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19 february 2020

Political Points of the CPLR for 10 – 17 February 2020

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.

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to doboni@pravo.org.ua.


People’s deputies want to level up the compensation of retired judges

1. Event

On February 7, a group of People's Deputies from the “Servants of the People” and “Opposition Platform – for Life” factions submitted to the parliament a draft law No. 3032, which stipulates the right of a judge to receive high monthly life allowance, regardless of whether he/she has passed a qualification assessment.

Currently, a retired judge can count on an increased amount of life allowance if he or she has passed the qualification assessment and worked out at least three years after.

2. CPLR Assessment

The authors of the draft law propose to equalize judges who have not passed/passed the qualification assessment. It should be reminded that in 2015, the Ukrainian authorities explained the need for such an assessment by the prevalence of corruption and incompetence among judges, the almost complete lack of confidence in the judiciary among citizens, and negative experience of political interference in the appointment of judges in the past.

Implementation of the proposed changes will result in a significant increase in the budget for the maintenance of judges, some of which would have to be dismissed or were dismissed as a result of a qualification assessment, which clearly distorts the ideas of clearing the judicial corps laid in 2016.

The burden on taxpayers related to the maintenance of retired judges will increase significantly. Increase in payments from the Pension Fund, which is provided by the draft law, is not envisaged in the state budget.

In this regard, it is advisable to reject the draft law.

Draft law on the jurisdiction of cases from temporarily occupied Crimea has been registered

1. Event

On February 10, People's Deputies of the “Servant of the People” faction, R. Gorbenko and T. Tarasenko, submitted to the Parliament a draft law No. 3048 on establishing alternative jurisdiction for civil cases under the jurisdiction courts in the temporarily occupied Crimea. Currently, such cases are being considered by courts in Kyiv.

The authors of the draft law propose to establish that if one of the parties to the dispute is a natural person permanently residing in the temporarily occupied Crimea, then any local general court of Kherson region may consider the case at his/her request, and if the case is under the jurisdiction of the court of appeals, it can be submitted to the Kherson Court of Appeal. Such a request may be filed simultaneously with the statement of claim or after the case has been opened.

2. CPLR Assessment

The mechanism proposed by the authors contains some drawbacks. In particular, the right of a party to file a request to refer a claim after the opening of proceedings in practice may lead to abuse of this mechanism to delay the hearing of the case, since in fact the party may file a corresponding request before the court proceeds to the meeting room, which will necessitate a retrial. In addition, such a possibility contradicts the provisions of the Code of Civil Procedure of Ukraine, which stipulates that a case accepted for consideration by a court with observance of the rules of jurisdiction, should be considered by this court even in the case when in the course of proceedings it became the responsibility of another court (part 2 of Article 31).

In general, the idea of ​​improving access to justice for persons permanently residing in a temporary occupied territory is correct. However, the way in which the authors of the draft law No. 3048 attempt to do so requires further elaboration.

Government proposes to restore arbitration tribunals in Ukraine

1. Event

On February 10, the Government introduced to Parliament a draft law № 3045 on improving the procedure for the establishment and operation of arbitration tribunals in order to restore confidence in the arbitration tribunal.

The draft law proposes to:

  • improve the procedure for registration of permanent arbitration courts (the Ministry of Justice is proposed as the only registration authority);
  • establish more strict requirements for organizations where permanent arbitration courts can be formed (non-profit making and at least 5 years of activity before the establishment of the arbitration court);
  • extend the powers of the Arbitration Chamber, in particular, to attribute to its powers the establishment of the conformity of the founder of the arbitration tribunal with the requirements of the law;
  • expand the jurisdiction of arbitration tribunals, in particular, to return the power to hear real estate disputes.

2. CPLR Assessment

The draft law contains ideas that can really have a positive impact on the development of arbitration in Ukraine, which will eventually reduce the burden on the courts.

Previously, as a result of overly liberal demands, many “pocket” arbitration tribunals were created, which were used for raider seizure of property. Thereafter, the legislator significantly narrowed the jurisdiction of arbitration tribunals, which offset their role as an alternative way of resolving disputes.

Significant increase of the requirements to the founders of arbitration courts in parallel with the extension of their competence will contribute to resolving these problems.

 

Parliament may again politicize the competitive selection of the SBI director

1. Event

Last week, on February 12, 2020, the Parliamentary Committee on Law Enforcement decided on the candidates who would be recommended to the Verkhovna Rada of Ukraine for inclusion in the selection commission for the competitive selection to the position of director of the State Bureau of Investigation. The Committee's recommendations were given to two of its members – MPs Yuliia Yatsyk and Vladlen Neklyudov (both are members of the "Servant of the People" faction), as well as to Yuriy Ponomarenko, a lecturer at Yaroslav the Wise National Law University (Kharkiv).

2. CPLR Assessment

A similar situation had already taken place during the last competitive selection of the SBI director, when the Verkhovna Rada of Ukraine delegated people's deputies to the respective selection commission (last time, three MPs were delegated). As a result, the last competitive was marked by a number of scandals due to the influence of political actors on the work of the selection commission. After all, the delegation of representatives from the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine and the President of Ukraine was justified solely by the logic of political struggle. Accordingly, the principles for electing an SBI director derived from politics, not law.

In order to avoid such situations, appropriate preventive mechanisms have been introduced in separate laws. For example, the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine" provides that the selection commission for the selection of a director of NABU may not include persons authorized to perform functions of state or local self-government, in accordance with the Law of Ukraine "On Prevention of Corruption". A similar provision is contained in the Law of Ukraine “On Prevention of Corruption”, specifically in the article, which defines the procedure for selection of the Head of the National Agency for the Prevention of Corruption.

Notwithstanding the fact that there is no similar provision in the Law of Ukraine "On the State Bureau of Investigation", the Verkhovna Rada should simply apply a similar approach in relation to the delegates to the selection commission for the election of the SBI director. In other words, the Verkhovna Rada should disagree with the recommendations of the profile committee, and the profile committee should re-submit recommendations on candidates nominated solely from a number of persons who are not authorized to perform the functions of state or local self-government, in accordance with the Law of Ukraine "On Prevention of Corruption".

Will the President of Ukraine pay the fine?

1. Event                    

On February 14, the National Agency for the Prevention of Corruption (NAPC) announced on its web site about the conduct of an examination on the timeliness of submission of a notice of significant changes in the property situation by the President of Ukraine Zelensky V.O.

Earlier, it was also reported that Oleksiy Honcharenko, a member of the European Solidarity faction, addressed the NAPC regarding the violation by the President of Ukraine V.O. Zelensky of legislative requirements on mandatory declaration of spending on vacations, noting that during his stay in Oman the President of Ukraine lived with his wife and children at the 5-star Al Bustan Palace Ritz-Carlton Hotel, which costs about 100-135 thousand UAH per day in a deluxe room, and in general for the holiday period he spent not less than 2.5 million UAH. In addition, the cost of a charter flight is between $ 63,000 and $ 75,000.

On February 15, the press-service of the President of Ukraine announced that during a panel Townhall on Ukraine at the 56th Munich Security Conference, Volodymyr Zelensky urged not to call Ukraine a corrupt state, because that is no longer true.

Finally, the “Schemes” TV show disseminated information that Volodymyr Zelensky had returned from Oman by the same aircraft that on the same day had taken to Oman the Russian Secretary of the National Security and Defense Council Mykola Patrushev.

2. CPLR Assessment

As follows from the note to Article 50 and Part 2 of Article 52 of the Law "On Prevention of Corruption", in case of a significant change in the property status of the President of Ukraine, in particular, making expenditures or receiving a gift in the amount of more than UAH 105.1 thousand, within 10 days from the moment of making the expenditures or receiving a gift he shall be obliged to notify the NAPC in the manner specified by the latter. This information shall be entered in the Unified State Register of Declarations of Persons Authorized to perform Functions of the State or Local Government and published on the official website of the NAPC.

According to Part 2 of Article 172-6 of the Code of Ukraine on Administrative Offenses (CUAO), failure to notify or untimely notification of significant changes in property situation is a corruption related offense, which provides for imposing a fine in the amount from 100 to 200 non-taxable minimum incomes of citizens (UAH 1,700 – 3,400).

The NAPC is authorized to draw up reports on the said offenses, and consideration of the cases on their commission falls under the jurisdiction of local courts (Articles 221, 255 of the Code of Administrative Offenses).

Neither the Law “On Prevention of Corruption” nor the Code of Administrative Offenses make exceptions for the President of Ukraine on the impossibility of holding him administratively liable for corruption-related offenses. Note to Article 172-6 of the Code of Administrative Offenses specifies that offenders under this article are the persons who in accordance with paragraphs 1 and 2 of Article 45 of the Law on Prevention of Corruption are obliged to file a declaration of a person authorized to perform the functions of state or local self-government. Parts 1 and 2 of Article 45 of the aforementioned Law, despite the existence of a rather abstract constitutional rule on the right of inviolability enjoyed by the President of Ukraine (Article 105), specify that the persons referred to in subparagraph 1 of paragraph 2 of part 1 of Article 3 are obliged to file a declaration, and the President of Ukraine is directly mentioned in this subparagraph.

If the said inviolability right implied the President's immunity from administrative responsibility, the Verkhovna Rada of Ukraine should not have included a reference to the President of Ukraine in Articles 3, 50, 56 of the Law “On Prevention of Corruption” when adopting this Law, and the President of Ukraine should not have signed it accordingly. However, this has never happened when this Law was adopted and when it was amended. Therefore, the right of inviolability should be considered as such that implies only immunity from criminal liability, since Article 111 of the Constitution of Ukraine provides that the President of Ukraine may be removed from office by impeachment only in the event of committing a crime.

According to Article 59 of the Law “On Prevention of Corruption”, information on persons who have been held administratively liable for committing corruption-related offenses is entered in the Unified State Register of Persons who have Committed Corruption or Corruption-Related Offenses that is formed and maintained by the NAPC.

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Попередня новина 31 march 2020
Наступна новина 12 february 2020