the NAPC. At the same time, submission of notifications (including anonymous ones) through internal channels about the possible facts of corruption or corruption-related offenses, other violations of the Law “On Prevention of Corruption” will be carried out through the Single Portal and special telephone lines. This approach will make it possible both to obtain data on the majority of relevant violations committed in the state and to protect whistleblowers, including their anonymity. In addition, the portal will be filled by entering notifications that will come through regular and external channels (the definition of these three types of channels is contained in Article 1 of the Law “On Prevention of Corruption”);

2) possibility of disclosing information by the whistleblower not only to the head or authorized unit (person) of the body, legal entity in which the whistleblower works, serves or studies or on whose  assignments he/she fulfills, but also to a higher level body whose authorized person monitors compliance with anti-corruption legislation at subordinate enterprises, institutions and organizations;

3) narrowing the list of regular communication channels (only the prosecutor’s office, the National Police, NABU, SBI and NAPC should have them; all other subjects of power should have internal communication channels);

4) granting the NAPC the right to conduct inspections of the organization of work to prevent and detect corruption in state bodies, local governments, certain legal entities, in particular regarding the functioning of internal and regular channels of communication.

At the same time, the provisions of Article 53-2 as amended by the draft law on the procedure for conducting an inspection upon notification of the whistleblower remain problematic.

First, “the notification is subject to consideration if the information provided therein relates to a specific person, contains factual data confirming the possible commission of a corruption or corruption-related offense, other violations of this Law, which can be verified.” However, under such an approach, notifications on the commission of offences by unidentified persons, in particular, on the theft of state or communal property, its misappropriation, etc., will not be considered at all, as they do not concern a specific person. Therefore, the words “relates to a specific person” should be deleted.

Second, the words “which can be verified” allow to refuse to consider a notification on the grounds that the information allegedly cannot be verified, and these words are also unnecessary. Obviously, any information can be verified, only the effectiveness of the verification can be discussed.

Third, it is not clear what is meant by “other violations of this Law” that are not covered by the concept of “corruption offenses”. After all, the latter is defined by the Law “On Prevention of Corruption” as acts that do not contain signs of corruption, but violate not only prohibitions and restrictions, but also any other requirements established by this Law. That is, the words “other violations of this Law” should also be excluded from all articles of the draft law.

Fourth, the period of preliminary consideration of the notification provided for in Article 53-2 of the draft Law is unreasonably long. Thus, instead of one working day, the preliminary consideration of the notification, during which no investigation has yet taken place, lasts 10 working days – with four days off, it will be two weeks. Even in relation to more serious types of offenses, such as crimes and criminal offenses, the law (Article 214 of the CPC of Ukraine) establishes a rule: upon notification of a criminal offense, the investigation begins immediately, but not later than 24 hours.

Fifth, the draft law, adopted as a basis, excludes the provisions of the current legislation on the participation of the NAPC in civil and administrative proceedings as a third party which does not make independent claims on the subject matter of the dispute, as well as the subject of recourse to the courts in the interests of whistleblowers. However, these provisions guarantee whistleblowers and their relatives the right to state protection and cannot be excluded, because “when amending existing laws, the content and scope of existing rights and freedoms may not be narrowed” (Article 22 of the Constitution of Ukraine).