The Constitutional Court of Ukraine considers it necessary to publish a section of the Opinion of the Venice Commission and the Directorate General for Human Rights and Rule of Law of the Council of Europe on the scope of the Decision of the CCU No.13-r/2020
In order to provide reliable information on the Opinion of the Venice Commission and the Directorate General for Human Rights and Rule of Law of the Council of Europe, the Constitutional Court of Ukraine considers it necessary to publish a section of the Opinion on the scope of the CCU Decision No.13-r/2020.
In particular, paragraphs 42-70 of the Opinion are provided below:
42. For the Venice Commission, the operative part of decision no. 13-r/2020 should be interpreted in the light of its reasoning. Any other approach would make the very idea of a “reasoned judgment” superfluous.23 In addition, Article 89 of the Law on the CCU stipulates that the decisions of the CCU should be reasoned. Where the reasoning is lacking or insufficient, the legislature should rely on general constitutional principles and international standards. Where the conclusion is contradictory, it should apply logic.
43. Decision no. 13-r/2020 clearly distinguishes between the situation of judges and other public officials. The CCU discusses at length the special role of judges and the special guarantees for their independence. P. 15 gives support to the existing mechanism of financial declarations by stating that “declaring the income of persons exercising public power is an indisputable requirement in any modern democratic state. There is no doubt that public figures in the state must file a declaration of income”.
44. However, the operative provisions of the decision seem to invalidate the NACP powers in bulk, even though these provisions of the 2014 Law are applicable not only to judges but to other public officials as well. Thus, the operative provisions do not follow logically from the preceding reasons for judgment. The CCU has informed the Commission that it has severed the proceedings, and that another judgment will be issued in time in respect of some other aspects of this issue. Irrespective of what these additional aspects may be, the conclusion of the CCU is supported by some reasoning only in respect of ordinary and constitutional judges. It follows that only the provisions regarding judges need to be amended in order to comply with decision no. 13-r/2020. The powers of the NACP in relation to other public officials should be reinstated.
45. It may appear that decision no. 13-r/2020 requires a complete removal of the NACP from the process of verification of declarations of judges. However, looking more closely at the reasoning of the decision, this is not necessarily what is required. The CCU’s decision contains numerous references to international and European standards, in particular to the case-law of the ECtHR and to the recommendations of the Consultative Council of European Judges (the CCJE). Thus, the CCU decision should be construed in the light of those and other international standards.
46. The United Nations Convention against Corruption (ratified by Ukraine in 2009) encourages States to introduce a duty of public officials to submit asset declarations, which implies an efficient system of verification (audit) of such declarations. 24 At the European level, the Council of Europe Committee of Ministers Recommendation No. R(2000)10 on codes of conducts for public officials, recommends Member States introducing an obligation of public officials to declare, at regular intervals, personal or private interests which are likely to be affected by their official duties (p. 14). The Group of States against Corruption (GRECO) calls for introducing a duty of public officials to declare assets,25 and, more specifically in respect of Ukraine, expressed support to the obligation for judges and members of their families to submit such declarations. 26
47. If the duty of public officials to declare their assets and financial interests is uncontroversial, the question of who should verify these financial declarations is a more complex question: there is no single model as to how the verification is to be organised, whether it should be a unique system for all public officials, or separate systems for different categories of them. What is clear, however, is that there is no requirement under international standards that judges should be submitted to any special regime in this respect.
48. This plurality of models is acknowledged by the CCJE: in its Opinion no. 21 (2018) on the prevention of corruption amongst judges the CCJE insisted that disciplinary proceedings (italics added) should be conducted by a properly composed judicial council or a similar body having a strong judicial component (p. 30). This does not mean, however, that the process of verification of financial declarations of judges should also be in the hands of such bodies. As regards investigative authorities, in para. 50 the CCJE proposes that “it might be necessary to establish specialised investigative bodies and specialised prosecutors to fight corruption among judges”, but it does not express any position about the organisation of bodies which verify the financial declarations.
49. The Venice Commission examined this question in an opinion of 2019 on Armenia, where it held as follows:
27. Two solutions are possible in this respect: either to create a special body within the judiciary responsible for checking financial declarations of judges or to entrust this task to an external body which deals with the declarations of all public officials. The first solution is better for judicial independence but lacks transparency, which may give rise to a corporatist behaviour. […]
28. It is difficult to find a common European standard in these matters. Some documents suggest that only a judicial body should have the power to bring disciplinary cases against judges. Other authorities accept that the verification of the financial statements by the judges may be performed by a body external to the judiciary. […] In the opinion of the Venice Commission, whether to entrust the task of verifying declarations to an external body (dealing with all public officials, including judges), or to a specialised body within the judiciary, depends on the local realities. […]”
50. In the Armenian context, the Venice Commission readily accepted the choice made by the legislature, namely that it is an external body – the Commission for the Prevention of Corruption created by Parliament – which verifies financial declarations of judges and, in the case of irregularities, initiates disciplinary proceedings before the Supreme Judicial Council.
51. Finally, from a comparative perspective, the model where asset declarations of judges are verified by bodies outside of the judiciary may be regarded as dominant in the region. Therefore, whether or not to create a special legal mechanism of verification of declaration of judges is not dictated by international standards, and the previous model – where declarations of judges and other public officials are verified by the same body – is more widespread in the region. That means that the choice of the most appropriate model belongs to the national legislature.
b. From the national constitutional perspective
52. The Constitution of Ukraine is silent on the question of financial declarations of public officials and who should verify them. The CCU based its reasoning on the constitutional principle of judicial independence, claiming that the mechanism of verification of financial declarations by the NACP may be abused to put pressure on the judges. This argument, however, does not lead to the necessity of terminating the currently existing mechanism of verification of declarations, rather to the necessity of ensuring that there are appropriate guarantees against abuse.
53. It is normal and necessary that judges should be governed by special rules as regards the manner in which they are appointed, promoted or dismissed from their positions. The Constitution of Ukraine provides for a special mechanism in this regard, with the High Council of Justice (the HCJ) at its center. However, in their capacity as citizens, judges are subjected to ordinary laws and regulations (on property, town planning, tax, civil status, traffic rules and so on). In their capacity as public officials, they have the obligation to submit a financial declaration. This duty is unrelated to the exercise of the judicial function but follows from the judge’s status as a public official and is indeed an essential guarantee in the eyes of the public that the judicial function – as all other state functions – is exercised by individuals who meet the requirements of integrity. It is therefore an important precondition for ensuring public trust in the judiciary. The Venice Commission has always been wary of rules which exempt judges from the general legal regime and repeatedly warned about the risk of judicial corporatism, cronyism and self-protection amongst judges. It stressed that judges should only enjoy functional immunity, i.e. directly related to the performance of judicial functions. In the Commission’s opinion, there is no compelling justification for setting up a special legal regime for checking the financial declarations of judges. However, when subjecting judges to an obligation to submit financial declarations, the legislature should provide for guarantees against the risk that such an obligation is abused in an attempt to unduly exercise pressure and influence pending cases. But whether or not a risk of such abuses exists largely depends on the powers of this body conducting verifications. As shown above, in the Ukrainian system the NACP has only fact-finding competences; the final decision on the substance of its findings belongs to a court in the framework of administrative or criminal proceedings, or, in the context of disciplinary proceedings, to a body of judicial governance (the HCJ for ordinary judges and the CCU for judges of this court).
54. In this respect, the Venice Commission has noted that some judges of the CCU have alleged to have been subjected to abusive conduct by NACP officers in excess of their powers. However, these allegations refer to abuses which, if proven, would engage the individual responsibility of the relevant NACP officers. These allegations do not justify that the NACP powers as provided by the 2014 Law as such should be removed. Instead, judges should be able to complain about such abuses, and if the existing avenues are insufficient appropriate mechanisms may be designed to tackle this problem – see the following section which proposes several options for such mechanisms.
c. How to reform the mechanism of control of financial declarations of judges? Possible role for the HQCJ
55. As demonstrated in the previous paragraphs, the reasoning of the CCU far from clear. As a result, the legislature enjoys a large margin of appreciation as to how to implement this decision. The main concern of the CCU is that the powers of the NACP – defined in the decision as an “executive body” – may represent a danger for the judges’ independence when used for ulterior purposes. Thus, the Verkhovna Rada should reform the mechanism of verification of declarations by judges in order to reduce (if not exclude completely) this risk.
56. There are several ways how to proceed.
The legislature may consider:
• increasing the independence of the NACP and improving public control over this body exercised by the Public Council (for more details on this see paragraph 58 below);
• reviewing some of the broadly formulated investigative powers of the NACP;
• giving a supervisory role over the NACP to a judicial body; or
• a combination of the above.
57. First of all, the independence of the NACP from the executive and legislative branches should be enhanced as recommended by GRECO, which prompted to develop “appropriate measures, including of a regulatory nature to enhance the independence and impartiality of the National Agency on Corruption Prevention (NACP) decision-making structures; and (ii) lay down detailed, clear and objective rules governing NACP’s work, in particular, its investigative tasks, in order to fully secure transparency and accountability in practice of NACP action”. This recommendation is still relevant – see the Compliance Report of 2020 by GRECO.
58. The Venice Commission notes that the 2014 Law, as amended, already contains provisions prohibiting any interference with the activities of the NACP by state officials, political parties, etc. The NACP is supervised by a Public Council composed of representatives of various anticorruption NGOs. The Public Council gives opinions on the annual reports of the NACP. An external evaluation of the activities of the NACP is conducted every two years by an Independent Performance Review Commission, the members of which are also in part proposed by international donors. The law contains provisions ensuring the transparency of the work of the NACP for the general public. There are further ways of making the instruments of public control over the activities of the NACP more efficient or increasing the independence and impartiality of the NACP in practice, as stressed in the Compliance Report of 2020 by GRECO
59. An additional avenue would be to identify powers of the NACP which are particularly prone to abuse. The NACP is not a law-enforcement agency and therefore cannot conduct searches, seizures, wiretapping, cannot compel individuals to testify, etc. However, the catalogue of its fact finding powers is quite extensive (see Articles 11 and 12 of the 2014 Law). Some of these powers could be formulated more precisely and narrowly – or special exceptions and procedural safeguards in respect of the use of certain powers vis-à-vis judges can be envisaged. That being said, this recommendation should not be interpreted as inviting the Ukrainian authorities to reduce investigative powers of the NACP: these powers should be sufficient to enable the NACP to collect information and verify declarations of public officials.
60. Finally, decision no. 13-r/2020 may be construed as requiring to give judicial bodies a role in the process of verification of declarations of their peers. The Venice Commission does not consider that every procedural step of the NACP in the process of verification of declarations of judges should be authorised by a court or another judicial body. That does not follow from any applicable (international) standard as outlined above and it would paralyse the work of the NACP which is clearly unwarranted.
61. By contrast, some elements of ex post supervision of the activities of the NACP in respect of judges could be introduced into the law. The Venice Commission emphasises that supervision of the fact-finding activities of the NACP in respect of judges is not required by international standards, and there are strong doubts as to whether it is required by the Ukrainian Constitution. However, the legislature could consider introducing elements of external supervision of the activities of the NACP in an attempt to accommodate decision no. 13-r/2020.
62. Such ex post supervision can take different forms. First of all, a “complaints mechanism” can be created, enabling judges to complain about abusive actions of the NCAP before a judicial authority. The power to examine complaints could be assigned to a designated court. But it is necessary to ensure that the integrity of those judges who examine such complaints is beyond reproach. The Venice Commission understands that entrusting this function to a court which has not been reformed and which does not therefore enjoy public trust as regards the integrity and independence of its judges may be politically problematic, so the legislature enjoys a considerable leeway in deciding which court should be allocated these functions.
63. Another option would be to require the NCAP to submit periodic reports to a judicial body. Such reports will not involve approving each individual procedure against a judge but rather contain a more generalised information about measures taken by the NACP during a given period in connection with the verification of declarations of judges.
64. The power to review such reports may be allocated to an appropriate body of judicial governance. The central body of judicial governance in Ukraine is the High Council of Justice (HCJ), regulated by the Constitution and the Law on the HCJ. The HCJ has been reorganized in 2016. It appears that the process of reform of this body is not completed and there are still serious concerns about the integrity of some members of the HCJ. In addition, the HCJ is a body which takes final decisions on dismissing a judge and may therefore not be the most suitable institution to examine actions of the NACP in the process of gathering of evidence.
65. Another body of judicial governance is the High Qualification Commission of Judges – the HQCJ. As is known, the Ukrainian authorities made several attempts to reform the HQCJ. In 2019 the Verkhovna Rada adopted Law No. 193-IX, which entered into force on 7 November 2019. On the same date the “old” HQCJ has been dissolved. By decision no. 4-p/2020 of 11 March 2020 the CCU invalidated Law no. 193-IX, and the HQCJ has not been recomposed since then. Without a “new” HQCJ, all judicial appointments were put on hold and some 2000 judicial posts remain vacant. In its opinion CDL-AD (2020) 022 the Venice Commission urged the rapid re-establishment of the HQCJ.
66. On 22 June 2020 the President of Ukraine introduced Draft Law no. 3711 aimed at resolving the crisis around the HQCJ. The thrust of Draft Law no. 3711 was to re-establish the HQCJ in order to relaunch the selection procedure of first and second instances judges. This bill was analysed by the VC in the most recent opinion on Ukraine (hereinafter the October 2020 Opinion).
67. In principle, if the HQCJ is re-established, and if it is composed of professional and independent members, in line with the recommendations of the October 2020 Opinion, this body could assume the function of reviewing the NACP reports in relation to judges. The Venice Commission recalls that the HQCJ has already been given a very similar function: under Article 62 of the law on the Organisation of Courts and the Status of Judges, 43 the HQCJ is supposed to deal with the judges’ “declarations of integrity”. The HQCJ has inspectors (see Article 103) who may verify whether the assets and spending of judges corresponds to the levels of his or her declared income. So, giving the HQCJ a supervisory function vis-à-vis the NACP is coherent with the system of accountability in the judiciary.
68. Finally, the Venice Commission observes that the HQCJ has no competency to deal with the judges of the CCU. Therefore, the legislature may provide for a different mechanism of supervision of activities of the NACP, insofar as they aim at the verification of the financial declaration of judges of the CCU. That being said, in the light of the unresolved question of conflict of interest in the context of decision no. 13-r/2020, the Venice Commission recommends not to give the CCU the power to hear the reports of the NACP, but to consider other appropriate solutions.
69. In sum, the most appropriate solution would be to entrust the supervision function in respect of ordinary judges to the HQCJ. This recommendation implies that it is a matter of urgency that the HQCJ be re-composed under the new rules, which ensure the appointment of sufficiently independent, honest and professional members to the HQCJ. Before such law on the HQCJ is enacted, a transitional solution may be provided in the 2014 Law.
70. The Venice Commission stresses that the development of appropriate responses to decision no. 13-r/2020 is primarily the prerogative of the Ukrainian legislature, which should decide which mechanism (a complaints mechanism or a reporting mechanism, or a combination of both) is the most appropriate in the current situation.
The Constitutional Court of Ukraine accepts critical remarks on the adopted Decision and will take them into account in the future. At the same time, the Venice Commission and the Directorate General for Human Rights and Rule of Law of the Council of Europe state in paragraphs 72 and 74 as follows:
72. The Venice Commission stresses that the fight against corruption is an essential element in a state governed by the Rule of law, but so is respect for the Constitution and for constitutional justice. They go hand in hand. Parliament and the Executive must respect the role of the Constitutional Court as gatekeeper of the Constitution and need to implement its decisions. In turn, a Constitutional Court, like any other state institution and court, on the one hand deserves institutional respect but, on the other hand, must respect its own procedures and for the sake of constitutional stability and legal certainty, must issue decisions that are generally consistent with its own case-law. Even more importantly, a constitutional court must decide within the parameters of its legal authority and jurisdiction.
74. Nonetheless, the constitutional role of the Constitutional Court must be respected, and the Verkhovna Rada should implement the decision by interpreting it in light of the constitutional foundations of the country and applicable international standards, preserving public interests such as the fight against corruption, including in the judiciary. In particular, it is important to keep the duty of public officials (including judges of ordinary courts and of the Constitutional Court) to submit financial declarations, to have an efficient mechanism of verifying such declarations, and to provide in the law for appropriate sanctions for those public officials – including judges and prosecutors – who knowingly submit false declarations/fail to submit declarations.
