Amendments to laws on NABU and Supreme Court: draft bills submitted to Rada

During the May holidays, MPs decided to correct mistakes made by legislators that passed the laws on the NABU and the Supreme Court. The Constitutional Court asked to address these issues as soon as possible. While the NABU was not able to work properly only during the last eight months, the judges of the Supreme Court of Ukraine do not work for the last 5 years and this whole time receive salaries from our taxes.

Cosponsors: four MPs from Servant of the People faction with Davyd Arakhamiia as the first signatory.

Who is affected: Ukrainian citizens, civil servants, judges, top officials, investigators of the National Anti-Corruption Bureau (NABU), the head of NABU, MPs, the President, and the Cabinet.

Draft bill in a nutshell:

• the NABU is defined as a central executive body with special status. The Cabinet will direct and coordinate its work but will not have the authority to give orders, commands, or instructions to the NABU or repeal its acts
• the NABU Director will be appointed by the Cabinet after going through a competition:
• contest committee for selection of the NABU Director will include members appointed by the Cabinet (on the proposal of donors that provided international technical assistance to prevent and fight the corruption) and the National Security and Defense Council
• the committee will propose the two best candidates to the Prime Minister and the Cabinet will choose one of them at its session
• the competition will start the day the law comes into force
• members of the audit committee to audit the NABU will be appointed by the Cabinet on the proposal of international partners. To approve an audit conclusion, the commission will have to agree on it unanimously.

Background:

• in September 2020, the Constitutional Court ruled unconstitutional several provisions of the Law on NABU, in particular, about the President’s influence over the institution. Also, the Constitutional Court has ruled unconstitutional the appointment of Artem Sytnyk as the NABU Director
• according to the CCU’s decision, the NABU is an executive body and, therefore, the President should not influence its creation, appointments of its heads, audit committees, etc.

What is right:

• NABU’s status and the appointment procedure of its head will be compliant with the Constitution. Thus, its decisions will not be at risk from a lawsuit about the unconstitutionality of the agency
• the NABU Director will be more independent, in particular from the Cabinet’s influence. As a result, the agency will have the freedom to be impartial and independent in its work.

What is wrong:

• the President retains his influence over the composition of the selection committee: decisions by the National Security and Defense Council are enacted by presidential decrees, so the President will have his say in selecting the committee’s members. According to the Constitution, he does not have the authority to do that
• the idea to appoint members of the selection committee and the audit committee on the proposals of international partners in practice can be misused and allows the Cabinet to shift the responsibility for its decisions. Also, it is an indication that international partners have excessive influence over the domestic politics of Ukraine.

Cosponsors: 13 MPs from the Committee on Legal Policy with Serhii Demchenko (Servant of the People faction) as the first signatory.

Who is affected: Ukrainian citizens, businesses, judges, government bodies, and local governments.

Draft bill in a nutshell:

• the Supreme Court of Ukraine will be renamed the Supreme Court
• judges of the Supreme Court of Ukraine will be transferred to the Supreme Court after been checked for job competence, professional ethics, and integrity
• judges of supreme specialized courts will be able to apply for transfer to appeal courts without competition and regardless of whether there are open positions in those courts.

Background:

• in 2016, the Parliament supported the initiative of President Petro Poroshenko and passed the law dissolving the Supreme Court of Ukraine and supreme specialized courts and creating the Supreme Court in their stead
• the Constitutional Court has ruled this decision unconstitutional and stated that the rights of the judges of the Supreme Court of Ukraine are infringed. According to the CCU, the Supreme Court of Ukraine and the Supreme Court are the same institution. As a result, judges of the Supreme Court of Ukraine and supreme specialized courts during the last five years receive their salaries while doing nothing since 2016.

What is right: the law will be brought up into line with the decision of the Constitutional Court.

What is wrong:

• judges of the Supreme Court of Ukraine will continue to receive money for doing nothing up to the point when the Parliament amends the law
• if judges of supreme specialized courts are transferred to appeal courts without competitions and in disregard for staffing lists, the number of judges of appeal courts will increase for no good reason, especially in Kyiv.

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