Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.
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- Actions and statements of President V. Zelensky in the area of judicial reform are inconsistent
- Law that partially improves litigation procedures has come into force
- High Council of Justice has failed President Zelensky's judicial reform
- Currently there are no legal grounds for dismissing the NABU Director
- President of Ukraine approved the new structure of the State Bureau of Investigation, Regulations on the Public Control Council and the Procedure for its Formation
- Parliamentary committee did not reject draft laws aimed at increasing the number of detained persons
On February 5, President Volodymyr Zelensky said: “We have a difficult situation with the courts. It was always very difficult. They are personalities in this country. We are combating this now. … We are with you, I am sure, we will survive until the moment when the judicial system is restarted. At the same time, I know that there are a lot of decent judges in Ukraine, but, unfortunately, there are a lot of problematic cases that do not allow Ukraine to develop, do not allow investments, both Ukrainian and Western”.
Before that, on February 4, the President appointed Tetiana Rozvalyayeva, a former judge of the High Administrative Court of Ukraine, as a member of the High Council of Justice (HCJ). During her office as a judge, she was part of the so-called "Fifth Chamber," created by former President V. Yanukovych to consider lawsuits against him, the Parliament, the High Council of Justice, and the High Qualifications Commission of Judges. As the CPLR experts noted back in 2010, analyzing the decisions of this Chamber: “... we can observe a strong tendency to creating artificial barriers by the court to satisfy the claimants' lawsuits against the highest authorities, both those that have been filed and those which will come in the future." She also passed a decision that led, among other things, to Ukraine’s loss in the European Court of Human Rights in the case “Oleksandr Volkov v. Ukraine”.
Last year, President Volodymyr Zelensky appointed Oksana Blazhivska to the HCJ; she began her judicial career in 2010, when her father was the deputy of two Prosecutors General, first Oleksandr Medvedko and then Viktor Pshonka. The movement "Chesno: Filter the Court" revealed the facts of her failure to declare property rights that is not compatible with the criteria of integrity.
Moreover, in August 2019, the President set up a Legal Reform Commission, which, in fact, is expected to develop a judicial reform strategy for the coming years. However, this commission also included five judges with the findings of the Public Council of Integrity regarding their failure to meet integrity criteria.
2. CPLR Assessment
The President's statements about the complicated situation with the judiciary and the need to restart it are correct. However, his actions in this area are not consistent with the stated goals. The new political power is relying heavily on judges with doubtful reputation. According to the CPLR experts, the judicial system should be rebooted specifically by restarting the judicial governance bodies, which should include experts from the public and international experts with a decisive vote.
On February 8, the Law of Ukraine “On Amending the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Judiciary of Ukraine on Improving the Procedure of Litigation” entered into force.
Key novelties of the Law are:
- establishment of additional procedural filters for admission of cases to the Supreme Court, which may in the future reduce the burden on the Supreme Court;
- establishment of the obligation of the appellate and cassation instances in case of closing the proceedings due to the fact that the case should be considered under the rules of another type of judicial proceedings, and submit it to the competent court of first instance;
- narrowing the possibilities for applying measures to secure a lawsuit, in particular, establishing the inadmissibility of taking measures that result in interference (termination, postponement, suspension) in conducting public competitive procedures held on behalf of the state or territorial community;
- securing exclusive jurisdiction of the Kyiv Economic Court for economic disputes against central executive bodies, regional state administrations, the National Bank of Ukraine and the Accounting Chamber.
2. CPLR Assessment
Earlier, the CPLR issued an opinion on the original version of the draft law, which was partially taken into account.
The Law provides for both positive and negative changes. Introducing additional filters for admission of cases to the Supreme Court can be a positive step, but at the same time it may impair access to court in the context of the failure of the reform of the courts of appeal. In addition, the wording of relevant provisions is too complicated, which does not indicate the high quality of the law.
The legislator's decision to narrow the possibilities of securing a lawsuit also raises concerns, as it could affect the effectiveness of the enforcement of judicial decisions. In addition, the decision to assign the disputes concerning central executive authorities solely with the Kyiv Economic Court is not very successful, since it creates the possibility of manipulating the territorial jurisdiction of cases (in order for a case to be admitted to this court it will only be sufficient to involve the respective body as a co-respondent).
On February 6, 2019, the HCJ adopted a decision “On the Issues of Approval of Personal Composition of the Integrity and Ethics Commission”. In its decision, the HCJ stated that it was impossible to form the personal composition of the Integrity and Ethics Commission due to the fact, that international organizations, which, in the opinion of the HCJ, had the right to submit nominations to the Commission, did not do so within the time limit set by law.
It should be reminded that on November 7, 2019, the Law "On Amendments to Certain Laws of Ukraine Regarding the Activity of Judicial Governance Bodies", initiated by President Volodymyr Zelensky, came into force. Among other things, the law provided for a reboot of the High Qualifications Commission of Judges of Ukraine (hereinafter referred to as the HQCJ) and verification of the current members of the HCJ by the Integrity and Ethics Commission with the involvement of international experts. The law also empowered the HCJ to approve the composition of Commission for the selection of the new membership of the HQCJ, the rules of competitive selection and the composition of the Integrity and Ethics Commission.
On December 26, 2019, a competitive selection to the High Qualifications Commission of Judges (the HQCJ) began, where international organizations were required to delegate their representatives to the selection commission before January 3, 2020, and the applicants were required to submit documents for participation before January 13. As none of the international organizations has submitted their nominations, on January 21st, the HCJ requested international organizations again to submit nominations, having previously extended the deadline for submitting nominations to the selection commission by the international organizations until February 5. However, this time international experts did not propose their candidates to the HCJ. In connection with this, on February 4, the HCJ again extended the deadline for the formation of a selection commission by international and foreign organizations for holding a competitive selection to the HQCJ until March 10.
In order to participate in the formation of the Integrity and Ethics Commission, on November 27, 2019, the United States Agency for International Development and the Embassy of the United Kingdom of Great Britain and Northern Ireland submitted proposals to the HCJ to include international experts to the Integrity and Ethics Commission, which, in particular, was reported by the Official Website of the President of Ukraine.
However, the HCJ decided to reject these nominations because it interpreted the law in such a way that only organizations officially registered in the list of organizations with which Ukraine cooperates in the area of prevention and combating corruption can nominate their members to the Commission.
2. CPLR Assessment
In the Political Points of December 9-16, 2019, the CPLR experts expressed doubts that international organizations were delegating their representatives to the selection commission for the selection of a new composition of the HQCJ. This is because the HCJ, by approving the procedure for the competitive selection, completely neglected the role of international experts, and created the possibility for manipulative selection.
The CPLR experts are of the opinion that another extension by the HCJ of the deadline for submitting candidates to the selection commission is the HCJ’s attempt to shift the blame for the failure of the new HQCJ’ formation to international organizations. It is doubtful that international organizations that have not twice sent their representatives within the deadline set by the HCJ will do so for the third time. A solution would be to adjust the law in order to remove the HCJ from the process of forming a new HQCJ.
It is also clear that the HCJ was not interested in forming an Integrity and Ethics Commission that could potentially threaten the loss of positions for some of the current HCJ members. The law clearly stipulates that only those experts who applied the Public Council of International Experts, formed in accordance with the law on the High Anti-Corruption Court, may be recommended to the Commission. Therefore, the applications submitted to the HCJ met the criteria set by law.
Currently, the only possible way to unblock the formation of the Integrity and Ethics Commission is to amend the law. According to the CPLR experts, the law should be amended to eliminate any opportunity for the HCJ to block the formation of the Integrity and Ethics Commission, and to remove it from participating in the formation of the selection commission for a new composition of the HQCJ.
The Verkhovna Rada registered a draft Resolution on the dismissal of A. Sytnyk from the position of Director of the National Anti-Corruption Bureau of Ukraine (NABU) (Reg. No. 3039 of 07.02.2020). The draft law was initiated by eight people’s deputies from the parliamentary faction of the political party "Servant of the People" and one deputy from "European Solidarity" party.
2. CPLR Assessment
Part 1 of Article 6 of the Law “On the National Anti-Corruption Bureau of Ukraine” states that the NABU Director shall be appointed and dismissed by the President of Ukraine in accordance with the procedure established by this Law, and in the sixteenth paragraph of part 4 of this Article it is emphasized that “Director of the National Bureau cannot be dismissed, and the decree of the President of Ukraine on his/her appointment cannot be revoked except for the reasons stated in this part” (i.e., in part 4 of Article 6 of the Law).
At present, there are no grounds for dismissal of the NABU Director, as provided for in paragraphs 6-12 of Part 4 of Article 6 of the Law, and the provisions of paragraph 2 of Part 1 of Article 13 of the Law "On the National Anti-Corruption Bureau of Ukraine" (according to which a person who has been subject to administrative penalties for committing a corruption offense within the last year or prosecuted for a premeditated crime cannot be appointed to the NABU) are not applicable to the reasons of dismissal of the current head or employee of the NABU.
In addition, the NABU Director is not subject to disciplinary responsibility under the Law "On the National Anti-Corruption Bureau of Ukraine", since there is neither a body that could make a relevant decision on it nor a procedure: the Labor Code of Ukraine cannot be applied because the grounds and the procedure for bringing NABU employees to disciplinary responsibility are stipulated solely by the above Law, and the NABU Director cannot adopt a decision to bring him/herself to disciplinary responsibility based on the principle of nemo judex in causa sua – no one is a judge in own case. According to the Law, the National Bureau is not a central body of executive power, and its Director is neither a member of the Cabinet of Ministers of Ukraine nor the head of a central executive body; therefore, the provisions of paragraph 12 of Part 1 of Article 42, Article 45 of the Law “On the Cabinet of Ministers of Ukraine” on disciplinary responsibility cannot be applied to him/her.
On February 5, the President of Ukraine by his Decree No.41/2020 approved the organizational structure of the State Bureau of Investigation and the Decree No.42/2020 approved the Regulations on the Public Control Council under the SBI and the Procedure for its formation.
According to the Decree, the organizational structure foresees the following innovations: the Personnel Training Institute and the Scientific and Research Institute of Forensic Examinations are being set up in the SBI.
The new Regulations on the PCC extends its term of office to two years, clarifies the procedure for early termination of member's powers, etc. The procedure for the formation of the PCC stipulates that now, in addition to online voting, candidates must write an essay and have an interview with the selection commission.
2. CPLR Assessment
In accordance with the amendments approved by the Law No. 305-IX (December 2019) to the Law of Ukraine “On the State Bureau of Investigation”, the structure of the State Bureau of Investigation, the Regulations of the Public Control Council and the Procedure for its formation shall be approved by the President of Ukraine upon submission of the Director of the State Bureau of Investigation.
As regards the changes to the organizational structure of the SBI, they are positive in nature. First of all, establishing an in-house expert institution is an important step in improving the effectiveness of pre-trial investigation, especially given the Bureau's jurisdiction and the need to address in first place the State Research Expert Forensic Center, which is part of the Expert Service of the Ministry of Internal Affairs of Ukraine (potential conflict of interests).
In terms of changes to the documents governing the activities of the PCC at the SBI, they are conceptually positive. As this body is given significant powers, it is important to strengthen the safeguards of its activities by clarifying the legislative provisions. The PCC at the SBI delegates three members to the Disciplinary Commission of the SBI, the total number of which is five, i.e. the majority of votes are received by the public. Thus, it is a powerful tool for influencing the Bureau. During the previous two convocations of the PCC there was a fierce struggle, in particular against violation of the law, and the Disciplinary Commission was never created. The proposed two-step selection procedure is supposed to minimize the risk of misappropriation of the institute of disciplinary action at the Bureau.
At the same time, it is a matter of concern that the SBI Director is granted powers that are not provided for in the relevant Law (approval of the PCC composition), as well as that new requirements to the PCC members not provided for by the Law are stipulated (for example, 10 years of professional experience). Since the Law on the SBI does not contain such powers or requirements, and the by-law has lesser legal force, they may be subject to appeal in administrative court.
Last Wednesday, on February 5, 2020, the Law Enforcement Committee of the Verkhovna Rada of Ukraine sent back draft laws No. 2611, 2620 and alternative thereto – 2620-1 to the subjects of the legislative initiative for improvement.
These draft laws propose to supplement Part 4 of Article 183 of the Criminal Procedure Code of Ukraine with the additional grounds based on which the investigating judge or the court, when passing an order on the application to a suspect or an accused of a precautionary measure in the form of detention, may not determine for the same suspect or accused an alternative precautionary measure in the form of a bail.
Draft law No. 2611 proposes to extend the said provision of Part 4 of Article 183 of the Criminal Procedure Code of Ukraine to criminal proceedings concerning especially serious crimes in the area of trafficking in narcotic drugs, psychotropic substances, their analogues or precursors; draft laws No. 2620 and 2620-1 – to criminal proceedings concerning serious and particularly serious corruption offenses.
2. CPLR Assessment
According to the explanatory notes to these draft laws, their purpose is to properly prevent the risks that may impede the tasks of criminal proceedings against the listed categories of crimes. At the same time, judicial statistics refute the allegations made by the subjects of legislative initiative. For example, in 2018, only 1.68% of all cases where a precautionary measure was elected in the form of a bail, there was a breach of the duties of the suspected or accused. In other words, the choice of a precautionary measure in the form of a bail does not cause systemic and significant problems for criminal proceedings.
Instead, the subjects of a legislative initiative neglect or pay insufficient attention to the fact that their proposals will result in an increase in the number of persons kept in detention facilities. This is despite the fact that, according to the European Court of Human Rights and other competent authorities, Ukraine has long had a deep and systematic problem with places of detention.
For example, on January 30 this year, the European Court of Human Rights issued a pilot decision in “Sukachev v. Ukraine” case, again emphasizing the structural problem of poor conditions of detention in Ukraine. The ECHR unanimously found a violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights due to the cumulative overcrowding effect, poor lighting and ventilation and sanitary conditions in the cells in which the applicant was held.
The ECHR suggested that this problem cannot be solved solely by increasing the financial allocation to the penitentiary system. Instead, Ukraine should review current law and practice on remand in custody and sentencing, as well as on alternative punishments to imprisonment.
Therefore, the ECHR recommended that alternatives to pre-trial detention be widely used, such as house arrest, restriction on leaving or access to a place without permission, bail or supervision and assistance from an agency appointed by the court. In addition, the ECHR reiterated several times in this decision that prosecutors and other law enforcement officials of Ukraine should be encouraged to reduce the frequency of applications for detention and their extension (except for the most serious cases), and judges should be encouraged to use alternatives to detention as much as possible.
Therefore, in view of the practice of national and international justice bodies, the Law Enforcement Committee should recommend that Parliament rejects these draft laws.