The main change proposed by this draft law concerns the Advisory Group of Experts (AGE) — a body that examines candidates for the position of a judge of the Constitutional Court.

The advisory group currently consists of 6 members: 3 international independent experts and one member from the Parliament, the President, and the Council of Judges of Ukraine each. They evaluate the documents submitted by the candidates, conduct interviews for competence, moral qualities, etc.

How are things supposed to happen now?

Currently, the quorum for the meeting of the Advisory Group is 4 members. The draft law proposes increasing this number to 5.

This makes it impossible for a candidate to get an equal number of votes: 2 for “fit” and 2 for “unfit,” like now. In this case, a second interview should be held. If the candidate receives an equal number of yay and nay votes, again, he or she will be considered ineligible for the position.

What will change?

Introducing a quorum of 5 people will help to accelerate the selection procedure because then it will not be necessary to conduct repeated interviews. However, this increases the risk of a situation where the further participation of many truly worthy candidates will be blocked because increasing the quorum requires greater consolidation of members of AGE members.

We have already observed a similar problem in the competition for the head of SAPO. Back then, only two candidates reached the final stage due to the identified formula for decision-making at the stage of integrity interviews.

At the same time, the Venice Commission recommended including a seventh member, an independent international expert, in the Advisory Group of Experts, in its opinion of December 20, 2022. This would greatly reduce the possibility of political influence on decisions regarding candidates.

Representatives of civil society, including Transparency International Ukraine, have emphasized the need for such changes multiple times. NGOs called on the Venice Commission and other international partners not to delegate experts to the AGE until the indicated changes to the law are made.

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Criminal, administrative, civil, and disciplinary liability for corruption and intentional failure to submit a declaration or lies in it was declared inconsistent with the Ukrainian Constitution. The Criminal Code article which provided for imprisonment of up to 2 years no longer existed. A significant part of the NACP’s powers were lost.

There came a time of deep shock and misunderstanding of how to reorganize everything comprehensively and quickly and restore what had been achieved over the years.

After the Constitutional Court’s scandalous decision, it became necessary to restore the anti-corruption infrastructure as soon as possible. In December, the Verkhovna Rada has restored the NACP powers on corruption prevention and verification of officials’ declarations. We have approved this decision.

The adopted amendments fully consider the decisions of the Constitutional Court and the opinion of the Venice Commission. They established additional peculiarities of financial control regarding judges of ordinary courts and the CCU without restricting the independence of the NACP or the judiciary. We have discussed other advantages of the Law in our legal analysis.

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

The final and transitional provisions of the Law state that:

Within a month (starting from December 30), the NACP develops draft procedures for verifying declarations and monitoring the lifestyle of judges of ordinary courts and the CCU and submits them for approval to the HCJ or the Meeting of CCU Judges. They have a month to approve them. If there is no approval, the NACP verifies the declarations and monitors the lifestyle of judges of general courts and the CCU under the procedure established by the Law.

The NACP complied with the Law and developed relevant projects within a certain period. The High Council of Justice and the Constitutional Court confirmed the receipt of these documents and started the “approval procedure.”

It is worth mentioning that none of the projects could provide for the establishment of those additional peculiarities that the Law does not provide. However, later both agencies refused to approve these projects (CCU — February 23, HCJ — March 1). Simultaneously, the High Council of Justice noted that “under the anti-corruption legislation, the HCJ must approve the drafts.” Here I would like to disagree.

In what way will declarations of judges of ordinary courts and the CCU be verified?

Anyway, verification will take place anyway, but under the general procedure and with the peculiarities established by the Law. The idea of the HCJ regarding the mandatory approval of procedures was a mistake.

The provision of the Law on “lack of relevant approval” should be understood as a non-receipt of response and the refusal of such approval. Moreover, even if the High Council of Justice or the Constitutional Court approves these draft documents later, this will not change the situation. The point is that the deadline for such approval established by the Law will be over.

Therefore, the NACP can start verifying the declarations of judges of ordinary courts and the CCU when the next wave of filing annual declarations ends (after April 1).  

The NACP can either add the relevant peculiarities regarding judges of ordinary courts and the CCU, provided by the Law, to the general procedure for the full verification of declarations or refer directly to the Law’s provisions. The situation is similar with the general procedure for lifestyle monitoring.

It would be a mistake to say that the High Council of Justice or the Constitutional Court blocked the procedure. Judges of ordinary courts and the CCU are no exception in this regard, and they are subject to the anti-corruption legislation. And soon, we will be able to see the results of the NACP’s activity. It will be interesting to find out.

The post When Will the NACP Verify Judges’ Declarations? first appeared on Transparency International Ukraine.

Recommendations on amendments to the Law of Ukraine “On the Constitutional Court of Ukraine”:

1. The Venice Commission proposes that the Verkhovna Rada clearly stipulate in the legislation that the Constitutional Court in its decisions has no right to go beyond the issues specifically raised by the subject of the appeal. In its argument, the Commission notes that in its decision of 27 October 2020, the CCU not only “indeed went beyond the request,” but also did not justify the need for this broader approach.
2. It is proposed to legally oblige the court to clearly justify the grounds for declaring each individual provision unconstitutional. In this opinion, the Venice Commission reiterated that the style of reasoning and decision drafting in this case falls short of standards of a clear reasoning in constitutional court proceedings, and requires improvement This is unacceptable when the issue in question is repealing legislative provisions.
3. Part of the opinion is dedicated to recusals / withdrawals and disciplinary sanctions concerning CCU judges in general.

• The members of the Commission also mentioned the case when the CCU left without proper consideration and justification the appeal of one of the parties regarding the conflict of interests of three judges in the case that initiated the crisis. The Commission advises to clearly explain the decision on applications for withdrawal (recusal) either in the main decision of the CCU, or in a separate procedural decision if such an issue occurs.
• They noted the lack of sufficient legislative regulation of the issue of disciplinary liability of judges of the CCU in general, both in the Law of Ukraine “On the Constitutional Court of Ukraine” and in its Rules of Procedure. It is also recommended to provide for the public hearing of disciplinary cases against CCU judges, including when the case concerns a breach of a judge’s obligation to withdraw in the event of a conflict of interest.

4. The Commission recommends that it be legally possible to reduce the quorum if it is not possible to gather a quorum due to the withdrawal of a judge (judges).
5. A case can be re-opened only if the criminal liability of a judge in connection with a decision that has been made has been established (such as bribe-taking). And this, too, must be clearly provided by law.
6. And if the Senate declares a provision of the law unconstitutional, the Grand Chamber must confirm such a decision at the request of the president or Parliament.

A number of recommendations were also made regarding the selection and appointment of CCU judges.

• In order to depoliticize the composition of the Constitutional Court, the judges on the parliamentary quota should be elected with a qualified majority. For this, a constitutional  amendment would be required at a later stage.
• To ensure that only qualified persons can become judges of the Constitutional Court, a screening body with an international component could be established. Such a body could include international  human rights experts and participation from civil society, to ensure the moral and professional qualities of the candidates.
• Only following the improvement of the appointment system and creation of a screening agency would it make sense to select judges for vacant positions in the Constitutional Court.

Here are some highlights from the opinion which were not directly reflected in the recommendations.

• The Commission unequivocally supports the practice of postponing the implementation of CCU decisions for some time. This does not affect the binding nature of the court decision at all, but it would allow for changes in the law with fewer consequences. This is a particularly important tool when it comes to abolishing criminal liability and closing cases. This practice has not been used in declaring the provision on illicit enrichment and, more recently, Article 366-1 of the Criminal Code unconstitutional.
• The dismissal of CCU judges by a political decision is a serious violation of the principles of the rule of law, the separation of powers and the independence of the judiciary. It is also inadmissible to block the work of the CCU by the Parliament.
• The Commission notes that criticism of the CCU’s decisions is perfectly normal. However, government officials and civil servants should still be restrained in their assessments. Threats to judges to influence decisions are unacceptable.

Despite significant criticism of the CCU judges’ actions and the direct decision that plunged the country into crisis, the Venice Commission believes that the CCU reform process should consult the court on all aspects of the reform. However, the court, too, must demonstrate some restraint if the provisions changed in the process of reform are later considered by them for their compliance with the Constitution.

Many of the Commission’s recommendations have already been voiced, including by Transparency International Ukraine. And this primarily concerns the urgent need to improve the system of selection of judges and ensure a fair and open competition. This should precede recruitment of candidates for vacant positions.

Currently, a number of bills on overcoming the constitutional crisis and reform of the CCU have been submitted to the parliament. However, none of them solves the complex problem, nor do they fully take into account the recommendations of the Venice Commission. Therefore, it would make sense to initiate a new comprehensive draft law taking into account all the recommendations from the Commission and consider it in the near future.

We should remind you that on December 9, the Venice Commission and the Directorate General of Human Rights and Rule of Law published their Urgent Joint Opinion on the constitutional crisis in Ukraine.

The post Constitutional Reform: Opinion of the Venice Commission first appeared on Transparency International Ukraine.

Oleksandr has noted that:

• it is necessary to introduce imprisonment at least for high-ranking officials for failure to file a declaration or intentional false declaration (from UAH 1 million);
• fines for criminal and administrative liability should be increased;
• new articles should be included in the list of corruption-related criminal offenses.

“While changing legislation, it is necessary to take into account the Constitutional Court decisions. The threshold for criminal liability used to be approximately UAH 525 thousand, but this article was declared as inconsistent with the Constitution of Ukraine. So, now the threshold should be raised. I believe that UAH 1 million is a fairly reasonable amount, which correlates with the provisions of the anti-corruption legislation regarding civil forfeiture of unexplained assets,” the legal advisor has said.

The lawyer has also explained that, for example, the administrative fine will range from UAH 17 thousand to 42.5 thousand.  TI Ukraine’s opinion is that the fines for “false declaration” should be significantly increased.

We remind you that the Constitutional Court of Ukraine has granted the whim of certain MPs, effectively terminating the majority of the anti-corruption reform. For a month now, the Parliament has not been able to resolve the crisis. However, it is important to restore liability for deliberately declaring false information by the end of 2020, because from January 1, a new wave of submitting declarations begins.

The post Violations in Declarations Should Be Punished by Imprisonment first appeared on Transparency International Ukraine.

The applications will be accepted and processed as usual. No member of the committee supported a procedure of true competitive selection of judges, as required by the Constitution.

We remind you that on November 2, President Zelenskyy announced that Constitutional Court judges had to be selected only through a transparent and open procedure. However, as soon as November 5, the law enforcement committee of the Parliament approved a list of six individuals for new judges to be selected among them by the Parliament. On November 6, the parliament voted, without selecting a single judge, though.

Exactly how the integrity and competence of these candidates were tested, as required by the Constitution, was not reported to the public, and there seems to be no reason to believe that this will go public during the new competition.

“MPs urgently need to amend the law on the Constitutional Court of Ukraine and stipulate a competitive recruitment procedure that would be transparent and open for all professionals,”  says TI Ukraine’s Executive Director Andrii Borovyk. “The competition for the vacant positions — there’s currently three of them — needs to take place pursuant to the new rules. If we do not start resolving the problem now, very soon, we can wake up in a different country — one with a ruined economy instead of reforms.”

MPs also proposed including projects on the agenda that are meant to help the country resolve the current constitutional crisis. In particular, the committee recommended draft law 4311, submitted by Oleksandr Korniyenko, and alternative draft laws 4311-1, 4311-2, as well as draft law 4319 proposed by Olha Sovhyria. All these documents are intended to regulate the activities of the Constitutional Court by changing its quorum and the number of votes required for a decision.

In addition, MPs proposed putting Yulia Tymoshenko’s draft law 4292 on the agenda — it proposes 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. This draft law provides for only disciplinary liability for violations, which will be considered by the HCJ following HQCJ reports.

We explained all the shortcomings and risks of these draft laws in our legal analysis.

The post Legal Policy Committee Announces Call for Positions of CCU Judges first appeared on Transparency International Ukraine.

They will become invalid on December 16. The Verkhovna Rada of Ukraine has less and less time to handle the situation. Therefore, most likely, the National Anti-Corruption Bureau will soon face considerable obstacles doing its job. Although a number of draft laws have already been submitted, they have not even been considered in the committee yet. Moreover, the draft law promised by the President has not yet been registered.

Let’s think back to what this decision of the Constitutional Court is about, and what the possible consequences are of deferring the adoption of amendments to the legislation.

The decision of 16 September 

The Court declared certain provisions of the Law “On the NABU” unconstitutional. These are the powers of the President of Ukraine to establish the National Anti-Corruption Bureau of Ukraine, to participate in its formation and in the establishment of bodies that will control it.

On September 16, the Constitutional Court of Ukraine has recognized the following powers of the President as inconsistent with the Primary Law of Ukraine:

• to establish the National Anti-Corruption Bureau of Ukraine;
• to appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine;
• to appoint three persons to the selection board for the position of Director of the National Anti-Corruption Bureau of Ukraine;
• to appoint one member of the external control commission to conduct an independent; assessment (audit) of the performance of the National Anti-Corruption Bureau of Ukraine;
• to approve the Regulations on the Public Oversight Council and on the procedure for its formation.

The Parliament has been slow to take any action, although there is only a month left to do it.

TI Ukraine’s Head of Legal Kateryna Ryzhenko expressed her opinion on this issue for Radio Free Europe:

“At first, there had been much discussion about this decision, but in the end, after other fails and crises, they managed to forget about it. The Constitutional Court ruled all the powers that the President of Ukraine had had under the Law ‘On the NABU’ to be unconstitutional. Now the Parliament is obliged to bring the legislation in line with the Constitution in three months. The Verkhovna Rada has not yet considered it either in committees or in the first reading. And if MPs don’t do it urgently within a month, we will end up in a situation where the old provisions no longer are in force, and the new ones have not been adopted instead. It will turn out that the articles of the law which were the basis for establishing NABU and the Public Oversight Council are unconstitutional. And then legislative and legal chaos will ensue. So, it is difficult to imagine what exactly will happen next.

The decisions of the Constitutional Court over this year have not been accidental, as they systematically have weakened the anti-corruption infrastructure. At least, this is how the National Anti-Corruption Bureau has interpreted the situation. The NABU thinks that the main challenge is to maintain the anti-corruption bodies` independence.

What are the consequences?

Radio Free Europe has collected expert opinions on the consequences that await Ukraine if the Verkhovna Rada does not respond in time.

Legal chaos: Ukrainian courts will question certain actions of the NABU, especially the staffing decisions of its Director.

Pressure on the NABU from those forces that are not interested in solving corruption crimes will increase.

One of the next decisions of the Constitutional Court may be to declare unconstitutional the actions of the Parliament in the process of forming the Anti-Corruption Bureau.

There will be no legal mechanisms for appointment/dismissal of the NABU detectives, as well as for appointment/dismissal of the Director of the Bureau.

If the issue is not resolved by the time Artem Sytnyk’s term of office ends, it will be impossible to appoint a new Director of the body.

Support from the international community for Ukraine will keep decreasing, as the creation of an effective anti-corruption infrastructure was one of Ukraine’s obligations to Western partners.

Is there a way out?

Now there are two major issues:

1. How to slow down the Constitutional Court’s desire to infringe reforms and the integration progress towards Europe.
2. How to restore the effective anti-corruption system and its tools.

If we do not start resolving problems now, then very soon we will wake up in a country without reforms and with an economic collapse.

So, we offer the following action plan:

We call for the immediate voluntary resignation of all judges of the CCU who supported that shameful decision. However, it will be possible only if they have a modicum of respect for themselves and the State. Ukraine is not their hostage.

The Parliament and all parties should put aside their political whims and focus on the key issue – the Constitutional Court of Ukraine.

MPs should change the law on the Constitutional Court of Ukraine in terms of increasing the quorum to at least 15 judges to participate in a proceeding for decision-making.

It is necessary to amend the law on the Constitutional Court of Ukraine and elaborate a transparent, fully apolitical, and accountable competition procedure.

After that, a competition under new rules will take place/will be organized, and vacant positions (there are 3 of them now) will be filled.

The President and Parliament should start a complete reset of the HCJ and HQCJ and a full dissolution of the Kyiv Administrative Court. The situation with the Constitutional Court is another indicator of a full-scale judicial reform problem (or something like that).

So, we will launch a legal mechanism for resetting the Constitutional Court with breakers (quorum) to arbitrary or stimulated by the country enemies` actions. All these actions are quite legitimate, comply with both the Constitution and the powers of the legislative branch of government, and therefore will be adequately perceived by the expert community and our international partners.

The post Without Amendments to Law on the NABU, Legal Chaos Will Ensue first appeared on Transparency International Ukraine.

It is not enough to select new judges according to old rules in order to break this vicious circle of dishonesty. Firstly, it is necessary to ensure integrity of those who appoint judges, namely members of the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ), and to create special independent commission for the selection of judges to the Constitutional Court.

We welcome the decision of the Parliament to return for rework draft lawNo. 3711, which restarts the competitive selection of members to the HQCJ. The procedure of HQCJ relaunch should be finalized according to recommendations of the Venice Commission with the involvement of experts from the public and representatives of the international community, which is planned to be involved in formation of the competition commission of the HQCJ

At the same time, we are concerned that the draft law on ensuring integrity of the HCJ has not been proposed yet for consideration by the Verkhovna Rada. Experts of the Venice Commission also emphasize that this issue is urgent and needs to be resolved immediately. The draft law on ensuring integrity of the HCJ, which takes into account international commitments of Ukraine to the EU and the IMF, was developed by the Ministry of Justice.

In our opinion, the issues of integrity of HQCJ and GRP HCJ should be resolved by a single drafl law, which will consolidates the provisions suggested by the Ministry of Justice on updating the HCJ and finalized provisions on the competition for HQCJ. The process of drafting this law should be open to the public.

Finally, the procedure on formation of the Constitutional Court foreseen by the law must be changed. The provision of the Constitution on competitive selection of judges should be implemented in laws “On the Constitutional Court of Ukraine” and “On the Rules of Procedure of the Verkhovna Rada of Ukraine” so that only those candidates who have successfully been selected and evaluated by independent competition commission could apply for positions in this important body.

If these amendments are not implemented immediately, Ukrainians will continue to be held hostages by dishonest judges and their dishonest decisions. We call on Members of Parliament not to procrastinate and guarantee open and inclusive decision-making process.

All-Ukrainian civic association “Avtomaidan”

Transparency International Ukraine

DEJURE Foundation

Anti-corruption Action Centre

Center for Political and Legal Reforms

Translation by Anti-Corruption Action Centre

The post We Urge MPs to Ensure Integrity in Judiciary Including CCU first appeared on Transparency International Ukraine.

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.

The post Ways to Resolve Constitutional Crisis Proposed by MPs first appeared on Transparency International Ukraine.

The post Is the Razumkov’s project a new utopia? first appeared on Transparency International Ukraine.

This is where the problem occurs, since some provisions of this law were ruled unconstitutional last week by the Constitutional Court of Ukraine, and under draft law 3450, it is those provisions that should be amended. It is actually unclear now how protection of whistleblowers should take place, considering the recent events.

Here are the changes proposed by MPs:

• Unified Portal of Whistleblower Reports will be created;
• legal protection for whistleblowers will be provided only by lawyers of the free legal aid system;
• internal and regular communication channels are expanded and specified respectively;
• whistleblower reports will be considered only if they concern a specific individual.

TI Ukraine’s lawyers carefully analyzed this document back in the day and proposed their recommendations:

• to avoid the approach when a whistleblower report can only be considered when it concerns a specific individual;
• to reinforce penalties for leaking information about whistleblowers;
• to retain provisions on engagement of the NACP in a court hearing as a third party;
• to forward a misfiled whistleblower report to the relevant agency.

It remains a mystery how MPs are going to work on this draft law considering the provisions it amends are unconstitutional. But we truly hope that MPs wll still find a way to finish what they started and improve protection of whistleblowers.

The post Parliament Strengthens Whistleblower Protection first appeared on Transparency International Ukraine.

In spring, then-Head of SAPO Nazar Kholodnytskyi served the Odesa mayor with charges concerning his 2017 declaration.

The investigation established that Trukhanov failed to indicate property and income belonging to his wife in his declaration, including an apartment in Odesa, parking lots, a car, corporate rights, etc. The SAPO estimated the undeclared assets to cost about UAH 16 million.

We remind you that Trukhanov is also accused of lying in his 2015-2016 declaration. According to prosecutors, knowingly false information on property and other items subject to declaration differs from the truthful information by over UAH 33 million and UAH 18 million respectively.

The post Case on Trukhanov’s Declarations Closed due to CCU Decision first appeared on Transparency International Ukraine.

They are: Oleksandr Mykolaiovych Tupytskyi, Viktor Valentynovych Horodovenko, Iryna Mykolaivna Zavhorodnia, Oleksandr Volodymyrovych Kasminin, Viktor Vasylovych Kryvenko, Oleksandr Mykolaiovych Lytvynov, Volodymyr Romanovych Moisyk, Serhii Volodymyrovych Sas, Ihor Dmytrovych Slidenko (filed a letter of resignation), Petro Todosiovych Filiuk, Halyna Valentynivna Yurovska.

Corruption is recognized as one of the threats to national security. Legislative norms which were declared unconstitutional by the decision of the CCU formed the basis of the anti-corruption system. We are outraged by this decision, as it significantly harms the country’s reputation and turns the vector of its development around. With their decision, the judges infringed on Ukraine’s strategic course towards the EU and NATO, which is set forth in the Constitution of Ukraine and which we achieved after the Revolution of Dignity.

Making this heinous decision, the CCU judges exceeded their powers and issued the decision in the situation of a conflict of interest. The consequences of this decision are irreversible, with over 100 cases considered by the High Anti-Corruption Court and investigated by the National Anti-Corruption Bureau closed. The perpetrators will not be punished. By violating its international commitments under agreements with the IMF, the EU and other international partners, Ukraine risks losing the external financial support that it desperately needs during the ongoing crisis.

In addition to the damage already caused by the judges, now, laws on the language, on the land reform, on the High Anti-Corruption Court and on the Deposit Guarantee Fund are similarly under threat. Petitions about them are already on the CCU agenda, and decisions may be issued very soon.

We are tired of dishonest judges and illegal decisions that are not based on the rule of law and justice. That is why we call on the judges of the Constitutional Court to resign voluntarily.

To sign the statement, please email TI Ukraine’s Head of International Relations and Development Anastasiya Kozlovtseva: kozlovtseva@ti-ukraine.org.

Transparency International Ukraine, Automaidan, Anti-Corruption Headquarters, Center for Public Monitoring and Research, DEJURE Foundation, Anti-Corruption Research and Education Centre (ACREC), CSO Public Television of Svitlovodsk, CSO Kremenchuk Anti-Corruption Center, CHESNO movement, CSO Kryvyi Rih Investigation Center,  CSO Center for Economic Strategy, CSO Together Against Corruption, CSO Agency for Urban Initiatives, CSO Unity and Development, Agency for Legislative Initiatives, Ukrainian School of Political Studies, CSO Agency of Efficient Solutions, Independent Defense Anti-Corruption Committee (NAKO), Institute of Analysis and Advocacy, CSO Association of Political Studies, Exampei Center for Ukrainian Politics, CSO Analytical Advocacy Center, Lviv Regulatory Hub, Institute of Legislative Ideas, 100% Life Kyiv region, CSO Mykolaiv Center for Journalist Investigations, CSO Ninth Pole, CSO Women’s Anti-Corruption Movement, CSO Center for Political Studies, CSO Electronic Democracy, Ukrainian Arbitration Association, YouControl, CSO Zaporizhzhia Investigation Center, CSO Kharkiv Anti-Corruption Center, Anti-Corruption Action Center, 100% Life Charity Fund, CSO Center for Media Research Prozoro, Public Control Platform, August Virlich Foundation, ZMINA Human Rights Center, Center for Public Monitoring and Analysis, Public Oversight Council under the National Anti-Corruption Bureau, Public Council at the National Agency on Corruption Prevention.

The post Constitutional Court Judges Must Resign first appeared on Transparency International Ukraine.