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- Constitutional Court has prohibited amending the Constitution in terms of introducing additional grounds for early termination of powers of the People's Deputy of Ukraine
- People’s deputy from Kolomoisky's group proposes to "roll back" judicial reform
On December 27, 2019, the Constitutional Court of Ukraine issued a negative opinion in the case on the conformity of the draft law amending Article 81 of the Constitution of Ukraine (concerning additional grounds for early termination of powers of the People's Deputy of Ukraine) (Reg. No. 1027) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. This is the third draft law introduced by the President of Ukraine to amend the Constitution of Ukraine (out of seven draft laws that were initiated on August 29, 2019), which does not meet the requirements of part 1 of Article 157 of the Constitution of Ukraine. Although the amendments proposed in the draft law are not aimed at eliminating independence or violating the territorial integrity of Ukraine, the CCU draws attention to the following:
- in order to strengthen parliamentary discipline, the draft law introduces many judgmental concepts that do not meet the criteria of clarity, unambiguity and predictability, as required by legal certainty concept as a component of the rule of law principle. In this regard, such concepts may become sensitive in terms of their discretionary (and in some cases arbitrary) application by the parliamentary majority for its own benefit and to the detriment of the minority already at the level of ordinary laws;
- automatic loss of the mandate of the People's Deputy of Ukraine without the decision of the Verkhovna Rada of Ukraine on the basis of establishing by the court only the very fact of any "non-personal vote", regardless the nature of act(s) of the People’s Deputy of Ukraine, circumstances under which this fact occurred, without establishing the nature of personal participation of the People's Deputy of Ukraine and without taking into account the fact that mitigating circumstances may arise regarding the behavior of the People's Deputy of Ukraine – will not meet the requirement of consistency, however, any restrictions of human and citizen's rights and freedoms are only permissible, provided that such restrictions are consistent (proportionate);
- PACE and the Venice Commission have repeatedly expressed their concerns about the actual preservation of the imperative mandate in Ukraine, which contradicts the European standards of the representative mandate and violates the independence of the deputies as representatives of the people: “There is no imperative mandate in any European country except Ukraine, and the requirement that prevents a deputy from free leaving any faction is a clear and blatant violation of the European tradition of a free parliamentary mandate”;
- since the Constitutional Court came to the conclusion that the proposed amendments to the Constitution of Ukraine, which provide for additional grounds for termination of the powers of the People's Deputy of Ukraine, do not meet the requirements of part 1 of Article 157 of the Constitution of Ukraine, there is no need to consider the issues of the procedure for early termination of powers of the People's Deputy of Ukraine under the Supreme Court's decision.
2. CPLR proposal
According to the Constitution of Ukraine, the absence of the Constitutional Court's opinion on the conformity of the draft law on amending the Constitution of Ukraine with the provisions of Articles 157, 158 of the Constitution of Ukraine makes it impossible to further consider and approve this draft law by the Verkhovna Rada. We recommend to the President of Ukraine as a subject of the right of the constitutional initiative, who introduced this draft law, to withdraw it.
In order to avoid cases of the President of Ukraine initiating constitutional changes that are not consistent with the constitutional principles of the rule of law and separation of powers, the principles of a democratic state with the rule of law, and, if implemented, would threaten the rights and freedoms of the individual and citizen, any amendments to the Constitution should be prepared in an open mode with a thorough expert discussion.
On January 2, a people’s deputy from the party "Servant of the People" M. Buzhansky, who belongs to the so-called “Kolomoisky Group”, according to the Movement "Chesno", registered the draft law “On Amending Certain Laws of Ukraine (on ensuring the functioning of the judicial system in Ukraine in accordance with international standards of Judiciary)” (hereinafter – the draft law).
The draft law proposes:
- to exclude the legislative provision on the maximum number of judges of the Supreme Court and delegate the decision-making authority on this matter to the High Council of Justice (hereinafter – HCJ) and the Head of the State Judicial Administration;
- change the principle of formation of the High Qualifications Commission of Judges (hereinafter – the HQCJ) (7 members will be selected by the judges and 5 will be nominated by the HCJ based on the results of the competitive selection) and a Selection Commission to select its members (instead of members of the Council of Judges and international experts, a Selection Commission will include the representatives of the Council of Judges, the Ombudsman, the National Academy of Law, the Bar Council and the Public Council of Integrity);
- to change the composition of the Integrity and Ethics Commission by excluding international experts from its membership and substantially reducing its authority (deprive it of its right to review candidates for HCJ membership and to conduct disciplinary proceedings against Supreme Court judges). The procedure for dismissal of a HCJ member upon submission of a Commission is also significantly complicated (a qualified majority of HCJ members will be required for dismissal);
- to exclude judges and candidates to judge’s position from among the persons who are subject to examination under the Law of Ukraine “On Lustration”;
- increase the timeframe for disciplinary proceedings against judges;
- to bring back the excessive salaries of Supreme Court judges, members of the HCJ and the HQCJ, which existed before the 2019 changes.
2. CPLR assessment
According to CPLR experts, the draft law in essence is a “counter-reform” not only to the legislative changes made in 2016 and initiated by President P. Poroshenko, but also to the changes initiated in 2019 by President V. Zelensky. Most of the provisions of the draft law are aimed at maintaining stable corruption links in the judicial system and strengthening the mechanisms of dependence of judges.
The author of the draft law proposes to completely remove international experts from the procedures of selection and examination of the integrity of the members of the HQCJ and the HCJ. The legislative changes initiated in 2019 by President V. Zelensky envisaged the involvement of international experts in the selection of members of the HQCJ, the evaluation of the integrity of candidates/members of the HCJ and the HQCJ, which should guarantee the transparency and fairness of the respective procedures. Instead, the author of the draft law proposes to replace international experts with the subjects (judges, scientists, lawyers, ombudsmen) whose activities have led to the “conservation” of negative phenomena in the judiciary and forced President V. Zelensky to initiate a new judicial reform in 2019.
The author of the draft law proposes to return the quota principle of formation of the HQCJ, under which the majority (7) members of the Commission will be elected by judges, and 5 – will be appointed by the HCJ based on the results of the competitive selection. This formation principle of the HQCJ has already discredited itself in previous years, as it has become one of the obstacles to reducing corruption in the judicial system.
The draft law will negate the role of the Integrity and Ethics Commission. The purpose of this Commission is to ensure the transparency and accountability of members of the HCJ and the HQCJ, as well as to verify the integrity of the candidates to the HCJ. According to the draft law, the commission will not conduct a check on the integrity of candidates to the HCJ. A HCJ member may be dismissed on the basis of a Commission’s submission by a qualified majority of the HCJ members, and not at a joint meeting of the HCJ with the Commission as it is provided now. This will make it impossible for the HCJ to be cleared of members who do not meet the integrity requirements.
The author of the draft law proposes to exclude judges from among the persons covered by the Law of Ukraine “On Lustration”. In fact, this will allow lustrated officials to become judges in any level of court, which is completely contrary to the logic of the lustration procedure. The draft law also returns to office judge V. Tatkov (the head of the Supreme Economic Court of the time of V. Yanukovych) – the only judge dismissed under the Law "On Lustration" for violating incompatibility requirements.
The author of the draft law proposes to return the salary levels of Supreme Court judges, HCJ and HQCJ members (roughly equivalent to $ 10,000 per month) that existed before the 2019 changes. Adopting this change will restore the problem of the huge pay gap between judges of the Supreme Court and other courts, as well as unreasonably high remuneration for members of the HQCJ and the HCJ.