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November

Political Points 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 Points for the last week of the current month every Tuesday by mail, please send an e-mail to doboni@pravo.org.ua (Mariana Doboni, Сommunication manager).

Political Points for 25 November – 2 December 2019

Political Points for 18 – 25 November 2019

Political Points for 11 – 18 November 2019

Political Points for 4 – 11 November 2019

Political Points for 28 October – 4 November 2019

 

Political Points for 25 November – 2 December 2019

Ukraine`s international partners made first step to implement “Judicial Reform”, which started by President Zelenskiy

Event

On November 27, the US Agency for International Development and the Embassy of the United Kingdom of Great Britain and Northern Ireland in Ukraine submitted to the High Council of Justice (HCJ) nominations for inclusion in the Integrity and Ethics Commission (Ethics Commission), which will check the members of the High Qualifications Commission of Judges, High Council of Justice and the Supreme Court for compliance with their status requirements.. They were Carlos Castressana, Giovanni Kessler and Robert Cordy. Claudia Escobar has been appointed as a replacement expert.

CPLR Assessment

Ethics Commission should be established by February 05, 2020 and consist of 3 HCJ members and 3 international experts.

Ukraine's international partners have done their part of work to establish an Ethics Commission and, in general, undertaken the first step in implementing the innovations foreseen by the “Judicial Reform”, which started by President Zelenskiy. Instead, the HCJ, which is responsible the Commission’s launch, has not yet taken any action. In particular, first of all, the Council should amend its own rules of procedure in terms of the formation of the Ethics Commission, and then nominate three members to it. According to information from the HCJ's official website, these issues will not be considered at the next meetings (until December 12) (or they are hidden under the item "Miscellaneous", which, due to the termination of online broadcasts of the meetings by the Council, do not add openness to the discussion on this decisions).

In fact, the HCJ may block the establishment of the Ethics Commission by not amending its own rules of procedure, as otherwise the Commission will not be able to work, because the procedure for approval of international experts within its composition will not be determined.

The start of the Ethics Commission is not in the interests of the current composition of the HCJ, as its primary task will be to check the integrity of these members, by virtue of which they may be dismissed. In the same time, in the opinion of the CPLR experts, pointed, that entrusted the implementation of judicial reform to the judiciary bodies itself and making it inaccessible from them was not the best decision of the lawmaker.

 

Prosecutor General's accusations of judicial reform sabotage by Supreme Court are groundless

Event

On November 14, the Prosecutor General R. Ryaboshapka said in an interview: “The President took the first step trying to restart the body responsible for the selection and dismissal of judges. At once, we saw sabotage on the part of this body responsible for the dismissal of judges, on the part of the High Council of Justice as well as the Supreme Court. I believe more radical actions are needed here. It may be necessary to try to communicate with the saboteurs within the framework of the Code of Criminal Procedure. … If people continue to sabotage the law, it is obvious that we will have no other way. We will help the country educate fair judges. Honest ones” (translated by the author).

On November 21, the HCJ approved a public address in relation to the above comment, in which it called inadmissible R. Ryaboshapka's political comments on the pace of reform implementation and dissemination of information in order to discredit the judiciary or influence the HCJ.

On November 27, R. Ryaboshapka specified what he meant: “These two institutions are not making sufficient efforts to actively start judicial reform. If sabotage on the part of the Supreme Court and the High Council of Justice is of a criminal nature, we will have no choice but to respond to such actions within the framework of criminal procedural law ”(translated by the author).

CPLR assessment

Given the level of office occupied by R. Ryaboshapka, his comments can indeed be seen as pressure on the judiciary. However, it is worth noting that the HCJ does not really make effort to implement the legislative changes, since the Council has not yet approved the competition rules for the High Qualification Commission of Judges of Ukraine, has not amended its own rules of procedure on the establishment of the Ethics Commission and has not delegated 3 members to its composition. Instead, the HCJ had sufficient time for regulatory and informational support to the termination of broadcasting its own meetings.

In the same time, the allegations of sabotage by the Supreme Court are unfounded, since no action is required from it to implement the reform. The court is subject to reform (as the staff number of judges should be reduced) but not its implementer. Petition of the Supreme Court to the Constitutional Court of Ukraine dated November 15 regarding the constitutionality of certain amendments to the legislation on the judiciary is not sabotage, since this right is vested to the Court by the law.

In addition, further developments may indicate the pressure on the Supreme Court in order of influence to the Head of the Court V. Danishevska. In particular, on November 27, a decision was taken at a meeting of the Verkhovna Rada Committee on Legal Policy beyond the established agenda, when only representatives of the Sluha Narodu faction stayed in the meeting room, to address law enforcement agencies on allegedly falsifying the seal of the Supreme Court of Ukraine (which, according to transcripts disclosed by the journalists is associated with the Chairman of the Supreme Court V. Danishevska).

 

Political Points for 25 November – 2 December 2019

 

Political Points for 18 – 25 November 2019

The Parliament put under threat the investigation in the ‘Maidan cases’

1. CPLR expert opinion

On November 20 investigative bodies of the prosecution office lost the right to conduct pre-trial investigations. Investigators from these particular bodies investigated crimes committed during the Revolution of Dignity (the so-called ‘Maidan cases’). According to the legislation, uninvestigated cases have to be transferred to the State Investigation Bureau (SIB). Taking into account that investigation of these cases by investigators from the prosecution office has been conducted for a long period of time, transferring these cases to the new pre-trial investigation body will negatively affect the quality, speed, and comprehensiveness of the investigation and can potentially completely unravel the whole investigation.

Due to the inactivity of the Parliament, investigation of the ‘Maidan cases’ was put under threat. This pushed Yevhenia Zakrevska, the lawyer of the Heavenly Hundred’s families, to declare hunger strike which will last until the relevant amendment is passed and investigators and prosecutors transferred to the SIB.

2. Respective authorities counter-point/argument

Head of the “Servant of the People” faction which secures a majority in the Parliament David Arakhamia informed that it was impossible to convene an extraordinary session of the Parliament because “members of the parliament work in their constituencies” and for that reason, it was necessary to “wait patiently till December 3”.

At the same time, “Holos” party supported an initiative to hold an extraordinary session of the Parliament.

3. CPLR assessment of the authorities counter-point

A possibility to hold extraordinary sessions of Verkhovna Rada of Ukraine is clearly provided for by the Rules of Procedures. D. Arakhamia’s reference to MPs working in constituencies is not a valid argument since extraordinary sessions are by definition held in situations of urgency. According to the information provided by Yevhenia Zakrevska, by November 20 out of 67 investigators of the Special Investigations Department of the General Prosecution Office, only 25 left, which means that by December 3 there will be no prosecutors to transfer to the SIB. Apart from that, by December 3 Yevhenia Zakrevska will be refusing from food for 13 days.

4. Related legislation/instructions which require the authorities act in a certain manner

According to paragraph 8 of article 19 of the Law of Ukraine “On Rules of Procedures of Verkhovna Rada of Ukraine” Chairman of Verkhovna Rada shall convene a supplementary (extraordinary) plenary meeting on justifiable request by officials and agencies authorized to request convening of an extraordinary session of the Verkhovna Rada, subject to the Constitution of Ukraine (President of Ukraine, ⅓ of the constitutional number of parliamentarians), and at the proposal of the Conciliation Commission within three days in case of emergencies between plenary meetings during the session period. The agenda of such meetings shall include only those matters indicated in the requests for such meeting.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

CPLR supports demands laid down by the Advocacy Advisory Panel. In particular, we think that the President should have initiated an urgent draft law aimed at solving this problem and requested convening of an extraordinary meeting of Verkhovna Rada of Ukraine to pass an amendment which would allow preserving investigation in ‘Maidan cases’ by means of creating a dedicated investigation department in the SIB and transferring investigators and prosecutors working on ‘Maidan cases’ to this department.


Political Points for 11 – 18 November 2019

High Council of Justice has amended its Regulations to limit the openness of its activities

1. CPLR expert opinion

On November 11, the High Council of Justice (HCJ) amended its Regulations in connection with the entry into force of the Law of Ukraine No. 193-IX on the Activity of Judicial Governance Bodies. These amendments not only eliminated one of the novelties introduced by the said law, but also became a significant step backward in the transparency of HCJ’s activities.

Law No. 193-IX virtually eliminated the institute of a meeting room in HCJ, as it made clear that decisions should be adopted in the meeting room only in a few exceptional cases. In all other cases, the decisions must be made publicly.

However, in the new wording (paragraph 5.20 of the HCJ Regulation), upon the proposal of the Chairman, the issue may be discussed before the end of the consideration of the agenda, and at the request of at least one HCJ member, such discussion shall be held in the meeting room. Such a change makes it possible to bypass the legislative requirement for public decision-making, since Council members can now pre-discuss decisions in a meeting room, reach a compromise, and formally vote in favor of the decision in the public part of the proceedings.

In addition, the amendments made to the HCJ Regulation stipulate that video broadcasts of the HCJ meetings shall be made only with the request/consent of all parties. Previously, as a general rule, all meetings were broadcast, except in certain cases, while now the HCJ has radically changed this rule, and only those meetings will be broadcast, where not only the parties object, but one of the parties has made a request. Given that the Regulation requires the consent of all parties to broadcast, it can be argued that the number of broadcasts of the HCJ meetings will decrease substantially, which will inevitably lead to a decrease in the transparency of the HCJ activities and the social legitimacy of its decisions.

2. Respective authorities counter-point/argument

The HCJ explained the changes made to restrict video broadcasts of meetings by the need to take measures to ensure the authority and independence of the judiciary, prevent the disclosure of personal data and pre-trial investigation information. The HCJ also noted that this approach is in line with international standards and expert recommendations.

3. CPLR assessment of the authorities counter-point

First, the HCJ has been broadcasting its meetings since 2015. That is to say, for four years, no questions have been raised regarding the independence of the judiciary, and no secrets protected by the law have been disclosed. Instead, only now, after the Law of Ukraine No. 193-IX eliminated the meeting room in the activity of the Council, the question arose about the need to protect the authority of the judiciary.

Secondly, the changes made to the video broadcasting regulations are applicable to all HCJ procedures. In addition to resolving issues of disciplinary action and dismissing a judge from justice, the HCJ also considers transferring judges, appointing them to office, taking measures to ensure the independence of the judiciary. The HCJ did not justify the limitation of video broadcasting in these situations. It seems that the HCJ members want to avoid public accountability in this way.

Third, the method of ensuring the authority of the judiciary chosen by the HCJ is not in fact related to the stated purpose. The HCJ decisions, including disciplinary proceedings, are posted on the Council's website and communicated publicly on Facebook. That is, any person can find out whether a judge who is considering his or her case is or was brought to disciplinary responsibility, as well as the circumstances that led to it. Termination of video broadcasts will in no way affect the protection of "sensitive" information about a judge, since the relevant circumstances will nevertheless be set out in a decision regarding him that will become publicly available.

4. Related legislation/instructions which require the authorities act in a certain manner

Pursuant to Part 1 of Article 30 of the Law “On the High Council of Justice”, meetings of the HCJ and the Disciplinary Chambers shall be held openly. A closed meeting shall be held in exceptional cases, on the grounds specified by this Law. Part 7 of the aforementioned Article stipulates that minutes of the meetings of the HCJ and the Disciplinary Chambers shall be kept and that the meeting shall be fully recorded by technical means.

According to part 3 of Article 34 of the said Law, the decisions of the HCJ and its bodies shall be adopted at the meeting. A decision of the HCJ and its bodies can be adopted in the meeting room: if the consideration of an issue in an open meeting may lead to the disclosure of a secret protected by law; to prevent the disclosure of information about the intimate or other personal aspects of the lives of persons involved in disciplinary proceedings.

Paragraph 5.20 of the HCJ Regulation specifies that, before consideration of the case (agenda item) is over, the chair of the meeting proposes to discuss the case (agenda item) on the spot or in the meeting room, and if at least one of the board members insists – in the meeting room.

According to paragraph 2 of item 6.1 of the HCJ Regulation, video broadcasting of meetings of the Council can only take place if there are requests (consent) of all parties (persons in relation to whom the agenda item is considered), and the Council shall adopt relevant decision as a result of consideration thereof.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The CPLR experts are of the opinion that, as a general rule, all HCJ meetings should be broadcast. Only in the event that the public hearing of the case may harm the secrecy protected by the law, partial restriction of the video broadcast of the meeting to the extent necessary to protect such secrecy is permissible.

Changes to the preliminary discussion of the issue in the meeting room are aimed at circumventing the novelties introduced by the Law of Ukraine No. 193-IX on the liquidation of the meeting room.

In our view, these changes should be abolished.

 

Deputies will try to make the SBI dependent on the President

1. CPLR expert opinion

On November 13, 2019, the Parliamentary Committee on Law Enforcement approved the wording of the draft law No. 2116 “On Amendments to Certain Laws of Ukraine on Improving the Activity of the State Bureau of Investigation” for the second reading. The above draft law was introduced by the President (hereinafter – the draft law).

The vast majority of the proposed provisions are aimed at simplifying the structure and governance procedure in the SBI and are consistent with the general approach that is implemented by other central executive bodies. At the same time, the draft law proposes a number of other major changes:

  • the SBI’s status is changed from a central executive body to a state law enforcement agency;
  • the powers of the current Director of the SBI and his deputies are terminated ahead of schedule, and the President is supposed to appoint someone temporarily acting as a Director of the SBI;
  • composition of the renewed Selection Commission for the election of the SBI’s Director will include three persons, identified by the Cabinet of Ministers on the basis of proposals from international organizations;
  • operational, organizational, technical and informational support of the activity of the Selection Commission for the election of the SBI’s Director and its members will be provided by the President's Office;
  • organizational structure of the SBI will be determined by the President;
  • Provisions on the Public Control Council at the SBI and the procedure for its formation will be approved by the President upon the submission of the SBI’s Director;
  • control over the activity of the SBI will be exercised by the Verkhovna Rada Committee responsible for law enforcement issues;
  • based on the results of consideration of the report of the SBI’s director, the Parliament will be able to recognize his progress on investigations as satisfactory or unsatisfactory. If the activity of the SBI’s Director is recognized unsatisfactory, this can be the reason for his dismissal;
  • the quota system for operational posts in the SBI is abolished;
  • the mechanism of out-of-competition transfer of investigators of prosecutors' offices and prosecutors conducting pre-trial investigations or conducting procedural guidance (for at least four consecutive months within the teams of investigators or prosecutors) in criminal proceedings concerning the events on the Maidan is introduced.

The proposal to change the status of the SBI from a central executive body to a state law enforcement agency has no legal, regulatory or other grounds. The status of a “state law enforcement agency” is an entirely artificial legal construction, which does not in any way align with or derive from the provisions of the Constitution. At the same time, implementation of the proposed changes would be contrary to the constitutional principle of separation of powers, since the SBI is a typical law enforcement agency (pre-trial investigation body) and, accordingly, by its functional purpose, organizational model, area of activity and ordinary constitutional status corresponds to the characteristics of the executive body.

As stated by the Constitutional Court of Ukraine in its decision of June 13, 2019 №5-p/2019, the formation of a permanent independent state body, which by functional purpose, sphere of activity, powers has the characteristics of a central body of executive power, but is not subordinated to the Cabinet of Ministers and does not belongs to the system of executive bodies, is contrary to the Constitution.

Therefore, changing the status of the SBI will have only one consequence – contrary to the Constitution it will allow to subordinate the SBI to the President. It is necessary to emphasize that even the draft Law of Ukraine “On Amending Article 106 of the Constitution of Ukraine (regarding the powers of the President of Ukraine to create independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine and the Director of the State Anti-Corruption Bureau)” (No. 1014 of 29.08.2019), if adopted by the Verkhovna Rada of Ukraine, will not become the legal basis for expanding the powers of the President. The powers to determine the members of the Selection Commission for the election of the SBI director, to provide operational, organizational, technical and informational support of the activity of the Selection Commission for the election of the SBI Director and its members, to approve the organizational structure of the SBI, as well as the Provisions on the Public Control Council and the procedure for its formation, will remain unconstitutional. However, most importantly, the aforementioned amendments to the Constitution will not change the functional purpose, scope and powers of the SBI. The law enforcement agency (pre-trial investigation body) will continue to be characterized by features that are inherent in the central executive authority.

The amendments proposed by the draft law, which, contrary to the Constitution, confer on the President additional powers over the SBI, are not autonomous and are based solely on changing the status of the SBI from a central executive authority to a state law enforcement agency. Since without change of status, the President's role in organizing the activities of the SBI will look even more unjustified and will make the imbalance of power in the triangle "Verkhovna Rada – Cabinet of Ministers – President" even more obvious in favor of the President. In addition, the extension of the President's authority in the sphere of executive power does not agree with the form of state government defined in the Constitution – the parliamentary-presidential republic.

In this respect, it should be reminded that the SBI is empowered to investigate criminal offenses committed by MPs, judges, prosecutors, law enforcement officials and servicemen. In addition, it is planned to pass a draft law in the near future that will finally deprive members of parliament of their immunity from prosecution. In other words, the President’s control over the SBI poses a very serious threat to the independence of representatives of other branches of power, first of all, to members of parliament.

The additional powers vested in Parliament also raise reservations.

The draft law proposes to allow the Verkhovna Rada to dismiss the director of the SBI after considering his annual report. However, the draft law does not contain any safeguards against the arbitrary decision of Parliament to dismiss the director of the SBI. For example, the appropriate safeguard is contained in the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”. Article 6 of this Law stipulates that the NABU Director shall be dismissed in the event of the conclusion of the commission to conduct an independent evaluation (audit) of the National Bureau's performance on the ineffectiveness of the National Bureau's activities and the improper performance of its director's duties. Similar provision was contained in the Law of Ukraine "On the Prosecutor's Office" – until recently this Law stipulated that in the event of termination of powers of the Prosecutor General as a result of distrust expressed by the Verkhovna Rada of Ukraine, the Verkhovna Rada receives from the Qualification and Disciplinary Commission of Prosecutors a conclusion on the performance of duties by the Prosecutor General.

It is noticeable that the Verkhovna Rada plans to take advantage of the absence of these safeguards in the near future. The text of the draft law approved in the first reading did not contain a provision for early termination of powers of the SBI leadership. However, during the preparation of the draft law for the second reading, its text was supplemented by such a provision. That is, the first case of dismissal of the SBI’s Director without proper analysis (evaluation) of his activity will take place already in the case of approval of the draft law. The justification for the amendment is not subject to analysis because it is emotional rather than reasonable.

The abolition of the quota system for posts of operative officers is also unacceptable. The introduction of a quota system for posts of investigators and operative officers in the Law of Ukraine “On the State Bureau of Investigation” was intended to open positions in the SBI to a large number of people who had no experience and, often, even access to work in law enforcement agencies. Therefore, the abolition of these quotas will have the effect that the posts of operative officers will be accessible only to existing and former police, security and tax police officers.

The proposal to introduce a simplified procedure for the appointment of former Prosecutor General's investigators dealing with "Maidan cases" in the SBI is more than welcomed. The provisions proposed in the draft law, aimed at simplifying the structure and governance procedure in the SBI, are also welcomed.

2. Respective authorities counter-point/argument

During a meeting of the Law Enforcement Committee, the SBI Director Roman Truba opposed the adoption of the amendment to the draft law, which provides for the early termination of powers of the SBI leadership. According to him, only high-ranking officials, including MPs, who are being investigated in criminal proceedings, have claims against the SBI.

3. CPLR assessment of the authorities counter-point

Dismissal of the SBI Director must be preceded by a proper analysis (evaluation) and conclusion that the SBI's performance is ineffective and that its Director is not properly performing his/her duties. Such analysis (evaluation) should be carried out by an independent permanent body or by a specially created independent commission, which does not include members or representatives of political bodies and civil servants.

4. Необхідні регуляції, які вимагають від органу діяти відповідним чином

Constitution of Ukraine, Law on the State Bureau of Investigation.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The Verkhovna Rada should return the draft law to the main Committee for revision, with the subsequent submission for a second reading.

 

Political Points for 4 – 11 November 2019

182 assignments from the President of Ukraine to the Government (Decree No. 837/2019)

1. CPLR expert opinion

On November 8, 2019, the President of Ukraine issued a Decree “On Urgent Measures for Reforming and Strengthening the State” No. 837/2019, pursuant to which the Head of State instructed the Cabinet of Ministers of Ukraine to take appropriate measures in various areas of public administration (182 orders in total), and gave one assignment to the Ministry of Foreign Affairs of Ukraine and one – to the Legal Reform Commission. The CPLR experts believe that such a Decree was issued in excess of the constitutional powers of the President, and therefore is unconstitutional.

2. Respective authorities counter-point/argument

The Decree was adopted to ensure further implementation of structural economic reforms, the introduction of additional mechanisms to accelerate the socio-economic development of Ukraine, to improve the well-being of the population, the harmonious development of regions, the continuation of the implementation of European standards of living, the strengthening of the state, on the basis of the results of the meeting held on November 4, 2019. The Presidential Decree makes no reference to the constitutional rules that enshrine such powers of the President.

3. CPLR assessment of the authorities counter-point

The Decree of the President of Ukraine does not provide constitutional grounds for adopting this document with reference to the relevant norms of the Constitution of Ukraine. According to Part 3 of Art. 106 of the Constitution of Ukraine, the President of Ukraine issues decrees and orders that are binding on the territory of Ukraine, solely on the basis of the Constitution and laws of Ukraine and with a view of their implementation. An exhaustive list of powers of the President of Ukraine is determined only by the Constitution of Ukraine (in particular, Article 106, Part 1). The Constitution of Ukraine does not envisage the powers of the President of Ukraine to give mandatory assignments to the Cabinet of Ministers of Ukraine or other executive bodies – this is the exclusive competence of the Prime Minister of Ukraine (paragraph 2 of Part 1 of Article 42 of the Law of Ukraine "On the Cabinet of Ministers of Ukraine"). As regards the Legal Reform Commission, the President of Ukraine has the right to instruct this body, since, in accordance with paragraph 28 of Part 1 of Article 106 of the Constitution of Ukraine, it was created as an advisory body under the President of Ukraine for exercising the powers of the Head of State.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On the Cabinet of Ministers of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine This is not for the first time when the President of Ukraine issues decrees that go beyond his constitutional powers. Each time, this leads to indistinct separation of state power in Ukraine, as well as undermining the constitutional order. We draw attention to the inadmissibility of unconstitutional actions of the higher authorities in the state with the rule of law. We recommend the President of Ukraine, as a guarantor of the observance of the Constitution of Ukraine, to act solely within the limits of his constitutional powers and to abandon the practice of issuing decrees in excess of powers. We recommend the opposition forces in the Parliament to raise the issue of the President's unconstitutional decrees before the Constitutional Court of Ukraine.

 

Political Points for 28 October – 4 November 2019

President appointed a new competition to select a member of the High Council of Justice

1. CPLR expert opinion

On June 10, the President issued a decree on the selection of candidates for the appointment as members of the High Council of Justice (HCJ).

Prior to issuing this decree, the President Zelensky legally cancelled the decrees of his predecessor on the appointment of two members of the HCJ and appointed a new competition, which was subject to analysis by the CPLR experts (political points of June 10-17).

In early September, the commission set up by the President recommended six candidates for appointment, of whom he had to nominate two. Among the recommended candidates, on September 30, the President appointed only O. Blazhivska as the HCJ member. For a long time, the results of the President's consideration of the other recommended candidates were not known, although most of them were worthy of holding office. Now the President has decided not to appoint anyone else and announced another competitive selection for one position, establishing a new competition committee.

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

The Law of Ukraine “On the High Council of Justice” stipulates that the President may appoint the members of the HCJ by his quota (2) only through the competition. At the same time, no obligations of the President to motivate his decision to reject the proposed candidates are specified, and there are no restrictions on the appointment of an unlimited number of competitions. That is, the President may set as many competitions as necessary to fill his HCJ quota.

However, such an interpretation of the law is contrary to its spirit. Establishment of a legislative requirement for the appointment of HCJ members on the basis of the competitive selection is intended to ensure the impartiality of the President in exercising his discretionary powers and to maximize the independence of the designated HCJ member from the subject of appointment. Instead, the situation in which the President ignores the decision of the competition commission he established and appoints a new competition is contrary to this legal preventive mechanism. In fact, under this approach, the President may nominate an unlimited number of competitive selections until there is a person he likes among the recommended candidates. In such circumstances, the essence of the competitive procedure is completely offset, and the appointment of a HCJ member  becomes a political procedure rather than a competitive one.

4. Related legislation/instructions which require the authorities act in a certain manner

Pursuant to Part 8 of Article 9 of the Law of Ukraine “On the High Council of Justice”, the announcement of an open competition is posted on the Official Website of the President for the President's appointment of a HCJ Member. Part 9 of the said Article stipulates that the Procedure for holding a competition shall be approved by the President.

Part 1 of Article 16 of this Law stipulates that the President issues a decree appointing members of the HCJ based on the results of the competitive selection.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

First of all, the President should cancel the newly initiated competition, as well as consider the other five candidates recommended by the selection committee and, if there are serious reservations, justify his refusal to appoint these persons as HCJ members. Only then can a new competition be held.

However, the current situation indicated the need to amend the Law on the High Council of Justice and to introduce restrictions on the President's discretionary powers, in particular because of the lack of mandatory motivation for the rejection of proposed candidates in the event that none of them were supported.

 

Investigation of the "Maidan cases" may be suspended

1. CPLR expert opinion

On October 21, 2019, the Department for Procedural Guidance in Criminal Prosecution of Crimes Committed in Connection with the Mass Protests in 2013-2014 was established in the Prosecutor General's Office. Later, the Prosecutor General appointed Victor Mysiaka the Head of this Department.

At the same time, an Advisory group of lawyers representing victims and relatives of people killed on the Maidan during the Revolution of Dignity strongly condemned the Prosecutor General's choice and accused Viktor Mysiaka of obstructing investigations of crimes against protesters in his previous position in a similar division.

In addition, according to the Director of the State Bureau of Investigation, the investigation of "Maidan cases" may be suspended, since former investigators of the Prosecutor General's Office cannot be automatically transferred to the SBI; the SBI’s investigators should study a large number of materials in the “Maidan cases” before proceeding with the investigation; the SBI lacks staff to effectively investigate these cases. In view of this, the Director of the SBI called on the Parliament to amend legislation that would abolish the maximum number of SBI employees and introduce a simplified competitive procedure (interview only) for investigators of the Prosecutor General's Office investigating "Maidan cases".

The legislative solution to the problems outlined by the Director of the SBI should have been approved by Parliament at least a year ago. After all, according to paragraph 9 of the Transitional Provisions of the Constitution of Ukraine, the prosecutor's office continues to perform the function of pre-trial investigation prior to the commencement of the bodies to which the respective functions will be delegated by law. These powers were transferred to the SBI on the basis of the CPC in 2012. However, since the Bureau began its work only on November 27, 2018, the said provisions of the Constitution became effective on that day.

At the same time, the Director of SBI does not substantiate the proposal to abolish the maximum number of SBI employees, and the use of “Maidan cases” in this aspect is an arbitrary argument.

2. Respective authorities counter-point/argument

The State Bureau of Investigation has released a statement of the Director that if the proposed amendments to the law are not approved, the investigation of "Maidan cases" will be suspended.

3. CPLR assessment of the authorities counter-point

The SBI's proposal to introduce a simplified procedure for the appointment of former Prosecutor General's Office investigators investigating "Maidan cases" to the SBI cannot be welcomed. However, the cancellation of the maximum number of SBI’s employees is unjustified.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, the Criminal Procedure Code, the Law of Ukraine “On the State Bureau of Investigation”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Parliament should introduce as soon as possible a simplified procedure for appointing former Prosecutor General's Investigators investigating "Maidan cases" to the SBI, and increase the maximum number of the SBI staff if the SBI leadership provides adequate justification.

 

Summary of the Conclusion on the draft Law of Ukraine «On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Ukraine on Administrative Procedure to improve the review of court decisions in appeal and cassation procedures» (No. 2314)

In general, the draft law contains positive novels.

It is necessary to support:

  • the intention to reduce the burden on the cassation instance;
  • the imposition of an obligation on the court of appeal or cassation to refer the case to a competent court of first instance, if the case is to be heard under other rules of justice;
  • establishing a rule to prevent abuse of the right of dismissal of a judge.

At the same time, we propose to finalize the draft law in the following areas:

  • the rules of admissibility of cassation complaints in different types of judicial proceedings should be simplified and unified (in the draft law these rules are formulated too confusingly and casuistically);
  • the practice of bringing judges of the courts of appeal to disciplinary responsibility as a ground for cassation appeal should be abandoned. It is advisable to determine the abuse of judges when deciding whether to rule on exceptional circumstances in the event of confirmation of such abuse not only by a court order but also by a decision of a disciplinary body;
  • instead of narrowing the possibilities of the courts to take action to enforce a lawsuit, the preference should be given to disciplinary and even criminal justice measures to combat abuse by judges;
  • in the case of competition between the rules of commercial litigation on exclusive jurisdiction in real estate disputes, the preference should be given to the rule of considering the case at the location of the real estate, and not of the defendant - the special subject.

Provisions of the draft will only apply to new cassation appeals filed after this law enters into force. This is a correct way, as the law should not be given a retroactive effect. However, the draft law will not allow in the near future to address the problem of overloading of the Supreme Court as a cassation instance (due to the large number of remaining cases), and therefore does not give an opportunity to substantiate the need for a significant reduction of its composition now.

Moreover, the draft law would exacerbate this problem. The following figures can illustrate the large scale of remaining cases: if the Supreme Court had stopped accepting new cassation appeals, the current Grand Chamber would need approximately two to three months to review the remainder of the cases, the Administrative Court of Cassation -  nine months, the Economic Court of Cassation - two months, the Criminal Court of Cassation - seven months, the Civil Court of Cassation - ten months.

A detailed analysis of the provisions of the draft law is here.