Lawmaking under the Microscope

The recent open report by the Government declared many already adopted changes and anticipated ones. The laws submitted by the Cabinet of Ministers are asked to be considered and supported by the Ukrainian Parliament. Meanwhile, by way of tradition we ask lawyers to impose critical views on lawmaking activity.

The new Act of Ukraine On the National Police of 2 July 2015, No.580-VIII will come into force on 6 November 2015. What pivotal changes has it determined for this body?

 

Volga Sheyko,  associate,  Asters

There is a lot of discussion, and not only among lawyers, about the innovations implemented by the On the National Police Act of Ukraine. In my opinion, police reform is not declarative. The adopted Act is fundamentally new for Ukraine and is really aimed at not only changing the name of the law-enforcement authority. According to the Act the role of the new police should be altered from being a punitive body to an authority which is capable not only of protecting the rights of citizens, but to provide services to Ukrainians.

The Act contains a detailed list of rights and responsibilities of Ukrainian police officers. As to other significant innovations, I would like to mention that in accordance with the new Act the appointment of top officials in the new police force has to be approved by public figures and human rights defenders. In the past representatives of civil society were sometimes included into selection committees, but it was only an experiment and they were not legally empowered to have influence on appointments. Securing the participation of public figures and human rights defenders in the appointment process is an important step towards increasing the openness and transparency of the police. However, the legal mechanism of operation of selection committees should be strictly regulated by the relevant regulations, because it is vitally important to avoid any political influence on the appointments and dismissals in the police in order to live according to the Dura lex est lex principle.

What are the key legal consequences of the Act of Ukraine On Changes to Some Legislative Acts of Ukraine Regarding Strengthening Transparency in the Sphere of Relations of Property aimed at Prevention of Corruption of 14 July, No.597-VIII?

 

Mariana  Marchuk,  counsel, Baker &  McKenzie (Kiev)

The Act of Ukraine No.597-VIII abolishes restrictions on access to information about owners of real estate and vehicles, thus facilitating public control over the assets and lifestyle of public officials and politicians. It also allows any interested person (the general public, journalists, divorced spouses, lawyers, collectors, etc.) to determine the assets of a relevant person and to use that information for a variety of legitimate purposes (seeking alimony, debt recovery, uncovering corrupt officials, etc.).

In particular, the Act allows searching the State Register of Immovable Property Rights and the State Land Cadaster of Ukraine by the address of the real estate object and also by the name of the owner. The Act establishes administrative liability for providing misleading information necessary to identify the enquirer and allows the tracking of those who accessed information about a motor vehicle or real estate object.  Such information can be requested by the owner of the assets in question.  Information from the registries will be delivered either via electronic means (subject to identification through e-signature or other means), which should expedite its receipt, or in paper form (via filing an application with the responsible agency).

The Act is a significant leap forward in promoting transparency and public surveillance in the area of prevention/combating corruption and a useful tool to ensure better accountability in general.

How do you evaluate the initiatives of the Act of Ukraine On Changes to Some Legislative Acts of Ukraine regarding Improvement of the System of Guaranteeing the Deposits of Physical Persons and Withdrawal of Insolvent Banks from the Market of 16 July 2015, No.629-VIII?

 

Anton  Korobeynikov,  counsel, Sayenko Kharenko

The amendments introduced by the Act are aimed at expanding and detailing the powers of the National Bank of Ukraine (the NBU) and the Fund for Guaranteeing Deposits of Individuals (the Fund) in the course of dealing with insolvent banks, as well as facilitating the Fund’s activities in the course of removal of insolvent banks from the market. In particular, the amendments introduce more rigorous requirements for a bank to be recognized by the NBU as insolvent by lowering the threshold for the amount of obligations on which the bank needs to default to be recognized as insolvent and adding several new grounds for insolvency. The Fund starts its monitoring and control activities (including valuation of the bank’s assets) at the stage of a bank being recognized as problematic by the NBU. At this stage, the Fund obtains broad monitoring functions over the bank’s transactions (e.g., its officers have access to all systems and information within the bank, are entitled to demand that the bank’s officers remedy breaches of Banking Acts and are allowed to approach the bank’s clients with requests for information). In respect of the later stage of a bank’s insolvency, the Fund has been granted additional instruments for dealing with a bank and its assets, such as sale of an insolvent bank to a joint group of investors, consolidating the assets of several insolvent banks for the purposes of further sale, etc. Finally, the NBU and the Fund have been granted full immunity from interim measures in the course of any court disputes with third parties, expected to facilitate bank insolvency procedures.

How would you assess the Draft Act On Changes to Some Legislative Acts of Ukraine on Initiating Proper Reform of the Judicial Branch of 21 May 2015, No.2932 (submitted by MP Serhiy Vlasenko) in the part on formation of the unified court practice and establishing supremacy of the legal positions of the Supreme Court of Ukraine (in case of adoption of this Draft)?

 

Iryna Kobets  lawyer, LCF Law Group

First of all, reforming legislation has to be done professionally and focused on ensuring international principles, inter alia, the principle of rule of law. 

However, the Draft Act On Changes to Some Legislative Acts of Ukraine on Initiating Proper Reform of the Judicial Branch, No.2932, does not, in our opinion, correspond with these principles and has to be assessed critically.

Ensuring consistency of court practice will not nullify the principle of legal certainty as an integral part of the rule of law.

Firstly, it is notable that the Draft Act has, without a reasonable basis, significantly increased the term for submission to the Supreme Court of an application regarding non-compliance of a court ruling to a legal conclusion. Such application may be submitted over a period of six months from the date after adoption of a new legal conclusion by the Supreme Court in the future, but not later than 3 years from when the judgment that was appealed was passed.

 How can we talk about the principle of legal certainty if final judgment of the cassation court can be reexamined and annulled in the course of 3 years from its adoption only on the basis of change in court practice?

In addition, the Draft Act envisages that the resolution of the Supreme Court can be revised if the highest court instance of Ukraine will change the approach to the application of a legal norm in the future. Meanwhile, the term and procedure of such revisions were not specified.

The right to a fair trial would become like an illusion in this case, since the whole court proceeding, which was terminated upon the passing final judgment by the Supreme Court would be annulled and the judgment revised only on the basis of another viewpoint on the application of a legal norm.

Pursuant to Article 58 of the Constitution of Ukraine, the Acts and other legal acts do not have retroactive effect. However, in practice the bill proposes to introduce the retroactive effect of court practice.

The Draft Act On Amending the Civil Procedure Code of Ukraine regarding Limitation of Possibilities to Abuse Procedural Rights, No.2459 was registered in the Ukrainian Parliament on 23 March 2015. It addresses frequent appeals against court decisions that entail unlimited procrastination of terms in the consideration of civil cases. What initiatives would you suggest to prevent such abuse of procedural rights?

 

Oleg Malinevskiy,  partner, FCLEX Law Firm

It should be noted that the changes proposed in Draft Act No.2459 are limited, and essentially do not solve the problem of artificial procrastination in a case because they do not exclude the duty of the trial court to send the originals of all case materials to the appellate court: (a) in case of the initial appeal against the decision on initiation of the proceedings by any party (unreasonable procrastination in proceedings by an average of two to three months); (b) in case of a second appeal against the same decision by the other party (the original appeal period is multiplied by the number of potential appellants).

Therefore, to find a legislative solution to the aforesaid problem it is necessary to resort to more drastic steps, in particular: 1) to eliminate any possibility of submitting appeals against decisions on institution of proceedings on any grounds (that way the issue is resolved in economic and administrative processes, because the correctness of choice of court can be properly assessed when reviewing the final decision in the case); 2) to formalize and to strengthen the disciplinary liability of judges for failing to comply with the established terms for consideration of the case and for  consideration of the case in violation of rules regarding the court venue; 3) to establish administrative liability of the parties (or their representatives) for abuse of their procedural rights (for example, by adding Article 185-3 of the Administrative Code “Display of contempt of court”) directly specifying such form of abuse as the filing of deliberately unfounded appeal (cassation) complaints; 4) to establish a monopoly of licensed lawyers to represent citizens and legal entities in civil courts, which can, in view of the high disciplinary standards of the legal profession, prevent any cases of procedural abuses by the parties, in particular by means of filing unfounded complaints; 5) to increase the amount of court fee for filing appeals against the decision of the trial court and to improve the mechanism for compensation of court costs and expenses (unification of documents for expense verification, abolition of any limits for compensation of lawyer fee, etc.), by making any procrastination in the proceedings an economically disadvantageous deal.

The Draft Act On the Services and Service Centers of the Ministry of Internal Affairs of Ukraine was adopted in the first reading on 14 July 2015. How should improvement of quality, efficiency and objectivity in rendering of services happen in accordance with the Draft Act?

 

Vitaliy Yankovych,  senior associate,  Alexandrov & Partners

Shortly before the summer vacation, the Verkhovna Rada at the second attempt adopted Draft Act No.2567 On the Services and Service Centers of the Ministry of Internal Affairs of Ukraine, which was supported by 241 MPs in the first reading.

It is stated in the Draft Act that it shall be valid until 1 January 2018. Until that time, the provision of services, including those envisaged by the Draft Act, must be delegated to local self-government bodies.

However, the legal nature of the Draft Act does not justify the objective of its adoption.

Thus, the Draft Act suggests introducing new services, which have not existed before (for example, the issuance of statements on the legal status of vehicles or weapons, statements on the issue of a driving license), and services, which have been recently cancelled in view of their corruption (such as inspection of vehicles).

In addition, the Draft retains the possibility to drag out consideration of the application by requesting clarifications or additional documents that contradict the principle of free access to the services by the citizens of Ukraine, which envisages prohibition to demand that an applicant provide the information available to the state authorities of Ukraine.

Moreover, negative feedback was given as regards the Draft Act by the Main Scientific and Expert Administration of the Executive Office of the Verkhovna Rada and the Parliamentary Committee on Legal Regulation of Law-enforcement Activities.

We consider it would be more expedient to develop such new directions as the iGov project by partial or full provision of online services.