Since the beginning of the constitutional crisis caused by the shocking Decision of the Constitutional Court of Ukraine №13-r / 2020, MPs (apart from representatives of Opposition Party for Life) and the President have filed a total of 24 draft laws as of the morning of November 10.
14 of them concern the renewal of the anti-corruption infrastructure, the powers of the NACP or the responsibility for false declarations, 7 — directly the activities of the Constitutional Court, and 3 — both areas. The authors believe that these documents are meant to resolve problems arising on October 27.
We at TI Ukraine continue to insist that the issue of further activity of the Constitutional Court of Ukraine is the key priority.
But first, let’s talk about draft laws that restore proper e-declarations and NACP powers. This issue cannot be resolved right away, and all the damage caused by the CCU will not be repaired quickly either, as cases of false declarations are already being closed by both the NABU and the High Anti-Corruption Court.
We should start with draft law 4304 by Dmytro Razumkov. After the meeting of the Anti-Corruption Committee of the Parliament, this document seems most likely to be passed. However, this does not mean it’s perfect.
The truth is, the so-called Razumkov’s draft law does not take into account any reasons why the abolished provisions were ruled unconstitutional. This, again, creates the risk that this new document will be ruled unconstitutional as well. Officials will be able to safely ignore this law, and cases initiated while it is in effect will be closed again. Overall, this draft law is very far from the rule of law and legal technique.
The alternative draft law 4304-1 filed by Dubinskyi would only worsen the situation, proposing not to apply the entire Law “On Corruption Prevention” to judges, including Constitutional Court judges. Adoption of such provisions would do away with the judges’ obligation to file declarations, which was not even in the CCU decision. They would also be exempt from requirements to ethical conduct, transparency and access to information, restriction on the use of power of the office, receipt of gifts, side jobs, coworking with family members, general obligations on prevention and settlement of the conflict of interest, etc. A similarly wrong idea serves as the basis for draft laws 4287 by Shevchenko of the Servant of the People and 4293 by Yulia Tymoshenko, which also puts everything down to the Laws “On Judiciary and the Status of Judges” and “On the High Council of Justice” and exempts judges from the effect of renewed articles previously ruled unconstitutional, even though that makes no more sense.
Dubinskyi’s proposal to assign the power to verify declarations and lifestyle monitoring temporarily to the State Judicial Administration would not achieve the main purpose of such mechanisms, i.e. corruption prevention. In addition, the SJA does not have the necessary resources, powers, access to the register of declarations or its own register. Elimination of judges from the list of individuals obliged to file declarations makes it completely unclear whose declarations the SJA would verify and what the procedure would be. But even if such a procedure existed, the proposed law is valid for one month, which makes any verification measures pointless.
Yulia Tymoshenko’s draft law 4292 proposes amendments to the Law of Ukraine “On Judiciary and the Status of Judges” to introduce an alternative mechanism wherein judges and potential judges would file declarations on the HQCJ website, in paper form while there is no separate register, and not with the NACP, which remain valid for judges. And this draft law provides for only disciplinary liability for violations, which will be considered by the HCJ following HQCJ reports.
It is proposed to assign lifestyle monitoring temporarily to the SJA (in addition to verification of declarations, which the NACP must hand over from its register), and then to the HQCJ at its initiative or at the request of the HCJ. Verification of declarations under this draft law is entrusted to the HQCJ and is carried out at least once in 5 years. This whole approach cannot ensure effective corruption prevention, especially given the unreformed HCJ and HQCJ. A similar inadequate proposal with the key role of the HQCJ has been put forward in the alternative draft law 4292-1 by Maslov and other MPs.
Iryna Herashchenko’s draft law 4300 restores the abolished provisions on NACP powers and verification of declarations with lifestyle monitoring, which creates the risk of them being ruled unconstitutional again. However, the draft law also creates special conditions for judges (verified by the HQCJ) and Constitutional Court judges (verified by the CCU Integrity Council, whose formation procedure is not established), and it is proposed to assign these powers to the HCJ until the system is put in place. This whole approach cannot ensure effective corruption prevention, especially given the unreformed HCJ and HQCJ.
Draft law 4329 by Denys Maslov and other MPs proposes not only restoring certain “unconstitutional” provisions of the Law “On Corruption Prevention” (though not all of them, for instance, not Article 65 on liability for corruption), but also changing the NACP status from a central body of executive power to a public authority body with a special status. This change should take place with the respective strengthening of parliamentary control over formation and activity of the NACP, which would then be subordinate to the legislative branch. In particular, the parliament will be much more involved in the competitive procedure for selecting the head of the agency. However, this concept is not supported by amendments to the Constitution.
Notably, one of the draft law ideas o the annual national report on implementation of anti-corruption policy fundamentals which will be considered by the parliament, contradicts draft law 4135 on the Anti-Corruption Strategy 2020-2024, under which the national report will be based on results of Strategy implementation instead of being tied to a specific time frame, which is a positive development.
Draft law 4312 proposes granting the HQCJ powers to bring judges who violated financial control requirements (Article 172-6 of the Ukrainian Administrative Code) to administrative liability. But it is the criminalization of this act that is an effective mechanism for preventing corruption and dishonesty of those who are obliged to file electronic declarations. Creating separate agencies which would control judges’ compliance with anti-corruption legislation or any other law also contradicts one of the basic constitutional principles, the equality of all before law.
Draft law 4310 proposes restoring the article on false declarations to the Criminal Code under another number, assigning it to the jurisdiction of the HACC, and investigation to NABU detectives. It completely duplicates Article 366-1 of the Criminal Code (except for the sanction, as the punishment under this draft law is more severe), which was found to be inconsistent with the Constitution of Ukraine. There is still the risk that this provision would be ruled unconstitutional as well. A similar idea is the basis of draft laws 4301 and 4307.
Draft law 4309 proposes adding new parts 5-7 to Article 172-6 of the Administrative Code of Ukraine, which would establish liability for false data in the declaration or for failure to file a declaration.
When the punishment for violations in asset reporting is too mild, as administrative liability is, this creates certain problems for the government and society. They include too short of a period for filing a lawsuit (3 months under the Code on Administrative Proceedings) and no valid mechanism for participation of anti-corruption agencies (NABU, SAPO, HACC) in such cases.
By the way, criminal liability for similar acts is enshrined in the national legislation of the UK, Bulgaria, Italy, Croatia, Georgia, Romania, the United States and Poland. Today, the establishment of effective deterrent sanctions (including criminal ones) for indicating knowingly inaccurate information in declarations is an international standard and an important element of the general system of asset declarations. Therefore, this draft law fails to resolve the problem with e-declarations faced by the Ukrainian society following the CCU decision No. 13-р/2020 of October 27, 2020.
Let us move on to the second part of the problem — the Constitutional Court itself.
First of all, we have to discuss Volodymyr Zelenskyy’s draft law 4288, which goes beyond the scope of the Constitution and has the potential to deepen our constitutional crisis even further. Alternative draft law 4288-1 by Oleksii Honcharenko from European Solidarity proposes to rule the Presidential Decree of 2019 on dismissal of the Parliament and off-schedule elections unconstitutional and to terminate the powers of this Parliament from the day the Law is passed, as well as to hold off-schedule Parliament elections in 60 days. This is another example of ways the current crisis could be exacerbated.
Alternative draft law 4288-2 by Dubinskyi, valid for one month, proposes to establish that the Constitutional Court as of the moment of decision was acting pursuant to the Constitution, and that the Decision itself is binding and cannot be appealed, while the Cabinet of Ministers must file proposals with the Parliament within a week how to regulate the issues in this Decision. Until the legislation is amended, it is proposed to temporarily use the previous versions of the Law “On Corruption Prevention” and Article 366-1 of the Criminal Code.
Draft law 4308 by Halyna Yanchenko proposes to transfer part of the budget funding for the Constitutional Court to education. This would violate Article 148-1 of the Constitution, which stipulates that the government provides funding and proper conditions for the operation of the Constitutional Court of Ukraine, and that the national budget of Ukraine allocates separate funds for the Court based on the proposals of its Head Judge. This draft law also creates the risk of direct funding of the Court by oligarchs or some other inappropriate schemes in the situation of a lack of public funding.
Draft law 4311 by Oleksandr Kornienko and other MPs proposes to require 17 Constitutional Court judges to participate in a proceeding for decision-making. This would be a safeguard for arbitrary actions or treason, but it would be lost if the Parliament appoints two more judges, since the Constitution does not establish the requirement for quorum of judges. It would also complicate abolishing future actions of the authorities which may be unconstitutional. Alternative draft law 4311-1 by Fris establishes not 12 judges, but two thirds of the judges in office. Another alternative draft law 4311-2 by Chornyi, conversely, reduces the quorum from the current 12 judges to 10 judges.
Draft law 4317 by Serhii Ionushas, Davyd Arakhamia and other MPs proposes to amend the Law “On the Constitutional Court of Ukraine.” According to the amendments, the Decision of the Court will be considered approved by the Grand Chamber, and its opinion issued if at least 12 judges of the Constitutional Court vote for it, not 10 as now.
This number may also be too low. TI Ukraine proposed the number to be set at 15. The same change is proposed in draft law 4319 by Sovhyria and other MPs, except they propose to have the CCU Regulation approved by the law, not the Court itself, and to have Senate decisions approved by 6 votes as opposed to two thirds.
In conclusion, we see that there is no perfect, simple and quick solution that could repair all the damage caused by the decision of the CCU of October 27. MPs should focus first on the crisis with the Constitutional Court itself, and then develop a wide range of rules that will be able to restore proper e-declaration and the powers of the NACP with the least risk to their existence in the future.
The analysis has been prepared by TI Ukraine’s legal advisor Oleksandr Kalitenko.