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- Kyiv District Administrative Court will supervise the formation of the HQCJ and the activities of the HCJ, as well as disciplinary practices against prosecutors
- Constitutional Court began to consider the case on the unconstitutionality of the President V. Zelensky’s judicial reform
- High Council of Justice approved the methodology for assessing candidates' professional experience
- Criminal responsibility for sexual offenses against children is strengthened and the Unified Registry of such persons is established for the purpose of prevention
On January 15, the Verkhovna Rada adopted the Law “On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine and the Code of Ukraine on the Administrative Judiciary regarding the Improvement of the Procedure for the Consideration of Cases” (hereinafter – the law).
Before the second reading, the profile committee of the Parliament proposed to assign under the jurisdiction of the Supreme Court the cases of appealing the acts, actions or omissions of the selection commission formed to conduct a competition for the position of a member of the High Qualification Commission of Judges of Ukraine (hereinafter – the HQCJ) and the Commission on Integrity and Ethics (Ethics Commission). However, these amendments were rejected at the plenary session of the Verkhovna Rada, and therefore Kyiv District Administrative Court will consider such a category of appeals. Instead, the parliament supported the amendments, which assigned under the jurisdiction of Kyiv District Administrative Court the consideration of appeals against actions, acts or omissions of a disciplinary authority against prosecutors (previously such cases were considered by the Supreme Court).
2. CPLR assessment
In the political points of May 13-20, June 10-17, 2019, the CPLR experts reported on the probable role of the Kyiv District Administrative Court in destabilizing and blocking the work of the HQCJ. Moreover, according to the non-public investigative material published by the National Anti-Corruption Bureau of Ukraine, the chairman and judges of this court allegedly initiated court cases against members of the High Qualifications Commission of Judges (HQCJ) through some persons under their control in order to prevent them from passing the qualification assessment and establish control over the activities of this body. This court is also known for making a number of decisions that have received negative public and even international resonance (abolition of privatization of the Privatbank, suspension of the competitive selection for the post of head of customs and formation of the Public Control Council under the State Bureau of Investigation, renewal of Roman Nasirov as head of the State Fiscal Service, etc.) the widespread absence of its judges at the assessment exercise and numerous journalistic investigations into the lifestyle of its judges. That is, there are reasonable doubts as to the independence of the judges of this court.
The Selection Commission for the selection of the HQCJ members and the Commission on Integrity and Ethics are new actors in the judicial system, their creation was initiated by President V. Zelensky. Given their legal status and authority, it would be more appropriate to refer cases involving them to the Supreme Court, since it is the court of first instance in disputes with the HQCJ (the Selection Commission participates in its formation) and the High Council of Justice (the Commission on Integrity and Ethics exercises control over its activity).
Roman Kuybida, the CPLR expert believes that "Parliament's actions may indicate that judges of the District Administrative Court are loyal to political power and they can be used to "correct" the activities of new bodies in the judicial system if they demonstrate independence."
It should be reminded that the CPLR had previously provided an expert opinion on the original version of this draft law.
On November 15, 2019, the Supreme Court submitted an appeal to the Constitutional Court of Ukraine in which it declared the unconstitutionality of:
- reduction of the maximum number of judicial positions in the Supreme Court from 200 to 100 and the mechanism for reducing the current court composition;
- reduction of the salary of a Supreme Court judge;
- abolition of the quota principle for the formation of the HQCJ;
- the activities of the Integrity and Ethics Commission (in particular, bringing to disciplinary liability of Supreme Court judges and the dismissal of the HCJ members);
- changes to the disciplinary procedure.
On January 16, the Constitutional Court began considering the appeal, however, due to the fact that the Parliament’s representative was not ready for a session, after hearing some of the other participants in the proceedings, a break was announced until 21 January.
2. CPLR assessment
At the request of the Reporting Judge in this case, the CPLR gave its opinion on the issues raised in the constitutional appeal. According to the Center, the following provisions are unconstitutional:
- reduction of the maximum number of Supreme Court judges and the mechanism established by law, unless the legitimate purpose of the Supreme Court's reorganization is proven and the constitutional procedure of this reorganization is adhered to;
- shortening the period of providing clarifications from judges or prosecutors regarding court cases in disciplinary proceedings;
- inability to postpone at least the first meeting in a disciplinary case if there is convincing information about the validity of the reasons for the judge, the complainant or their representatives not being present at the meeting.
In the opinion of the Center, the other provisions appealed by the Supreme Court are in conformity with the Constitution.
On January 14, the High Council of Justice (HCJ) approved the Methodology for assessing the professional experience of candidates for the post of the HQCJ member. The maximum number of scores that a candidate can receive under this criterion is 10, of which 5 scores are awarded for professional experience, and the rest – for participation in law-drafting work, the availability of scientific publications, a scientific degree (academic title) and professional achievements. In addition, the selection commission may rate the candidate a score of 0 if reliable information is received about his/her non-compliance with the law or unethical/unfair behavior.
In total, the candidate to the HQCJ will be able to get 100 scores in the competition.
2. CPLR assessment
The approved Methodology establishes discriminatory conditions for candidates who are not judges. For example, candidates with more than 10 years of judicial experience may receive 3 points, while the maximum number of points for a lawyer’s, scientific or teaching activity is 2 (if it continues for more than 5 years). Thus, the HCJ seeks to further secure the privilege for judges during the competitive selection to the HQCJ. This intention is also apparent from the Regulations on the Competitive Selection (see detailed analysis).
In addition, the HCJ has extremely narrowed the assessment boundaries for the Selection Commission members and in the Methodology, it has replaced the qualitative evaluation of the components of the criterion with a quantitative one (although paragraph 2.3 states that qualitative indicators are of primary importance). Based on the content of item 3.1 of the Methodology, the formal compliance of the candidate with a certain component of a criterion indicates that he/she receives the maximum number of scores for this component. The quality of the candidate's professional experience is hardly taken into account.
According to the CPLR experts, by introducing such regulation, the HCJ seeks to influence the outcome of the selection of new members of the HQCJ and completely offset the role of international experts in this procedure. Under these conditions, international organizations may refuse to delegate experts to the selection commission. Therefore, it is important to organize the competition process without any involvement of the HCJ.
On January 16, amendments to the Criminal Code and the Criminal Enforcement Code of Ukraine and the Law of Ukraine “On Administrative Supervision of Persons Released from Imprisonment” entered into force (Law of Ukraine No. 409-IX), which provides for:
1) implementation of the Unified Registry of Persons Convicted of Crimes against Sexual Freedom and Sexual Inviolability of a Child. The Ministry of Justice of Ukraine keeps the registry. The registry users are heads of prosecutors' offices and pre-trial investigation bodies, prosecutors, investigators and other authorized persons of the National Police of Ukraine and the State Bureau of Investigation. In addition, the leadership of pedagogical institutions of different levels has the right to obtain information from the registry on request in the case of hiring a person who will work with young children;
2) strengthening of criminal responsibility for crimes committed against sexual freedom and sexual inviolability of a child (amendments to Articles 152, 153 of the Criminal Code of Ukraine) up to life imprisonment in case of recurrence;
3) strengthening the rules for administrative supervision of such persons. In particular, introduction of the obligation to notify the National Police of the change of their place of residence or stay for another three or six years after the conviction has been withdrawn or expunged.
2. CPLR assessment
The adopted legislative changes are negative, as they can lead to a deterioration of the situation with crimes against sexual freedom of children and violations of personal data protection.
First, strengthening criminal responsibility by simply increasing the sanction is the wrong path that the vast majority of legislative initiatives follow. If the problems are the inevitability of punishment, no increase in the size of the sanction will lead to the desired result. Criminal law is not a universal tool that can "remedy any social problem". The problem of recurrence of such crimes is associated with poor supervision, lack of ability to re-socialize the sentencing of people with pedophilia (as of now, this does not exclude impunity), etc.
Second, equating premeditated murder with aggravated circumstances (sanction – life imprisonment) to repeated sexual assault of a child is a disproportionate punishment. Establishment of the same punishment for murder and rape and sexual assault combined with it can critically increase the number of murders of children during or immediately after committing these crimes. Obviously, if there is a threat of equal punishment, it will affect the behavior of the offender, and there will be no one to testify in the court.
Third, borrowing the idea of the Unified Registry from the American so-called "Megan Law" (1994) is good, but its implementation can have great threats to the protection of personal data. The 'semi-closed' registry model creates a wide field for the misuse and leakage of personal data. The number of law enforcement officials is extremely large (more than ten thousand people), and those receiving information on request (heads of pedagogical institutions) are counted in the hundreds of thousands. Moreover, the period of storage of such data is not set, and also goes beyond the expungement or removal of a criminal record, which does not correspond to the name of the Registry.
In summary, we agree that there is a problem in society, but it needs to be addressed not only by criminal, but also by other instruments. At the same time, the risks of imbalanced sanctions and an unsecured registry outweigh the benefits of the approved changes to the legislation.