On December 7, 2020, 14 people’s deputies submitted two bills to the Verkhovna Rada:

  • Draft Law “On Amendments to the Law of Ukraine ‘On Corruption Prevention’ to Restore the Institutional Mechanism of Corruption Prevention” No. 4470 and
  • Draft Law “On Amendments to the Code of Ukraine on Administrative Offenses to Establish the Peculiarities of Drawing up a Report on Administrative Offenses Provided for in Articles 172-4-172-9 and 188-46, 212-15 Concerning Judges of Ordinary Courts and the Constitutional Court of Ukraine” No. 4471.

Brief conclusions:

  • the draft laws take full account of the CCU’s decision to ensure the independence of the judiciary and minimize any potential risks of improper NACP interference in the administration of justice;
  • both draft laws restore the previously lost powers of the NACP to all officials unchanged, but with significant additional features and safeguards for judges of ordinary courts and of the CCU, which are aimed at strict compliance with the guarantees of their independence;
  • the draft laws should be supported provisionally and overall as soon as possible to enable further work of the NACP.

Recommendations:

  • make relevant amendments on the peculiarities concerning judges of ordinary courts and the CCU to Laws “On the High Council of Justice,” “On the Constitutional Court of Ukraine,” “On Judiciary and the Status of Judges”;
  • taking into account the experience gained in the implementation of the Law “On Corruption Prevention” in recent years, make future amendments to it that would improve the relevant legal regulation;
  • develop new procedures for the NACP on the selection of declarations for mandatory full verification, the order of such verification based on risk assessment, as well as the automated distribution of responsibilities for full verification and other types of financial control, etc., including the procedure for full verification of the declaration, with involvement of the public and international partners;
  • review the procedure for lifestyle monitoring of declaration subjects as a measure of financial control, taking into account the most recent international practice on this issue;
  • consider the possibility of systematic improvement of the regulation of legal relations by the Code of Ukraine on Administrative Violations.

More details are provided further.

What happened?

On December 7, 2020, 14 MPs, in particular members of the working group on legislative support of effective activities in the field of corruption prevention and improvement of legislative regulation of certain aspects of the work of the Constitutional Court, submitted the following to the Verkhovna Rada of Ukraine:

  • Draft Law “On Amendments to the Law of Ukraine ‘On Corruption Prevention’ to Restore the Institutional Mechanism of Corruption Prevention” No. 4470 and
  • Draft Law “On Amendments to the Code of Ukraine on Administrative Offenses to Establish the Peculiarities of Drawing up a Report on Administrative Offenses Provided for in Articles 172-4-172-9 and 188-46, 212-15 Concerning Judges of Ordinary Courts and the Constitutional Court of Ukraine” No. 4471.

In both draft laws, the designated committee is the Committee on Anti-Corruption Policy, headed by Anastasiia Radina, a member of the aforementioned working group. On December 8, these results of the working group were presented at a meeting of the Committee.

The explanatory notes to the draft laws state that there is a need to restore the institutional mechanism for corruption prevention, taking into account the Decision of the Constitutional Court of Ukraine №13-r / 2020, as well as the need to ensure additional mechanisms to ensure independence of judges of ordinary courts and of the CCU in the exercise of NACP powers of drawing up reports on some administrative offenses.

We remind you that previously, some articles of the Law of Ukraine “On Corruption Prevention were ruled unconstitutional by the Decision of the Constitutional Court of Ukraine No. 13-r/2020 of October 27, 2020 and thus became invalid.

 

What Is Proposed? Commentary.

The draft laws propose to restore the previously lost powers of the NACP, including with regard to judges of ordinary courts and of the CCU.  At the same time, the documents establish certain additional features regarding the procedure for exercising the NACP’s powers in relation to these persons, which are aimed at ensuring strict compliance with the guarantees of their independence. This sound approach will really take into account the CCU Decision №13-r / 2020 and will preserve the efficiency and proportionality of the institutional mechanism for corruption prevention.

In support of this, the explanatory note states that the Council of Europe and the Venice Commission allow the functions of monitoring the declarations of judges and monitoring their compliance with anti-corruption legislation by bodies outside the judiciary. It is also mentioned that the results of the 4th round of GRECO’s evaluation of Ukraine did not provide recommendations for revising the institutional mechanism for monitoring judges’ compliance with anti-corruption legislation and noted that strict requirements for judges’ declarations are necessary given Ukraine’s context.

 

Therefore, in particular, among other things, draft law 4470 proposes that:

  • the mandatory NACP instruction is not made in case of violation of the Law “On Corruption Prevention” regarding ethical conduct, prevention and settlement of conflicts of interest in the activities of a judge of an ordinary court or of the CCU. In this case, the NACP informs the HCJ or the CCU about the detection of such violations, and they will decide on bringing the guilty to disciplinary responsibility.Also, the NACP instruction is not made in issues directly related to the administration of justice by a judge and the administration of constitutional proceedings by a judge of the CCU;
  • the law prescribes a procedure for resolving the issues of bringing to disciplinary responsibility a judge of an ordinary court or a CCU judge who has committed a corruption or corruption-related offense, but the court does not impose a penalty or raise the issue of suspension of a judge of an ordinary court or the Constitutional Court suspected of a criminal violation in the sphere of their professional activity;
  • if a potential administrative corruption-related offense has been committed by a judge of an ordinary court or the Constitutional Court, the report is drawn up and sent to court by the head of the NACP or the deputy head of the NACP, informing the HCJ or the head of the Constitutional Court (this provision should be additionally clarified with a list of the respective articles of the Code of Administrative Violations, including Articles 188-46 and 212-15, which are not technically included in the list of administrative corruption-related offenses);
  • if a potential corruption offense or corruption-related offense committed by a judge of an ordinary court or the CCU is identified, the substantiated conclusion is subject to approval by the head of the NACP or deputy head of the NACP and sent to special authorized subjects on combating corruption, informing the HCJ or the head of the CCU of the fact that such a conclusion has been approved;
  • during external independent audit of the NACP, the Audit Commission will also take into account the information provided by the HCJ and the CCU on the NACP’s compliance with the guarantees of independence of judges in exercise of its powers;
  • the list of public officials who hold responsible and especially responsible positions is reasonably extended under the already approved draft law 4460-d which has already been analyzed by our legal team.
  • if the NACP identifies the fact of non-submission of a declaration by a judge of an ordinary court or the Constitutional Court, the Agency must notify of such a situation the HCJ or the head of the Constitutional Court in writing.

The draft law also establishes additional peculiarities of lifestyle monitoring and full verification of declarations filed by judges of ordinary courts and the Constitutional Court:

  • the procedure for such measures is established by the NACP subject to approval by the HCJ or the Meeting of CCU Judges; however, it cannot establish peculiarities not provided by the Law of Ukraine “On Corruption Prevention”;
  • starting such a verification or lifestyle monitoring, the NACP must immediately, not later than the next working day, notify the HCJ or the head of the CCU;
  • the certificate on the results of such measures is approved by the head of the NACP or his/her deputy;
  • any unlawful influence, pressure or interference in the activities of a judge of an ordinary court or of the CCU during the full verification of declarations or lifestyle monitoring is prohibited;
  • if such interference is suspected, the judge shall immediately notify the HCJ or the Meeting of Constitutional Court Judges no later than the next working day after such a situation manifested itself;
  • The HCJ or the Meeting of Constitutional Court Judges consider such a report and can file a petition with the head of the NACP within 10 working days since the moment of its receipt, which is binding for the head of the NACP to consider. The petition may be connected with eliminating violations or bringing the perpetrators of such interference to liability;
  • the head of the NACP considers such a petition and eliminates violations or informs the HCJ / the Meeting of Constitutional Court Judges on the results of its decision following the consideration of the petition within 10 working days since the moment of its receipt. At the same time, the NACP official guilty of the act or omission undermining the guarantees of judicial independence is subject to disciplinary liability as prescribed by the law.

These peculiarities deserve to be supported, since they take full account of the CCU’s Decision No. 13-r/2020 of 27.10.2020 to ensure the independence of the judiciary and minimize any potential risks of improper NACP interference in the administration of justice, establishing the necessary safeguards and mechanisms to ensure judicial independence.

If we consider draft law 4471, it is proposed that the new Article 257-1 of the Code of Administrative Offenses should establish peculiarities of reports on administrative violations provided for in Articles 172-4-172-9 and 188-46, 212-15 of the Code of Administrative Offenses concerning judges. The draft law also establishes a procedure for handing over the report and the peculiarities of providing explanations to the report by judges:

  • the report will be drawn up by the head of the NACP or the deputy head of the NACP in 3 copies;
  • 2 of them are sent by registered mail with a notice of delivery to a judge of an ordinary court or of the CCU, who is subject to administrative responsibility, for review, clarification, comments and signing. One copy of the signed or unsigned report shall be sent by the judge of an ordinary court or of the CCU together with explanations, remarks on the content of the report, reasons for refusal to sign it, to the NACP by registered mail within 7 working days from the date of its receipt. The second copy of the report remains with the judge;
  • within 7 working days since the receipt of the report, the judge has the right to return the copy of the report on the administrative offense and to provide the NACP official personally or in the presence of a HCJ inspector or the head or deputy head of the CCU with an explanation on the circumstances that may attest to an administrative offense;
  • the report on such administrative offense, together with other materials, is sent to the local general court at the place of commission of such offense. If the copy of the report from the judge is not received within 15 working days since the day of sending, the third copy is sent to the court with an indication of the judge’s refusal to sign the report and provide explanations or comments on its content.

These draft laws must be supported provisionally and overall as soon as possible to unblock the NACP’s work and ensure control over the compliance with the requirements, restrictions and prohibitions established by the Law of Ukraine “On Corruption Prevention” with the establishments of guarantees of judicial independence in exercise of NACP powers.

Further improvement of legal regulation should no longer take place in an “emergency” mode, but with a balanced approach. To accomplish this, we can propose the following recommendations:

 

  • make relevant amendments on the peculiarities concerning judges of ordinary courts and the CCU to Laws “On the High Council of Justice,” “On the Constitutional Court of Ukraine,” “On Judiciary and the Status of Judges”;
  • taking into account the experience gained in the implementation of the Law “On Corruption Prevention” in recent years, make future amendments to it that would improve the relevant legal regulation;
  • develop new procedures for the NACP on the selection of declarations for mandatory full verification, the order of such verification based on risk assessment, as well as the automated distribution of responsibilities for full verification and other types of financial control, etc., including the procedure for full verification of the declaration, with involvement of the public and international partners;
  • review the procedure for lifestyle monitoring of declaration subjects as a measure of financial control, taking into account the most recent international practice on this issue;
  • consider the possibility of systematic improvement of the regulation of legal relations by the Code of Ukraine on Administrative Violations.