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Legal news in Ukraine: new decisions of the Constitutional Court, the qualification of judges, the decision of the Supreme Court in the case of obtaining alimony, the coming into force of the new law, the ending of the declaration of income for 2017

28.04.2018 / 11:00
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Legal news in Ukraine: new decisions of the Constitutional Court, the qualification of judges, the decision of the Supreme Court in the case of obtaining alimony, the coming into force of the new law, the ending of the declaration of income for 2017

Constitutional Court found unconstitutional the norm of Article 216 of the Criminal Procedural Code

Constitutional Court of Ukraine ruled on a case under the constitutional petition of the Ukrainian Parliament Commissioner for Human Rights on the compliance of part 6 of Article 216 of the Criminal Procedural Code of Ukraine with the Constitution of Ukraine.

The decision concerns the regulation of the organization and activities of the bodies of pre-trial investigation of crimes committed on the territory or in the premises of the bodies of the State Criminal-Enforcement Service of Ukraine.

Constitutional Court of Ukraine in its decision concluded that the state, while fulfilling its primary responsibility - the establishment and maintenance of human rights and freedoms - should not only refrain from violations or disproportionate restrictions of human rights and freedoms, but also take appropriate measures to ensure their possibility full implementation by anyone under its jurisdiction.

In its decision, the Constitutional Court of Ukraine took into account the practice of the European Court of Human Rights. Еhe Constitutional Court of Ukraine considers that the hierarchical subordination of the investigative bodies of the Service to the highest officials of the Ministry of Justice is not capable of ensuring compliance with the constitutional requirements regarding the independence of the official investigation of crimes committed against persons serving in penitentiary institutions and investigative detention facilities. Such hierarchical dependence offset the procedural guarantees of the independence of the investigator, that is, it will be somewhat biased in the conduct of pre-trial investigation of crimes committed against persons serving in penitentiary institutions or investigative detention facilities.

Constitutional Court of Ukraine notes that the established  in part 6 of Article 216 of the Code, the investigation of crimes committed on the territory or in the premises of the Service, in conjunction with the relevant normative regulation regarding the operation of investigative bodies of the Service, is not capable of ensuring an effective investigation of violations of constitutional human rights to life and respect to her dignity, which makes it impossible for the state to fulfill its main constitutional duty - to establish and secure human rights and freedoms.

Consequently, the Constitutional Court of Ukraine has decided to declare that it does not conform to the Constitution of Ukraine (unconstitutional), part 6 of Article 216 of the Criminal Procedure Code of Ukraine, according to which "investigating bodies of the State Criminal-Enforcement Service of Ukraine carry out pre-trial investigation of crimes committed on the territory or in premises of the State Criminal Execution Service of Ukraine".

Part 6 of Article 216 of the Criminal Procedural Code of Ukraine, declared unconstitutional, shall cease to be valid three months after the date of adoption by the Constitutional Court of Ukraine of this decision.

The decision of the Constitutional Court of Ukraine is binding, final and non-objectionable.

The Law "On All-Ukrainian Referendum" was declared unconstitutional

Constitutional Court of Ukraine upheld the decision in the case on the constitutional petition of 57 people's deputies of Ukraine on the compliance of the Constitution of the Law "On All-Ukrainian Referendum".

By this decision, the Constitutional Court of Ukraine declared the Law unconstitutional both in violation of the procedure for its consideration and approval, and in view of its content. On the basis of establishing the illegitimacy of the purpose of the Law and the non-compliance of its provisions with the requirements of the Constitution of Ukraine, the Constitutional Court came to the conclusion that the Law completely contradicts the Basic Law of the State.

Constitutional Court of Ukraine considers that the systematic, gross violation of the constitutional procedure for reviewing and adopting a normative act, as well as the significant impact of this violation on the final result of its adoption, is the basis for the recognition of this act unconstitutional.

Constitutional Court of Ukraine notes that the violations of the constitutional procedure for reviewing and adopting the Law are sufficient to conclude that the significant impact of the violation on the final result of its adoption.

The decision also states that the Verkhovna Rada of Ukraine, at the level of the ordinary law, regulated those relations that are the subject of the regulation of the Constitution of Ukraine. In the Court's opinion, the legislator's intention, embodied in the Law, as well as the legislative measures he chooses, are not in line with the Constitution of Ukraine.

The Constitutional Court of Ukraine points out that the constitutional procedures for amending the Constitution of Ukraine provide for mandatory participation in this process of the parliament. The bill on amendments to chapters I, III and XIII of the Constitution of Ukraine must be approved at an all-Ukrainian referendum, however, such a referendum shall be appointed by the President only after the bill has been approved by at least two thirds of the constitutional composition of the Verkhovna Rada of Ukraine. The Constitution of Ukraine does not provide for another procedure for amending the Constitution of Ukraine.

According to the Decision, after passing the Law, the Verkhovna Rada of Ukraine went beyond its constitutional powers, which is not in line with the rule of law, in particular, with the provision that "the Constitution of Ukraine has the highest legal force. Laws and other normative-legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it "(part two of Article 8 of the Constitution of Ukraine).

In addition, the Decision states that the authority to verify the constitutionality of issues that are submitted to an all-Ukrainian referendum is assigned by the Law to the Central Election Commission. This provision of the Law substantially limits the powers of the Constitutional Court of Ukraine regarding the implementation of preventive constitutional control provided for by the Constitution of Ukraine, which jeopardizes the rights and freedoms of man and citizen, the independence and territorial integrity of Ukraine.

Therefore, the Constitutional Court of Ukraine considers unconstitutional the Law of Ukraine "On All-Ukrainian Referendum" No. 5475-VI and it expires from the date of adoption of this Decision by the Constitutional Court of Ukraine.

The decision of the Constitutional Court of Ukraine is binding, final and non-objectionable.

431 judges passed qualification assessment

According to the results of 12 days of interviewing the first thousand of judges, 431 judges (75% of judges) comply with the occupied position, 16 Themis representatives were recognized as those who have not confirmed the ability to administer justice. Regarding 103 judges, a break was announced, in particular due to the improperly drawn Public Integrity Council opinions.

Interviews with judges of the first thousand are being held in the HQCJ panels all day long in the online mode three times a week. According to the results of interviews that were taking place from 23 March to 20 April this year, 578 local and appellate court judges have been interviewed. During these days, the following decisions were delivered:

431 judges have confirmed the ability to administer justice, meaning that these judges were recognized as being in compliance with the occupied position;

16 judges were recognized as not being in compliance with the occupied position;

the break was announced with regard to 103 judges;

the qualification assessment was suspended in relation to 23 judges;

the assessment was terminated in relation to 2 judges;

the consideration of the issue was postponed in relation to 3 judges.

Only those judges who successfully passed the two-level examination – anonymous written tests and practical assignment on the ability to draft court decisions – were admitted to be interviewed. 31 judges did not pass the exam, those judges were not admitted to be interviewed accordingly, and are subject to dismissal.

It should be emphasized that the Commission has not received any opinions or information from the Public Integrity Council regarding 14 of 16 judges who were recognized as not being in compliance with the occupied position. Judges who delivered judgments on Maidan cases and were unable to explain the source of their property and had other inconsistencies in their declarations are among them. Instead, some information about judges appears on the PIC website after the judge has already been interviewed.

A break was announced with respect to 103 judges due to the Commission’s queries regarding the judge’s dossier, as well as the Public Integrity Council opinions, which were submitted to the Commission without due formalization, in particular, without signatures of the PIC members who voted for the adoption of those opinions. The PIC has been granted additional 10 days for elimination of the deficiencies so that the HQCJ will be able to take them into consideration. The decision regarding those judges will be taken later in accordance with the assessment schedule. The same as with regard to 23 judges, in respect of whom the assessment was suspended due to the open disciplinary proceedings in the High Council of Justice, as well as the existing grounds for judge’s disciplinary liability. Thus, with regard to 25% of judges, the issue of their further career remains open.

“The task of assessing all judges of the country is truly challenging, but absolutely realistic. All assessment procedures are organized in a clear and coherent manner, in accordance with the law and international standards. Procedure schedules are not a secret – judges who are subject to the assessment procedure, as well as the PIC are able to organize their activities in a way to adhere to them. In my opinion, the best way for the PIC to promote the renewal of the judicial corps is to come back to execution of their direct duties stipulated by law. Despite the significant number of judges who have not confirmed the compliance with the occupied position without respective PIC opinions, this institution is important for the assessment purposes”, said Mr. Mykhailo Makarchuk, the HQCJ member.

The first thousand of judges who undergo the qualification assessment are in the stage of public interviews that are being broadcast on the HQCJ’s YouTube Channel. This work was preceded by launching in November 2017 psychological testing and interviews with psychologists, the two-level exam, and the detailed study of candidates’ dossiers, which comprises materials obtained by the Commission from numerous governmental bodies and agencies, including the National Anti-Corruption Bureau of Ukraine and the National Agency on Corruption Prevention, the Prosecutor General’s Office of Ukraine and the Security Service of Ukraine.

We are recalling that since June 2016 2,500 judges have resigned, in particular, because of reluctance to undergo the qualification assessment. And this is 31% of the total number of judges of the country.

Supreme Court made a conclusion on the recovery of alimony from the heirs

A person appealed to the court in the interests of the child to recognize the title to the inherited property and to collect the arrears for maintenance. The plaintiff noted that the father of her daughter was killed in the ATO area and requested that the defendants be recovered from the defendants for 11,054.13 UAH, since at the time of death the deceased had an unfulfilled obligation to pay alimony, which became part of the inheritance and to be paid by the heirs in even parts.

The court of first instance satisfied the claim and noted that since the deceased had remained unfulfilled in the form of arrears for maintenance, which is part of the inheritance, based on the equality of the heirs' shares, the debt is subject to recovery from each of the defendants on the basis of Article 1218 of the Civil Code of Ukraine.

However, an appellate court overturned the decision of first instance regarding the recovery of arrears of maintenance and rejected this part of the claims. An appellate court noted that the obligation to pay alimony for the maintenance of children is terminated by the death of the debtor and, therefore, is not part of the inheritance after his death and is not subject to success by the heirs.

However, the Supreme Court quashed the courts' decision to resolve claims for recovery of arrears of alimony, and referred the case to this court for a new consideration by the court of first instance.

In the case of the death of the payer of alimony, his heirs, due to the existing assets of the hereditary mass, are obliged to pay off the arrears of maintenance on the child.

The heirs are obliged to satisfy the creditor's claims in full, but within the value of the property inherited; each of the heirs must meet the requirements of the creditor personally, in the amount that corresponds to his share in the inheritance; the creditor's claims are to be met by the heirs through a one-time payment, unless otherwise agreed by the agreement between the heirs and the creditor.

The Supreme Court drew attention to the fact that the subject matter of the dispute in this case is the recovery of the debtor's debt, which he had in life as an arrears of alimony, and not his duty to pay alimony.

Therefore, the verdict was the conclusion of the court of first instance regarding the existence of grounds for satisfying the claims for recovery from defendants, who are the heirs of the deceased's property, and the arrears of alimony. However, the court was required to determine the size of each inheritor heir and to check that the size of their share of the value of inherited inheritance by each of the heirs corresponds to the ability of each of the respondents to satisfy the creditor's lump sum payment requirements.

The law, which allows local authorities to restrict the sale of alcohol, came into force

On April 25, the Law of Ukraine No. 2376-VIII "On Amendments to Certain Legislative Acts of Ukraine regarding the granting of authority to local governments to impose restrictions on the sale of beer (except non-alcoholic beverages), alcoholic, low-alcohol beverages and table wine" came into force.

The law empowers local governments to prohibit the sale of beer (except soft drinks), alcoholic beverages, wine at certain times of the day within the respective administrative territory.

The law establishes administrative responsibility for trade in beer (except non-alcoholic), alcoholic, low alcohol beverages, wines prohibited by the decision of the relevant local government body during the day - a fine of thirty to one hundred tax-free minimum incomes.

The relevant changes have been made to the Code of Ukraine on Administrative Offenses and the Laws of Ukraine "On State Regulation of Production and Circulation of Ethyl, Cognac and Fruit Alcohol, Alcoholic Beverages and Tobacco Products," "On Local Self-Government in Ukraine".

The declaration of income campaign ends

The declaration of income campaign continues until May 2, 2018. Therefore, citizens who received in 2017 non-taxable income should hurry with the submission of declarations.

In accordance with the norms of the Tax Code of Ukraine, citizens are obliged to declare their income and persons who carry out their independent professional activities must file a declaration of income received last year. In this declaration, citizens reflect the amount of income received and determine the tax liability on income tax and military fee.

The tax return on property and income is provided by taxpayers at the place of their tax address in one of the following ways:

personally or authorized by this person;

sent by post with a statement of delivery and description of the attachment;

electronic communication means in electronic form in accordance with the requirements of laws on electronic document circulation and electronic digital signature.

In the case of sending a tax return by post, the taxpayer is obliged to make such departure no later than five days before the expiration of the deadline for submission of the tax return, and when submitting the tax return in electronic form, - no later than the end of the last hour of the day in which this deadline expires.

Recall that a tax return is filed by citizens before May 2, 2018. For citizens who are entitled to a tax discount - until December 31, 2018. If by the end of this year a citizen has not taken advantage of the right to charge a tax credit for the consequences of 2017, such a right for subsequent tax years will not be postponed.

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