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NEWSLETTER № 13/2018(November)
The monthly information bulletin of the Centre of Policy and Legal Reform (CPLR) is dedicated to the analysis of state reforms,
in particular in the areas of parliamentarianism and elections, constitutional and judicial reforms, civil service, anticorruption,
etc. The goal of the publication is to increase the level of expert awareness among the citizens and to strengthen their
capacity to influence the government authorities in order to expedite democratic reforms and to establish good governance
in Ukraine.
The newsletter was created with the support of the European Union.
The content of the publication is not a reflection of the official position of the European Union.
22 YEARS OF THE CENTRE
OF POLICY AND LEGAL REFORM
CONSTITUTiON	
EFFECTIVE GOVERNMENT
FRIENDLY 	
ADMINISTRATION
OUR ACHIEVEMENTS 	
FOR 22 YEARS
FAIR TRIAL
HONEST LAW ENFORCEMENT	
AUTHORITIES
ANTIcorruption
ANNOUNCEMENTS
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
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CONSTITUTiON
Imposing of martial law
Ukraine has introduced a legal regime of martial law in
10 oblasts for 28 days, starting from November 28. At night,
November 26, the NSDC of Ukraine approved a decision to
propose to the President of Ukraine introducing a martial
law regime for 60 days throughout Ukraine. However, by
the new Decree No. 393, the President proposed to reduce
this period to 30 days. The Verkhovna Rada of Ukraine
adopted the decree with a reservation on its introduction
on the territory of the following oblasts: Vinnytsia,
Lugansk, Mykolayiv, Odesa, Sumy, Kharkiv, Chernihiv, as
well as Donetsk, Zaporizhzhya, Kherson and inland waters
of Azov-Kerch water area.
President and the Verkhovna Rada of Ukraine did not
specify in the Decree and in the Law accordingly the list
of constitutional rights that are limited during the martial
law, and the scope of their limitation, which may give rise
to unjustified violations of constitutional rights of citizens
by state bodies.
Changes to the Constitution
regarding the Euro-Atlantic course
of Ukraine
On November 22, the Verkhovna Rada of Ukraine by
the votes of 311 people’s deputies preliminary supported
the draft law No. 9037 on the Euro-Atlantic course. A few
hours before this vote, the Constitutional Court of Ukraine
adopted a positive Opinion on the compliance of the draft
law No. 9037 with Articles 157, 158 of the Constitution,
which gave “green light” for its consideration by the
Parliament.
Unfortunately, the Constitutional Court of Ukraine
limited itself to a formal statement of the compliance of
the presidential draft law with the provisions of Art. 157,
158 of the Constitution and did not indicate its significant
shortcomings and possible risks of the implementation of
presumably new constitutional provisions. Therefore, we
are forced to publicly warn the Parliament against further
adoption of the draft law in the current version without
further elaboration and to pay attention to the following
drawbacks and threats to the draft law:
1.	 Text of the draft law uses the term “full membership”
three times. Statutory documents of the EU and NATO do
not contain the concept of “full membership”, which raises
doubts about such a wording.
2.	Draft law proposes a new wording of paragraph 5 of
part one of Article 85 of the Constitution, which raises the
problem of ambiguous interpretation of these powers of
the Parliament, and therefore does not correspond to the
principle of legal certainty. The question arises whether the
Parliament should adopt a separate law on the principles
of implementing the strategic course of the state towards
full membership of Ukraine in the European Union and in
the North Atlantic Treaty Organization, or should every
law take into account the need to implement the strategic
course of the state.
3.	Draft law proposes to supplement Article 102 with a
new part that can create conflicts between the Parliament
and the President, the President and the Government and
even lead to constitutional crises. It should be reminded
that the draft law proposes to supplement the powers
of the Parliament with definition of the principles of the
implementation of the Euro-Atlantic course, and powers
of the Government with ensuring implementation of the
policy.
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
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Yulia Kirichenko: “Under conditions of weak
judicial power, tendencies of the power
authorities in general to use of the Consti­
tutional Court to serve their own interests,
can an “individual opinion” of a judge save
the situation. However, where is the red line
for “individual opinion” and can it give raise
liability?“
In our opinion, we can restrict ourselves to declaring
a Euro-Atlantic course in the Preamble to the Constitution
and eliminating the provision on the use of existing military
bases on the territory of Ukraine for the temporary stay of
foreign military formations.
Consequently, we urge the Parliament to refrain from
final adoption of the presidential draft law in the proposed
wording without taking into account the comments made.
We propose to amend the draft law, re-submit it to the
Constitutional Court of Ukraine, and then finally adopt it.
Constitutional Court will consider
the issues of its independence
On November 29, 47 people’s deputies submitted
a constitutional petition to the Constitutional Court
of Ukraine on the verification of compliance with the
Constitution of Ukraine of Article 208-4 of the Rules of
Procedure of the Verkhovna Rada of Ukraine (regarding
the submission of a proposal for a candidate for the
position of a judge of the Constitutional Court of Ukraine
by a deputy faction (deputy group). The specified norm
is questionable in terms of constitutionality, in particular,
compliance with Article 148 of the Constitution of Ukraine,
which does not establish requirements for the CCU
judges to be supported by parliamentary factions and
groups. In fact, it sets the principle of the formation of the
Constitutional Court in the Parliament based on political
support. Instead, the constitutional changes of 2016 in
response to the challenge of the political dependence
of the Constitutional Court of Ukraine introduced such
new requirements for the CCU judge as high moral
standards and a recognized degree of lawyer, as well as
a competitive selection of candidates for the positions of
the CCU judges.
At present, the Constitutional Court of Ukraine is
expected to open constitutional proceedings.
Individual opinion:
controversial issues
On Novemver 23, the Centre of Policy and Legal
Reform held an expert discussion “Individual Opinion:
Controversial Issues” involving the judges of the Consti­
tutional Court of Ukraine, the Supreme Court, members
of the High Council of Justice, the High Qualifications
Commission of Judges, scientists and experts. Participants
of the event discussed the nature of the institute of
individual opinion and the controversial issues that arose
in the context of the implementation of the rule of law
principle and the risks of undermining the authority of a
collegiate state body.
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
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EFFECTIVE GOVERNMENT
New ministry is being created
in Ukraine
Ministry of Veterans Affairs is being set up In Ukraine.
In November, Iryna Frisz was appointed head of the
agency. The staff structure of the Ministry has not yet
been established and approved. According to I. Frisz, the
Ministry will be able to start working in June next year.
There were many discussions around the issue of
the establishment of the Ministry. Back in February, the
Verkhovna Rada adopted a Resolution, in which the
Parliament requests the Government to create on the basis
of the State Service of War Veterans and Participants of
the Antiterrorist Operation the Ministry of Veterans Affairs,
a central executive authority responsible for the formation
and implementation of state policy in the area of social
protection of war veterans.
Some people support the decision on the creation of
this ministry while others do not. The CPLR experts share
the opinion of those specialists who consider the creation
of the ministry to be an unjustified step.
In no way we question the importance and necessity
of the “establishment of a clear state strategy to overcome
short-term and long-term consequences of military
aggression against Ukraine, including an effective social
protection system of war veterans” mentioned in the
Resolution. Also, the fact that “complex system of state
authorities dealing with these issues (more than 20
ministries, departments, as well as local self-government
bodies and local executive bodies), leads to bureaucratic
chaos and prevents timely and complete resolution
of important social issues for anti-terrorist operations
participants”.
However, according to the CPLR experts, these
obviously important tasks for the state can be resolved
without the creation of an additional ministry and,
accordingly, the expansion of the bureaucratic apparatus
and spending budget funds on it. These tasks could
be fulfilled either by the Ministry of Social Policy or
the Ministry of Defense. After all, the competence of
the Ministry of Veterans Affairs is too narrow for the
ministry. Moreover, its intended functions are more likely
the functions for the implementation of state policy,
while the ministry should be focused on its formation.
Therefore, activities of the new ministry will in the best
case correspond to the ministry’s status only by half.
Interference of the Verkhovna Rada with the issue of the
creation of the ministry is controversial as it is the exclusive
competence of the Government.
In November, there were other changes in the
composition of the Government. Parliament has resigned
Taras Kutovyi, Minister of Agricultural Policy and Food, and
appointed Oksana Markarova, Minister of Finance, who
was acting in this capacity.
Acting Minister status raises many legal issues,
primarily due to the fact that the Law “On the Cabinet
of Ministers of Ukraine” stipulates that the Government
consists of ministers and not acting ministers. Despite
this, Ukraine has no Minister of Health for 2.5 years, and
the Prime Minister does not submit an application for
appointment to this post.
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
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FRIENDLY 	
ADMINISTRATION
Issuing a driver’s license and
registration of a car:
new rules – old problems
On November 1, the Verkhovna Rada of Ukraine regis­
tered a draft Law No. 9251, which provides for changes
in the provision of administrative services for issuing a
driver’s license and registration of vehicles.
Positive innovations of the draft law include, first of
all, the definition of the lists of documents required for
each of the administrative services, as well as the exact
amount of payment for their provision. Currently these
issues are regulated at the level of by-laws, which in
practice leads to non-transparent payments for services,
as well as unjustified requirements to citizens to submit
additional documents (as evidenced by the area of
passport services). Finally, these issues are proposed to
be settled in the law.
However, the draft law also contains shortcomings.
Firstly, the draft law does not contain provisions on
the delegation of authority to issue/exchange a driver’s
license and the registration/re-registration of vehicles from
the Ministry of Internal Affairs to local self-government
bodies although this was envisaged by the Action Plan for
implementing Public Administration Reform Strategy for
2016-2020 for the second quarter of 2018. Decentralization
of these services should bring them closer to consumers,
as well as promote their integration into the centers of the
provision of administrative services (CPASs).
Secondly, the mechanism of dual exams (first in the
driving schools, and then in the territorial bodies of the
Ministry of Internal Affairs) remains. Since the draft law
provides for a mechanism of control by the Ministry of
Internal Affairs of the driver training centers (accreditation,
certification of their specialists, etc.), only these centers
must take examinations. If such institutions provide poor-
quality training for drivers, the Ministry of Internal Affairs
is authorized to apply sanctions against them.
Thirdly, the draft law provides for the issuance of a
driver’s license only with a contactless electronic carrier
(CEC). This, in turn, will lead to increasing its price and the
need for expensive infrastructure to issue such documents
and work with them. At the same time, owners of the CEC
driver’s license receive no benefits. This is also not part of
Ukraine’s commitment to the EU.
Fourthly, the draft law provides for reconciliation,
inspection, study of the vehicle number and identification
numbers of the carbody, frame (chassis) during
its registration. Such procedures are completely
inappropriate during these registration actions. They
cause extra bureaucratic obstacles. In particular, they
complicate the process of integrating these services
into the CPASs, as they require obligatory equipment of
observation platforms. It is expedient to carry out the said
reconciliation and inspection only during the technical
inspection of vehicles, which must be made mandatory for
all drivers without exception.
“Great breakthrough is that finally the
list of documents and the fees for the
administrative services of the Ministry of
Internal Affairs is proposed to be fixed at the
level of the law. However, other outstanding
issues remain. These are “double” exams,
unwillingness to decentralize these services,
unnecessary overview of car components
during its registration. The draft law should
solve these problems as well. In this case it
can be called a progressive act”, – noted
the CPLR expert Viktor Tymoshchuk.
In November, the Centre of Policy and Legal Reform celebrated 22-nd annivesary. On this
occasion we review the results and share the achievements of our organization during this time.
Constitution and parliamentarism
•	 Lobbying (in 1998-2002) of the transparency of the activities of the Verkhovna Rada of Ukraine, in particular
publication of the website www.zakon.gov.ua of the draft laws submitted to the Parliament even before they
were available on the Parliament’s website.
•	 Preparation of Green and White Books on Constitutional Reform, which contain respectively the list of
problems of the Constitution of Ukraine and suggestions on their solution.
•	 Active participation in improving the legislation and practice related to the freedom of peaceful assembly
and the freedom of associations, including participation in the development of the draft Law “On Public
Associations” adopted in 2012.
•	 Fighting against unconstitutional powers of parliamentary political parties to exclude candidates to people’s
deputies of Ukraine from the election list of a political party after the publication of the results of voting, which
were canceled by the Constitutional Court of Ukraine in 2017.
•	 Fighting against unconstitutional Law “On All-Ukrainian Referendum”, adopted in 2012. It was canceled by
the Constitutional Court of Ukraine in 2018. Development of a new draft Law “On All-Ukrainian Referendum”,
which is under consideration in the Verkhovna Rada of Ukraine.
•	 Strengthening the independence of constitutional justice through monitoring of contests for the positions of
judges of the CCU, the activities of the CCU, information and education activities.
22 YEARS OF THE CENTRE 	
OF POLICY AND LEGAL REFORM
Executive power
•	 Participation in the development of the Concept of Administrative Reform in Ukraine, approved by the
President of Ukraine in 1998.
•	 Development of the Law “On Local State Administrations”, adopted in 1999.
•	 Development of the Law “On the Cabinet of Ministers of Ukraine”. The CPLR experts struggled for its adoption
since 1996. Eight times it was passed by the Verkhovna Rada of Ukraine and subsequently vetoed by the
President of Ukraine. As a result, the law was adopted in 2008 (in 2010-2011, it was substantially damaged
by Yanukovych’s regime, but in 2014 the law mostly returned to the previous version).
•	 Development in 2002 and advocacy of the draft law “On Central Executive Authorities”. The law was adopted
in 2011 with amendments that generally worsened its quality.
•	 Development in 2008 of the Law “On Access to Public Information”, which was adopted in 2011 after a broad
mass media and public organizations campaign.
•	 Participation in the development of concepts and a package of draft laws on administrative and territorial
reform and decentralization (2008-2009, 2014).
•	 Participation in the development and long-term (2005-2015) advocacy of the new Law “On Civil Service”
(2015), which came into force on May 1, 2016. Preparation of scientific and practical commentary to it and
rendering assistance in its implementation.
•	 In 2016, the government launched a ministerial reform aimed at introducing effective policy analysis and
strategic planning practice in the ministries. The CPLR has advocated this reform since 2005, and now the
Centre is actively working on its further implementation.
•	 Participation in the development of the draft law “On Public Consultations” (introduced by the Government
for consideration to the Parliament in 2018).
Judiciary
•	 Preparation of the Draft Law “On Access to Court Decisions”, adopted in 2005. On its basis, the Unified State
Register of Court Decisions is currently operating.
•	 Development of the concept for the creation of administrative courts in Ukraine and the Code of Administrative
Justice, adopted in 2005. A scientific and practical commentary was also prepared for it.
•	 Participation in the development and advocacy of the draft Law “On the Prosecutor’s Office”, adopted in 2014.
•	 Participation in the development of amendments to the Constitution of Ukraine on Justice (2016), the provisions
of the Laws “On the Judicial System and Status of Judges” (2014, 2015, 2016), “On the High Council of Justice”
(2016). Thanks to the CPLR experts, the mechanisms for cleaning and upgrading of the judicial system were
foreseen, including creation of the Public Council for Integrity and measures to protect the independence of
judges.
•	 Advocacy of the creation of the Supreme Anticorruption Court, participation in the preparation of normative
and legal support for its activities.
Criminal Justice
•	 Preparation and substantiation of the reform of the administrative liability institute and the draft Code of
Administrative Offenses.
•	 Active participation in the elaboration of the Criminal Procedure Code of Ukraine, the Law “On Free Legal
Aid”. Preparation of a scientific and practical commentary to the Criminal Procedure Code of Ukraine.
•	 Assistance in the formation of the National Police: participation in the preparation of the Law “On the
National Police” (2015), the Disciplinary Statute of the National Police (2018), the selection of patrol police
officers.
•	 Development and advocacy of the adoption of the Law “On the State Bureau of Investigations” (2015).
Fighting corruption
•	 Participation in the preparation of the Law “On the National Anti-Corruption Bureau of Ukraine” (2014),
strengthening the institutional capacity of the NABU and the SAP through the provision of scientific
and methodological recommendations, consultations to detectives and prosecutors, preparation of
expert opinions, etc. Preparation of scientific and practical comments to the Laws “On the Principles of
Prevention and Counteraction of Corruption”, “On the Corruption Prevention”.
•	 Participation in the development and advocacy of the draft laws that enhance the effectiveness of anti­
corruption policy and made part of the Action Plan on Visa Liberalization between Ukraine and the EU.
•	 Development of a methodology and further anti-corruption expertise of several hundred of draft laws,
which allowed to block the adoption of many draft laws that contain corruption-related factors and/or
aim to impede the anti-corruption reform.
•	 Preparation of alternative reports on the assessment of the effectiveness of the state anti-corruption
policy implementation for the period from 2013 to 2018.
•	 Providing expert support to the NACP, the CEC, the courts and other state institutions on the prevention
and counteraction of “political corruption” (participation in the development/improvement of NACP acts
in this area, preparation of expert opinions, scientific and methodological recommendations, monitoring
reports, etc.). Preparation of the draft law “On Improving the System of Prevention and Fighting Political
Corruption”.
Administrative services and administrative procedure
•	 Development of the theory of administrative services and preparation of the draft Concept for reforming
the system of administrative services (approved by the Government in 2006).
•	 Active participation in the preparation of the draft Law “On Administrative Services”, adopted in 2012.
•	 Contributing to the establishment of pilot Centers for Provision of Administrative Services (CPASs). About
100 trainings and other events for representatives of local self-government bodies on the organization of
the work of the CPASs were organized. Ensuring public monitoring of the quality of administrative services.
•	 Since 1999, the Centre participated in the preparation and advocacy of the draft law on the general
administrative procedure. It has already been submitted to the Verkhovna Rada of Ukraine for three
times by the decision of the Cabinet of Ministers of Ukraine, but not yet approved. In 2018, more than
25 meetings of the working group under the Ministry of Justice with the active participation of the CPLR
experts were held.
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
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FAIR TRIAL
Report on the procedures
of selection and evaluation
of judges in Ukraine has been
published
In November, a team of experts from the EU-funded
Pravo-Justice project (G. Stava, W. Van Bentham,
R. Moliène) published a report on the procedures of
selection and evaluation of judges in Ukraine. Experts
provided a lot of valuable advice on the procedures for
qualification assessment of judges and competitions
for the judges positions in Ukraine. In particular, they
drew attention to the fact that the High Qualifications
Commission of Judges (hereinafter – the HQCJ) “should
always make motivated decisions, especially when
appointing a candidate who received the negative opinion
of the Public Council of Integrity.”
According to experts, the burden of proof should be
put on candidates “to require them to provide explanations
in the event of any accusation from the Public Council of
Integrity or other evidence available to the Commission.”
Experts also suggest in the long term that the
legislation should be amended to include more public
representatives of the HQCJ. This will not only facilitate the
organization of work, but will also contribute to a variety
of professional experiences that may be useful in selecting
and evaluating judges, and will lead to a more pluralistic
view on those who are the most adequate candidates for
a judicial position.
Selection of judges to the
High Anti-Corruption Court
and the Supreme Court is ongoing
On November 6, on the basis of the submission of
international organizations, the HQCJ established the
Public Council of International Experts, a body designed
to assist the Commission in the selection of judges to the
High Anticorruption Court. The Council includes specialists
in the field of anti-corruption law: Aurelius Gutauskas,
Fleming Christian Denker, Ted Zazechny, Miryan Lazarova
Traikovskaya, Lorna Harris, Sir Anthony Hooper.
On November 12, an examination was conducted for
836 candidates for the Supreme and High Anti-Corruption
Courts. As a result of anonymous written testing, 473
per­sons were admitted to the next stage – practical
assignment. In particular:
•	 to the High Anti-corruption Court – 108 persons;
•	 to the Appeal Chamber of the High Anticorruption
Court – 48 persons;
•	 to the Cassation Administrative Court of the Su-
preme Court – 104 persons;
•	 to the Cassation Civil Court of the Supreme Court –
95 persons;
•	 to the Cassation Criminal Court of the Supreme
Court – 54 persons;
•	 to the Cassation Economic Court of the Supreme
Court – 64 persons.
On November 14, candidates for the High Anti­
corruption and Supreme Courts completed their practical
assignment. Its results and the overall result of the exam
will become known after the completion of the review of
works by the members of the HQCJ.
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
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High Qualification Commission
of Judges creates artificial
obstacles to the formation
of the Public Council of Integrity
On November 21, the HQCJ recognized two organi­
zations as meeting the requirements for attending
the meeting dedicated to the establishment of the
Public Council for Integrity. In relation to 12 other non-
governmental organizations that took part in the
selection, the Commission has requested to correct
the shortcomings. In response to this decision, public
organizations have prepared a statement saying that
“among these shortcomings there are many that are not
based on the requirements of the law, do not pursue
a legitimate purpose and can testify to the creation
of artificial obstacles for the NGO to participate in the
formation of PCI”.
In particular:
•	 in some cases, the HQCJ did not accept the results
of a financial audit conducted later than in the last two
years, whereas the law only requires the availability of an
audit report and does not set any time intervals for its con-
duct;
•	 In other cases, the HQCJ unreasonably believed
that only the leadership of international organizations in
Ukraine (OSCE Coordinator in Ukraine, UNDP, etc.) could
make recommendations to public organizations, while the
law does not contain such a requirement, and the signa-
tures of officials of international organizations were made
within their authority;
•	 Commission’s position regarding the recognition of
financial audit reports or audit findings as non-compliant
is groundless only because they are prepared for confiden-
tial use and submission to the grantors, since the law does
not set any requirements for the recipients of the reports
and the purpose of their preparation, etc.
In a statement, NGOs have urged the HQCJ to carefully
review all document packages, including those provided
additionally; evaluate them impartially and exclusively on
the basis of the requirements of the law; allow participation
in the meeting of all public organizations, the experience
and eligibility of which are confirmed by documents;
review decisions on a number of NGOs regarding the
recognition of documents as submitted without complying
with the requirements of the law, especially where the law
does not establish the relevant requirements.
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
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HONEST LAW ENFORCEMENT	
AUTHORITIES
Law on criminal offenses
has been adopted in general
On November 22, the Verkhovna Rada of Ukraine
adopted in general the Law on the Simplification of
Pre-trial Investigation of Certain Categories of Criminal
Violations (on criminal offences) (Reg. No.7279-d). It
provides for the delineation of violations depending on the
severity of the crime, limitation of the scope of the use of
punishment related to imprisonment, etc.
However, amendments to the CPC provided for by
the Law contain serious restrictions on human rights and
freedoms, namely:
•	 right to personal freedom – as a result of the intro-
duction of new conditions for the detention of individuals,
which directly contradict the Constitution of Ukraine;
•	 principle of legal certainty – due to the possibility
of interviewing individuals and the withdrawal of tools and
means before the start of a formal investigation;
•	 right to protection in a simplified proceeding, where
the participation of an accused person or his/her attorney
is no longer required.
Parliament passed the Law, despite the call of the
public to refrain from such a step and the position of
the Council of Europe, which gave a negative opinion in
relation to this document. In particular, European experts
noted: “The need for effective response to mass crime
for minor offenses should not lead to neglecting basic
procedural guarantees. Unfortunately, such neglect will
be the result of the proposed procedure (by the draft
law – author’s note), which will allow for the application
of procedural actions before any information is submitted
to the Unified Register both in circumstances that have
led to past abuses and in other cases in respect of which
no provision has been made for the use of appropriate
safeguards against such abuse; in addition, it will leave
unclear restrictions on the length of the investigation and
will create the possibility of putting pressure on suspects
to forcibly convict themselves and deprive the party of the
protection of fundamental rights” (paragraphs 193, 194 of
the Opinion).
In the view of the above, representatives of the public
are determined to demand that the President of Ukraine
applies the veto right to this Law.
State Bureau of Investigation
began its work
On November 27, investigators of the State Bureau of
Investigations initiated the first criminal proceedings.
Thus, three years have passed since the Parliament
adopted the Law “On the State Bureau of Investigation”,
co-authored by experts of the Centre of Policy and Legal
Reform, a competition was held for the positions of
managers, investigators and civil servants and the work
actually began.
Beginning of the SBI work on the investigation
of official crimes means the final deprivation of the
prosecutor’s office of functions of pre-trial investigation
and bringing its functions in line with the Constitution.
The SBI immediately began functioning in the format
of the headquarters and seven territorial departments in
Kyiv, Lviv, Khmelnytsky, Poltava, Kramatorsk, Mykolayiv
and Melitopol, which evenly cover the whole territory of
the state.
www.pravo.org.ua
NEWSLETTER No 13/2018(November, 2018)
ä ð å
ANTIcorruption
International Monetary Fund
and the World Bank point out that
the effectiveness of the fight against
corruption in Ukraine is very low
On November 15, 2018, at the Annual Fitch Ratings
Conference in Kyiv, Gosta Ljungman, the IMF Resident
Representative in Ukraine, and Satu Kahkonen, the World
Bank Country Director of for Ukraine, Belarus and Moldova
noted the low effectiveness of the Ukrainian authorities
in combating corruption. By saying this, Satu Kahkonen
emphasized that the high level of corruption in Ukraine
and prevailing of personal decisions over the rule of law
is what constrains investors. “We communicate a lot with
different investors, we see that there are opportunities for
investment in Ukraine, but at the same time we notice the
investors’ concerns about these issues,” she said.
Such statements by representatives of the IMF and
the WB are not just indications that these international
institutions are aware of the real situation with corruption
in Ukraine, but that the further prospects for providing
Ukraine with financial assistance depend to a large extent
on the effective activity of the Ukrainian authorities in
the fight against corruption, and that without significant
progress in solving this problem, Ukraine should not
expect foreign investment, rapid economic development,
improvement of living standards, etc. The very fact of the
IMF and the WB announcement that the anticorruption
policy in Ukraine is ineffective will for a long time be
a “black spot” on the reputation of Ukraine leading
to significant worsening of the general image of the
investment climate in Ukraine and negative effect on
the prospects of Ukraine’s cooperation with foreign and
international partners.
For this very reason Ukrainian authorities urgently
need to move from imitation to a real fight against
corruption. This process should begin with the
development of a nationwide concept of prevention and
combating corruption, based on the results of recent
corruption studies in Ukraine and in the world, taking
into account international and foreign experience in
counteracting this phenomenon. Based on this concept,
a high-quality Anticorruption Strategy (for 2019-2021)
should be developed and approved with subsequent
adoption of the National Program for its implementation.
In the future, every effort should be made to ensure that
the anti-corruption measures are implemented in a timely
and effective manner, the objectives are fulfilled, and the
goals achieved.
Dmytro Kalmykov, the CPLR expert, stressed:
“For almost a year in Ukraine there is no basic
strategic document in the field of prevention
and counteraction corruption – the Anti-
Corruption Strategy. This led to unbalanced
and inefficient activities of anti-corruption
bodies (some institutions are in a state of
permanent “conflict”), while other state
bodies and local self-governments carry
out those anti-corruption measures that
are intuitively considered expedient, or do
nothing at all. Under such circumstances, one
cannot hope for any progress in the area of
prevention and counteraction of corruption”.
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e-mail:	centre@pravo.org.ua
phone:	 +38 044 278 03 17
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December 4 – briefing in the Parliament
“How to return to Ukrainians the Right
to a Referendum” (Kyiv)
December 13 – Brain-ring
“Elections and Democracy” (Kyiv)
December 17 – training
“Constitutional complaint” (Zaporizhzhya)
December 17 – Seminar-training
“Public monitoring of court cases on high-level
corruption” (Kyiv)
December 17-18 – training “Integration of new
services to the centers for the provision of
administrative services: challenges and ways of
overcoming” (Odessa)
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Newsletter #13 (November)

  • 1. ä ð å www.pravo.org.ua www.pravo.org.ua NEWSLETTER № 13/2018(November) The monthly information bulletin of the Centre of Policy and Legal Reform (CPLR) is dedicated to the analysis of state reforms, in particular in the areas of parliamentarianism and elections, constitutional and judicial reforms, civil service, anticorruption, etc. The goal of the publication is to increase the level of expert awareness among the citizens and to strengthen their capacity to influence the government authorities in order to expedite democratic reforms and to establish good governance in Ukraine. The newsletter was created with the support of the European Union. The content of the publication is not a reflection of the official position of the European Union. 22 YEARS OF THE CENTRE OF POLICY AND LEGAL REFORM CONSTITUTiON EFFECTIVE GOVERNMENT FRIENDLY ADMINISTRATION OUR ACHIEVEMENTS FOR 22 YEARS FAIR TRIAL HONEST LAW ENFORCEMENT AUTHORITIES ANTIcorruption ANNOUNCEMENTS
  • 2. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å CONSTITUTiON Imposing of martial law Ukraine has introduced a legal regime of martial law in 10 oblasts for 28 days, starting from November 28. At night, November 26, the NSDC of Ukraine approved a decision to propose to the President of Ukraine introducing a martial law regime for 60 days throughout Ukraine. However, by the new Decree No. 393, the President proposed to reduce this period to 30 days. The Verkhovna Rada of Ukraine adopted the decree with a reservation on its introduction on the territory of the following oblasts: Vinnytsia, Lugansk, Mykolayiv, Odesa, Sumy, Kharkiv, Chernihiv, as well as Donetsk, Zaporizhzhya, Kherson and inland waters of Azov-Kerch water area. President and the Verkhovna Rada of Ukraine did not specify in the Decree and in the Law accordingly the list of constitutional rights that are limited during the martial law, and the scope of their limitation, which may give rise to unjustified violations of constitutional rights of citizens by state bodies. Changes to the Constitution regarding the Euro-Atlantic course of Ukraine On November 22, the Verkhovna Rada of Ukraine by the votes of 311 people’s deputies preliminary supported the draft law No. 9037 on the Euro-Atlantic course. A few hours before this vote, the Constitutional Court of Ukraine adopted a positive Opinion on the compliance of the draft law No. 9037 with Articles 157, 158 of the Constitution, which gave “green light” for its consideration by the Parliament. Unfortunately, the Constitutional Court of Ukraine limited itself to a formal statement of the compliance of the presidential draft law with the provisions of Art. 157, 158 of the Constitution and did not indicate its significant shortcomings and possible risks of the implementation of presumably new constitutional provisions. Therefore, we are forced to publicly warn the Parliament against further adoption of the draft law in the current version without further elaboration and to pay attention to the following drawbacks and threats to the draft law: 1. Text of the draft law uses the term “full membership” three times. Statutory documents of the EU and NATO do not contain the concept of “full membership”, which raises doubts about such a wording. 2. Draft law proposes a new wording of paragraph 5 of part one of Article 85 of the Constitution, which raises the problem of ambiguous interpretation of these powers of the Parliament, and therefore does not correspond to the principle of legal certainty. The question arises whether the Parliament should adopt a separate law on the principles of implementing the strategic course of the state towards full membership of Ukraine in the European Union and in the North Atlantic Treaty Organization, or should every law take into account the need to implement the strategic course of the state. 3. Draft law proposes to supplement Article 102 with a new part that can create conflicts between the Parliament and the President, the President and the Government and even lead to constitutional crises. It should be reminded that the draft law proposes to supplement the powers of the Parliament with definition of the principles of the implementation of the Euro-Atlantic course, and powers of the Government with ensuring implementation of the policy.
  • 3. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å Yulia Kirichenko: “Under conditions of weak judicial power, tendencies of the power authorities in general to use of the Consti­ tutional Court to serve their own interests, can an “individual opinion” of a judge save the situation. However, where is the red line for “individual opinion” and can it give raise liability?“ In our opinion, we can restrict ourselves to declaring a Euro-Atlantic course in the Preamble to the Constitution and eliminating the provision on the use of existing military bases on the territory of Ukraine for the temporary stay of foreign military formations. Consequently, we urge the Parliament to refrain from final adoption of the presidential draft law in the proposed wording without taking into account the comments made. We propose to amend the draft law, re-submit it to the Constitutional Court of Ukraine, and then finally adopt it. Constitutional Court will consider the issues of its independence On November 29, 47 people’s deputies submitted a constitutional petition to the Constitutional Court of Ukraine on the verification of compliance with the Constitution of Ukraine of Article 208-4 of the Rules of Procedure of the Verkhovna Rada of Ukraine (regarding the submission of a proposal for a candidate for the position of a judge of the Constitutional Court of Ukraine by a deputy faction (deputy group). The specified norm is questionable in terms of constitutionality, in particular, compliance with Article 148 of the Constitution of Ukraine, which does not establish requirements for the CCU judges to be supported by parliamentary factions and groups. In fact, it sets the principle of the formation of the Constitutional Court in the Parliament based on political support. Instead, the constitutional changes of 2016 in response to the challenge of the political dependence of the Constitutional Court of Ukraine introduced such new requirements for the CCU judge as high moral standards and a recognized degree of lawyer, as well as a competitive selection of candidates for the positions of the CCU judges. At present, the Constitutional Court of Ukraine is expected to open constitutional proceedings. Individual opinion: controversial issues On Novemver 23, the Centre of Policy and Legal Reform held an expert discussion “Individual Opinion: Controversial Issues” involving the judges of the Consti­ tutional Court of Ukraine, the Supreme Court, members of the High Council of Justice, the High Qualifications Commission of Judges, scientists and experts. Participants of the event discussed the nature of the institute of individual opinion and the controversial issues that arose in the context of the implementation of the rule of law principle and the risks of undermining the authority of a collegiate state body.
  • 4. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å EFFECTIVE GOVERNMENT New ministry is being created in Ukraine Ministry of Veterans Affairs is being set up In Ukraine. In November, Iryna Frisz was appointed head of the agency. The staff structure of the Ministry has not yet been established and approved. According to I. Frisz, the Ministry will be able to start working in June next year. There were many discussions around the issue of the establishment of the Ministry. Back in February, the Verkhovna Rada adopted a Resolution, in which the Parliament requests the Government to create on the basis of the State Service of War Veterans and Participants of the Antiterrorist Operation the Ministry of Veterans Affairs, a central executive authority responsible for the formation and implementation of state policy in the area of social protection of war veterans. Some people support the decision on the creation of this ministry while others do not. The CPLR experts share the opinion of those specialists who consider the creation of the ministry to be an unjustified step. In no way we question the importance and necessity of the “establishment of a clear state strategy to overcome short-term and long-term consequences of military aggression against Ukraine, including an effective social protection system of war veterans” mentioned in the Resolution. Also, the fact that “complex system of state authorities dealing with these issues (more than 20 ministries, departments, as well as local self-government bodies and local executive bodies), leads to bureaucratic chaos and prevents timely and complete resolution of important social issues for anti-terrorist operations participants”. However, according to the CPLR experts, these obviously important tasks for the state can be resolved without the creation of an additional ministry and, accordingly, the expansion of the bureaucratic apparatus and spending budget funds on it. These tasks could be fulfilled either by the Ministry of Social Policy or the Ministry of Defense. After all, the competence of the Ministry of Veterans Affairs is too narrow for the ministry. Moreover, its intended functions are more likely the functions for the implementation of state policy, while the ministry should be focused on its formation. Therefore, activities of the new ministry will in the best case correspond to the ministry’s status only by half. Interference of the Verkhovna Rada with the issue of the creation of the ministry is controversial as it is the exclusive competence of the Government. In November, there were other changes in the composition of the Government. Parliament has resigned Taras Kutovyi, Minister of Agricultural Policy and Food, and appointed Oksana Markarova, Minister of Finance, who was acting in this capacity. Acting Minister status raises many legal issues, primarily due to the fact that the Law “On the Cabinet of Ministers of Ukraine” stipulates that the Government consists of ministers and not acting ministers. Despite this, Ukraine has no Minister of Health for 2.5 years, and the Prime Minister does not submit an application for appointment to this post.
  • 5. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å FRIENDLY ADMINISTRATION Issuing a driver’s license and registration of a car: new rules – old problems On November 1, the Verkhovna Rada of Ukraine regis­ tered a draft Law No. 9251, which provides for changes in the provision of administrative services for issuing a driver’s license and registration of vehicles. Positive innovations of the draft law include, first of all, the definition of the lists of documents required for each of the administrative services, as well as the exact amount of payment for their provision. Currently these issues are regulated at the level of by-laws, which in practice leads to non-transparent payments for services, as well as unjustified requirements to citizens to submit additional documents (as evidenced by the area of passport services). Finally, these issues are proposed to be settled in the law. However, the draft law also contains shortcomings. Firstly, the draft law does not contain provisions on the delegation of authority to issue/exchange a driver’s license and the registration/re-registration of vehicles from the Ministry of Internal Affairs to local self-government bodies although this was envisaged by the Action Plan for implementing Public Administration Reform Strategy for 2016-2020 for the second quarter of 2018. Decentralization of these services should bring them closer to consumers, as well as promote their integration into the centers of the provision of administrative services (CPASs). Secondly, the mechanism of dual exams (first in the driving schools, and then in the territorial bodies of the Ministry of Internal Affairs) remains. Since the draft law provides for a mechanism of control by the Ministry of Internal Affairs of the driver training centers (accreditation, certification of their specialists, etc.), only these centers must take examinations. If such institutions provide poor- quality training for drivers, the Ministry of Internal Affairs is authorized to apply sanctions against them. Thirdly, the draft law provides for the issuance of a driver’s license only with a contactless electronic carrier (CEC). This, in turn, will lead to increasing its price and the need for expensive infrastructure to issue such documents and work with them. At the same time, owners of the CEC driver’s license receive no benefits. This is also not part of Ukraine’s commitment to the EU. Fourthly, the draft law provides for reconciliation, inspection, study of the vehicle number and identification numbers of the carbody, frame (chassis) during its registration. Such procedures are completely inappropriate during these registration actions. They cause extra bureaucratic obstacles. In particular, they complicate the process of integrating these services into the CPASs, as they require obligatory equipment of observation platforms. It is expedient to carry out the said reconciliation and inspection only during the technical inspection of vehicles, which must be made mandatory for all drivers without exception. “Great breakthrough is that finally the list of documents and the fees for the administrative services of the Ministry of Internal Affairs is proposed to be fixed at the level of the law. However, other outstanding issues remain. These are “double” exams, unwillingness to decentralize these services, unnecessary overview of car components during its registration. The draft law should solve these problems as well. In this case it can be called a progressive act”, – noted the CPLR expert Viktor Tymoshchuk.
  • 6. In November, the Centre of Policy and Legal Reform celebrated 22-nd annivesary. On this occasion we review the results and share the achievements of our organization during this time. Constitution and parliamentarism • Lobbying (in 1998-2002) of the transparency of the activities of the Verkhovna Rada of Ukraine, in particular publication of the website www.zakon.gov.ua of the draft laws submitted to the Parliament even before they were available on the Parliament’s website. • Preparation of Green and White Books on Constitutional Reform, which contain respectively the list of problems of the Constitution of Ukraine and suggestions on their solution. • Active participation in improving the legislation and practice related to the freedom of peaceful assembly and the freedom of associations, including participation in the development of the draft Law “On Public Associations” adopted in 2012. • Fighting against unconstitutional powers of parliamentary political parties to exclude candidates to people’s deputies of Ukraine from the election list of a political party after the publication of the results of voting, which were canceled by the Constitutional Court of Ukraine in 2017. • Fighting against unconstitutional Law “On All-Ukrainian Referendum”, adopted in 2012. It was canceled by the Constitutional Court of Ukraine in 2018. Development of a new draft Law “On All-Ukrainian Referendum”, which is under consideration in the Verkhovna Rada of Ukraine. • Strengthening the independence of constitutional justice through monitoring of contests for the positions of judges of the CCU, the activities of the CCU, information and education activities. 22 YEARS OF THE CENTRE OF POLICY AND LEGAL REFORM Executive power • Participation in the development of the Concept of Administrative Reform in Ukraine, approved by the President of Ukraine in 1998. • Development of the Law “On Local State Administrations”, adopted in 1999. • Development of the Law “On the Cabinet of Ministers of Ukraine”. The CPLR experts struggled for its adoption since 1996. Eight times it was passed by the Verkhovna Rada of Ukraine and subsequently vetoed by the President of Ukraine. As a result, the law was adopted in 2008 (in 2010-2011, it was substantially damaged by Yanukovych’s regime, but in 2014 the law mostly returned to the previous version). • Development in 2002 and advocacy of the draft law “On Central Executive Authorities”. The law was adopted in 2011 with amendments that generally worsened its quality. • Development in 2008 of the Law “On Access to Public Information”, which was adopted in 2011 after a broad mass media and public organizations campaign. • Participation in the development of concepts and a package of draft laws on administrative and territorial reform and decentralization (2008-2009, 2014). • Participation in the development and long-term (2005-2015) advocacy of the new Law “On Civil Service” (2015), which came into force on May 1, 2016. Preparation of scientific and practical commentary to it and rendering assistance in its implementation. • In 2016, the government launched a ministerial reform aimed at introducing effective policy analysis and strategic planning practice in the ministries. The CPLR has advocated this reform since 2005, and now the Centre is actively working on its further implementation. • Participation in the development of the draft law “On Public Consultations” (introduced by the Government for consideration to the Parliament in 2018).
  • 7. Judiciary • Preparation of the Draft Law “On Access to Court Decisions”, adopted in 2005. On its basis, the Unified State Register of Court Decisions is currently operating. • Development of the concept for the creation of administrative courts in Ukraine and the Code of Administrative Justice, adopted in 2005. A scientific and practical commentary was also prepared for it. • Participation in the development and advocacy of the draft Law “On the Prosecutor’s Office”, adopted in 2014. • Participation in the development of amendments to the Constitution of Ukraine on Justice (2016), the provisions of the Laws “On the Judicial System and Status of Judges” (2014, 2015, 2016), “On the High Council of Justice” (2016). Thanks to the CPLR experts, the mechanisms for cleaning and upgrading of the judicial system were foreseen, including creation of the Public Council for Integrity and measures to protect the independence of judges. • Advocacy of the creation of the Supreme Anticorruption Court, participation in the preparation of normative and legal support for its activities. Criminal Justice • Preparation and substantiation of the reform of the administrative liability institute and the draft Code of Administrative Offenses. • Active participation in the elaboration of the Criminal Procedure Code of Ukraine, the Law “On Free Legal Aid”. Preparation of a scientific and practical commentary to the Criminal Procedure Code of Ukraine. • Assistance in the formation of the National Police: participation in the preparation of the Law “On the National Police” (2015), the Disciplinary Statute of the National Police (2018), the selection of patrol police officers. • Development and advocacy of the adoption of the Law “On the State Bureau of Investigations” (2015). Fighting corruption • Participation in the preparation of the Law “On the National Anti-Corruption Bureau of Ukraine” (2014), strengthening the institutional capacity of the NABU and the SAP through the provision of scientific and methodological recommendations, consultations to detectives and prosecutors, preparation of expert opinions, etc. Preparation of scientific and practical comments to the Laws “On the Principles of Prevention and Counteraction of Corruption”, “On the Corruption Prevention”. • Participation in the development and advocacy of the draft laws that enhance the effectiveness of anti­ corruption policy and made part of the Action Plan on Visa Liberalization between Ukraine and the EU. • Development of a methodology and further anti-corruption expertise of several hundred of draft laws, which allowed to block the adoption of many draft laws that contain corruption-related factors and/or aim to impede the anti-corruption reform. • Preparation of alternative reports on the assessment of the effectiveness of the state anti-corruption policy implementation for the period from 2013 to 2018. • Providing expert support to the NACP, the CEC, the courts and other state institutions on the prevention and counteraction of “political corruption” (participation in the development/improvement of NACP acts in this area, preparation of expert opinions, scientific and methodological recommendations, monitoring reports, etc.). Preparation of the draft law “On Improving the System of Prevention and Fighting Political Corruption”. Administrative services and administrative procedure • Development of the theory of administrative services and preparation of the draft Concept for reforming the system of administrative services (approved by the Government in 2006). • Active participation in the preparation of the draft Law “On Administrative Services”, adopted in 2012. • Contributing to the establishment of pilot Centers for Provision of Administrative Services (CPASs). About 100 trainings and other events for representatives of local self-government bodies on the organization of the work of the CPASs were organized. Ensuring public monitoring of the quality of administrative services. • Since 1999, the Centre participated in the preparation and advocacy of the draft law on the general administrative procedure. It has already been submitted to the Verkhovna Rada of Ukraine for three times by the decision of the Cabinet of Ministers of Ukraine, but not yet approved. In 2018, more than 25 meetings of the working group under the Ministry of Justice with the active participation of the CPLR experts were held.
  • 8. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å FAIR TRIAL Report on the procedures of selection and evaluation of judges in Ukraine has been published In November, a team of experts from the EU-funded Pravo-Justice project (G. Stava, W. Van Bentham, R. Moliène) published a report on the procedures of selection and evaluation of judges in Ukraine. Experts provided a lot of valuable advice on the procedures for qualification assessment of judges and competitions for the judges positions in Ukraine. In particular, they drew attention to the fact that the High Qualifications Commission of Judges (hereinafter – the HQCJ) “should always make motivated decisions, especially when appointing a candidate who received the negative opinion of the Public Council of Integrity.” According to experts, the burden of proof should be put on candidates “to require them to provide explanations in the event of any accusation from the Public Council of Integrity or other evidence available to the Commission.” Experts also suggest in the long term that the legislation should be amended to include more public representatives of the HQCJ. This will not only facilitate the organization of work, but will also contribute to a variety of professional experiences that may be useful in selecting and evaluating judges, and will lead to a more pluralistic view on those who are the most adequate candidates for a judicial position. Selection of judges to the High Anti-Corruption Court and the Supreme Court is ongoing On November 6, on the basis of the submission of international organizations, the HQCJ established the Public Council of International Experts, a body designed to assist the Commission in the selection of judges to the High Anticorruption Court. The Council includes specialists in the field of anti-corruption law: Aurelius Gutauskas, Fleming Christian Denker, Ted Zazechny, Miryan Lazarova Traikovskaya, Lorna Harris, Sir Anthony Hooper. On November 12, an examination was conducted for 836 candidates for the Supreme and High Anti-Corruption Courts. As a result of anonymous written testing, 473 per­sons were admitted to the next stage – practical assignment. In particular: • to the High Anti-corruption Court – 108 persons; • to the Appeal Chamber of the High Anticorruption Court – 48 persons; • to the Cassation Administrative Court of the Su- preme Court – 104 persons; • to the Cassation Civil Court of the Supreme Court – 95 persons; • to the Cassation Criminal Court of the Supreme Court – 54 persons; • to the Cassation Economic Court of the Supreme Court – 64 persons. On November 14, candidates for the High Anti­ corruption and Supreme Courts completed their practical assignment. Its results and the overall result of the exam will become known after the completion of the review of works by the members of the HQCJ.
  • 9. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å High Qualification Commission of Judges creates artificial obstacles to the formation of the Public Council of Integrity On November 21, the HQCJ recognized two organi­ zations as meeting the requirements for attending the meeting dedicated to the establishment of the Public Council for Integrity. In relation to 12 other non- governmental organizations that took part in the selection, the Commission has requested to correct the shortcomings. In response to this decision, public organizations have prepared a statement saying that “among these shortcomings there are many that are not based on the requirements of the law, do not pursue a legitimate purpose and can testify to the creation of artificial obstacles for the NGO to participate in the formation of PCI”. In particular: • in some cases, the HQCJ did not accept the results of a financial audit conducted later than in the last two years, whereas the law only requires the availability of an audit report and does not set any time intervals for its con- duct; • In other cases, the HQCJ unreasonably believed that only the leadership of international organizations in Ukraine (OSCE Coordinator in Ukraine, UNDP, etc.) could make recommendations to public organizations, while the law does not contain such a requirement, and the signa- tures of officials of international organizations were made within their authority; • Commission’s position regarding the recognition of financial audit reports or audit findings as non-compliant is groundless only because they are prepared for confiden- tial use and submission to the grantors, since the law does not set any requirements for the recipients of the reports and the purpose of their preparation, etc. In a statement, NGOs have urged the HQCJ to carefully review all document packages, including those provided additionally; evaluate them impartially and exclusively on the basis of the requirements of the law; allow participation in the meeting of all public organizations, the experience and eligibility of which are confirmed by documents; review decisions on a number of NGOs regarding the recognition of documents as submitted without complying with the requirements of the law, especially where the law does not establish the relevant requirements.
  • 10. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å HONEST LAW ENFORCEMENT AUTHORITIES Law on criminal offenses has been adopted in general On November 22, the Verkhovna Rada of Ukraine adopted in general the Law on the Simplification of Pre-trial Investigation of Certain Categories of Criminal Violations (on criminal offences) (Reg. No.7279-d). It provides for the delineation of violations depending on the severity of the crime, limitation of the scope of the use of punishment related to imprisonment, etc. However, amendments to the CPC provided for by the Law contain serious restrictions on human rights and freedoms, namely: • right to personal freedom – as a result of the intro- duction of new conditions for the detention of individuals, which directly contradict the Constitution of Ukraine; • principle of legal certainty – due to the possibility of interviewing individuals and the withdrawal of tools and means before the start of a formal investigation; • right to protection in a simplified proceeding, where the participation of an accused person or his/her attorney is no longer required. Parliament passed the Law, despite the call of the public to refrain from such a step and the position of the Council of Europe, which gave a negative opinion in relation to this document. In particular, European experts noted: “The need for effective response to mass crime for minor offenses should not lead to neglecting basic procedural guarantees. Unfortunately, such neglect will be the result of the proposed procedure (by the draft law – author’s note), which will allow for the application of procedural actions before any information is submitted to the Unified Register both in circumstances that have led to past abuses and in other cases in respect of which no provision has been made for the use of appropriate safeguards against such abuse; in addition, it will leave unclear restrictions on the length of the investigation and will create the possibility of putting pressure on suspects to forcibly convict themselves and deprive the party of the protection of fundamental rights” (paragraphs 193, 194 of the Opinion). In the view of the above, representatives of the public are determined to demand that the President of Ukraine applies the veto right to this Law. State Bureau of Investigation began its work On November 27, investigators of the State Bureau of Investigations initiated the first criminal proceedings. Thus, three years have passed since the Parliament adopted the Law “On the State Bureau of Investigation”, co-authored by experts of the Centre of Policy and Legal Reform, a competition was held for the positions of managers, investigators and civil servants and the work actually began. Beginning of the SBI work on the investigation of official crimes means the final deprivation of the prosecutor’s office of functions of pre-trial investigation and bringing its functions in line with the Constitution. The SBI immediately began functioning in the format of the headquarters and seven territorial departments in Kyiv, Lviv, Khmelnytsky, Poltava, Kramatorsk, Mykolayiv and Melitopol, which evenly cover the whole territory of the state.
  • 11. www.pravo.org.ua NEWSLETTER No 13/2018(November, 2018) ä ð å ANTIcorruption International Monetary Fund and the World Bank point out that the effectiveness of the fight against corruption in Ukraine is very low On November 15, 2018, at the Annual Fitch Ratings Conference in Kyiv, Gosta Ljungman, the IMF Resident Representative in Ukraine, and Satu Kahkonen, the World Bank Country Director of for Ukraine, Belarus and Moldova noted the low effectiveness of the Ukrainian authorities in combating corruption. By saying this, Satu Kahkonen emphasized that the high level of corruption in Ukraine and prevailing of personal decisions over the rule of law is what constrains investors. “We communicate a lot with different investors, we see that there are opportunities for investment in Ukraine, but at the same time we notice the investors’ concerns about these issues,” she said. Such statements by representatives of the IMF and the WB are not just indications that these international institutions are aware of the real situation with corruption in Ukraine, but that the further prospects for providing Ukraine with financial assistance depend to a large extent on the effective activity of the Ukrainian authorities in the fight against corruption, and that without significant progress in solving this problem, Ukraine should not expect foreign investment, rapid economic development, improvement of living standards, etc. The very fact of the IMF and the WB announcement that the anticorruption policy in Ukraine is ineffective will for a long time be a “black spot” on the reputation of Ukraine leading to significant worsening of the general image of the investment climate in Ukraine and negative effect on the prospects of Ukraine’s cooperation with foreign and international partners. For this very reason Ukrainian authorities urgently need to move from imitation to a real fight against corruption. This process should begin with the development of a nationwide concept of prevention and combating corruption, based on the results of recent corruption studies in Ukraine and in the world, taking into account international and foreign experience in counteracting this phenomenon. Based on this concept, a high-quality Anticorruption Strategy (for 2019-2021) should be developed and approved with subsequent adoption of the National Program for its implementation. In the future, every effort should be made to ensure that the anti-corruption measures are implemented in a timely and effective manner, the objectives are fulfilled, and the goals achieved. Dmytro Kalmykov, the CPLR expert, stressed: “For almost a year in Ukraine there is no basic strategic document in the field of prevention and counteraction corruption – the Anti- Corruption Strategy. This led to unbalanced and inefficient activities of anti-corruption bodies (some institutions are in a state of permanent “conflict”), while other state bodies and local self-governments carry out those anti-corruption measures that are intuitively considered expedient, or do nothing at all. Under such circumstances, one cannot hope for any progress in the area of prevention and counteraction of corruption”.
  • 12. www.pravo.org.ua www.facebook.com/pravo.org.ua/ e-mail: centre@pravo.org.ua phone: +38 044 278 03 17 +38 044 278 03 72 fax: +38 044 278 16 55 Kyiv, Ukraine, 4 Khreshchatyk St., of. 13 Postal code: 01001 December 4 – briefing in the Parliament “How to return to Ukrainians the Right to a Referendum” (Kyiv) December 13 – Brain-ring “Elections and Democracy” (Kyiv) December 17 – training “Constitutional complaint” (Zaporizhzhya) December 17 – Seminar-training “Public monitoring of court cases on high-level corruption” (Kyiv) December 17-18 – training “Integration of new services to the centers for the provision of administrative services: challenges and ways of overcoming” (Odessa) ANNOUNCEMENTS