The law on the special status of Donbass was not written in Kiev: interview with Victor Musiacal

Not had time to “cool off” the work of the Constitutional Commission, which President Petro Poroshenko his decree established at the beginning of March 2015, in the Ukrainian information space and political circles again rumors about the next change of the Constitution. According to experts, people believe politicians who are convinced of the need for adjustments of the Basic law, because they do not know their basic constitutional rights. According to the results of the poll in 2015, only 10% of Ukrainians are familiar with the text of the Constitution, and 40% in eyes did not see the Basic law.

At the end of August 2015 the Verkhovna Rada in the first reading adopted amendments to the Constitution on decentralization. According to the President and Prime Minister (Vladimir Groisman concurrently also the head of the Constitutional Commission), the project significantly expands the rights of local authorities. But at the same time, enhances the presidential vertical and gives Donbass special status. The rules of this project has caused so many contradictions in society, that August 31, 2015, the date of its adoption under the walls of Parliament killed four national guardsmen.

About the inner workings of the work of the Constitutional Commission, the difference of Petro Poroshenko from other presidents and the ideal of the Ukrainian Constitution in the second part of the interview to the website “Today” was told by Deputy head of the Constitutional Commission, scientific consultant for legal Affairs of the Razumkov Centre Viktor Musiyaka (first part of the interview – link).

– On the draft amendments to the Constitution on decentralization worked, a Constitutional Commission, or a document written in the AP?

– When talking about this project, so to say. I just know people from the Constitutional Commission, which in the process took the most direct part. I personally do not take a position that is in the project. Hopefully, in the end, we will return to this text. By the way, since February of this year it is already possible to re-submit the draft amendments to the Constitution. On reason, need from the project changes on decentralization to throw claim 18, it is fine to modify and at this session before the summer for approval, as autumn finally taking. Now, it seems, the process of decentralization continues and no changes to the Constitution: the process of unification of territorial communities, the elections in them are… But their updated powers and rights necessary to reinforce the Constitution. Then, let’s do it right. But, apparently, keeping everything in case of a possible situation of implementation of the Minsk agreements a special status, without which Putin’s elections in the territories meaningless.

Even a cursory analysis of the norms of the decentralization project represents a significant extension of the powers of the President.

There is no doubt. Such opportunities are laid where “thin”, where “thick”. Take the prefects, who are appointed by the President. Prefect in the Executive branch, but look at how prescribed its powers, moreover, can stop the decisions of local governments… And there is another article 140, which gives the President the authority to terminate the powers of local authorities (if they start to take unconstitutional decisions) and appoint a “provisional government Plenipotentiary”. I then asked the Constitutional Commission, what is this “fruit”? At least pointed out that its powers are determined by law. It turns out that he is appointed by the President temporarily (clearly define the time of execution of their powers difficult) directs the Executive bodies of local self-government. It’s clear that all of this can lead to the usurpation of power in the hands of the President. But asked is all with good intentions.

– Possible separatist actions of local authorities…

Yes. In this project there is no concept of “community”. “Community” – it turns out, a territory without people. So many years have spend too much time on this topic, tens of millions of euros spent by our European colleagues, helping to develop an appropriate concept. Polish gminas studied here, went to our representatives. Gmina in Poland our community is and the territory, and people, all together. And then gmina in Poland is a legal entity. And we have an area painted, and then separately referred to the inhabitants of the community who live on site. There are many other provisions that simply require you again return to them. The draft amendments to the Constitution on decentralization can bring to mind separately and again be put to the Parliament and to take.

– History repeats: every Ukrainian President, came to power, trying to rewrite the Constitution.

– Incumbent is less affected by the environment. He knows what he wants and he is able to formulate suggestions to the text of the Basic Law.

– That is, he wants to change the Constitution?

– I think that these changes are largely the product of his reflections on what should be the Basic law. The developers are doing as he wants, and not, as at other presidents: the developers have made, show it to the President and convince him that it should be.

– You said that our succumbed to the bait of the necessity of changing the Constitution. However, clause 18 of the transitional provisions of the decentralization project, which sends us to the law on the special status of Donbass, in fact, gives the Donbass powers to Federal education. Here decentralization and does not smell.

– By this us decline. For example, the German Bavaria as private land may enter into contracts with various government entities in other countries. But Germany is a Federal Republic. And in terms of a unitary state, which is Ukraine, such an approach is unacceptable and impossible. Clause 18 of the draft transitional Constitution says that “the peculiarities of local government in certain districts of Donetsk and Lugansk regions are defined by a separate law” must be the relevant provision in the text of the Constitution in the section on local government that may be or “special status” or “local government”, and not only regions, but also regions. I’m not talking about the content of the law on local self-government in certain districts of Donetsk and Lugansk regions. There are not even elements of federalism and confederalism. When, for example, says that they can create their bodies of militia, Prosecutor’s office. Is there any wild item. In light of the fact that the draft amendments to the Constitution in terms of decentralization, the President was provided the authority to suspend decisions of local authorities and to dismiss them, the law on the special status it is written that the powers of the local authorities of these private areas can’t be stopped. Right in the law it is written: they can do anything unconstitutional, but to stop their powers impossible. Find at least one Ukrainian law adopted by the VR, which would be written: “Ukraine is committed…”. And this law is so written. There must be: “the state shall…”, or “the state shall…”. If you carefully analyze the text of the law, it is obvious that it was written not in Kiev. A BP is adopted, and is now trying to sanctify it all by the Constitution.

– With regard to the draft amendments to the Constitution on the part of justice. A year ago, Parliament adopted its second reading, the President has signed, everyone said, now just begin to live anew, it is a victory. But something we don’t see much change in the judiciary.

– People want to see rapid change, especially when it comes to the judicial system. This is the last frontier where people can protect their violated rights. Moreover, the courts must defend the rights of people. And what happens? I, among others, on the Constitutional Commission did not vote for this project. There are a number of provisions that I think are unacceptable, even unconstitutional from the point of view of the internal structure of the Constitution. For example, when it comes to the protection of the rights. If article 55 of the last edition said that everyone is free to choose the defender of their rights in court, now says that it can only be lawyers. Is that not a restriction of rights? And article 22 of the Constitution says that the adoption of new laws cannot limit rights and freedoms. The sub-group of the Constitutional Commission on human rights boutkevitch (Volodymyr Butkevych, judge of the ECHR retired – Ed.) was completely dissatisfied with the provision about attorneys. I’m not saying that it was a kind of sabotage against the principles of functioning of the judiciary, when removed from the Constitution the principle of legality. Wrote “in accordance with the rule of law…”. It is not a harmless thing and not just some legal case. By the way, after making changes in the Constitution VCXO figured out how the judges understand the principle of “rule of law”: one hundred judges of appellate courts only one judge clearly answered that question. Took the COP the authority to interpret laws, but gave the Supreme court this authority. The decision that he makes in specific cases and interpretations of laws is mandatory, not only for the courts but to all organs of state power and local self-government. I offered this background to eliminate the Parliament, if not laws, and their interpretation will now prevail. The only touchstone on which we can still keep the judiciary is a principle of law. Of course, as a basic element of the rule of law.

– And where in the draft amendments to the Constitution in terms of justice expanded the powers of the President?

– The high Council of justice now – the most important organ. But in the transitional provisions stated that the High Council of justice (formerly the Supreme Council of justice – Ed.) which was created in 2014-2015, will continue its work until April 2019. How it was formed, we know, it is clear that the President’s influence there. And then, the President has the right, for some reason on the transitional provisions, which is not in the text of the Constitution, the transfer of judges. This permission allows you to create the appropriate courts. As Kireeva at the time, was transferred to Tymoshenko was tried. The same think happened with the judge Vovk in the matter of Lutsenko. During this time (which is specified in the transitional provisions – Ed.) can be formed a loyal judiciary. The positive is that now Parliament does not appoint judges indefinitely. And the President does not appoint “judges-five”, he only has the so-called “ceremonial” signing of the decree on the appointment of judges. In fact appoints judges High Council of justice. But what worries me? In accordance with the European recommendations, we created the High Council of justice, composed of 21 people, 11 of whom are judges. We have known the level of confidence in the judiciary, they all say that judges are susceptible to corruption, and created a body where more than half of the judges. This body deals with appointments, transfers, removal from office of judges. It is unlikely that Ukraine had not taken into account the real situation in the judicial system following the recommendations of the Venice Commission.

– Well, Yes, there is a danger that their will to defend their own.

But if we have such a judiciary, how can we give up such power? The more and continues to escalate the negativity in the judiciary. We consistently show that judges have released/let go of the corrupt, a murderer, has canceled a decision, we show how the judges have taken/not taken into custody. Thousands of judges have no claim to their work.

– Show live night meetings…

– Why am I continuing to “jamb” going negative to the judiciary and the process of forming a Mat. And you will remember how you made changes to the Constitution on the part of justice? Initially voted the law on judicial system and status of judges, which seems to have included changes to the Constitution and then the the changes themselves in the Basic law. St.8 of the Constitution establishes the rule, according to which at the time of voting must comply with the laws of the Constitution. Abracadabra, arranged on 2 June 2016, has led to the fact that the law on judicial system and status of judges may at any time be declared unconstitutional. I’m not talking about the fact that the conclusions of the scientific expert and legal Department of the Verkhovna Rada on the bill were negative. But the rules says that in this case, the law in General can not be accepted. I mean that from all sides, this law can be questioned. And on the basis of this law is the formation of a new Mat…

– So the main achievement, according to the politicians – the return of the APU right to be the ultimate truth, which at APU at the time, took Viktor Yanukovych.

– At the time, destroyed APU to Onopenko out. To remove the head of the armed forces of Ukraine, destroyed the court itself. But the current changes in the Constitution and the law nothing is returned. The Supreme court provided the highest specialized courts. In fact, the Supreme court as sarlupe without filling. The real appeal powers of Supreme courts. Was the Collegium of the Supreme court was clear that this is the last highest court.

On 11 April the Parliament failed to adopt a new draft law on the constitutional court. It seems to be a new project involves reloading the COP, because there are still judges who were in favor of Yanukovych carried out the anti-constitutional coup. The concept of constitutional complaints entered, so now every Ukrainian can contact them. The function of interpreting the laws, the COP took. But, then, the law is not so good, since its adoption failed?

– The draft Law the President and the Parliament is endowed with unconstitutional powers to create the tender Commission on selection of candidates for judges of the CCU. The constitutional court, the draft law provides “the rule of the Constitution and protection of the rights and freedoms of man on the territory of Ukraine”. The COP shall review the regulations for their constitutionality only when he is accosted by the relevant actors. Independently of the LCP may not take note of the proceedings on the unconstitutionality of laws and other normative acts. Under such authority it can ensure the supremacy of the Constitution? Limited, Yes, but not at all. The protection of the rights and freedoms of citizens exercised by the General courts. The emergence of “constitutional complaint” does not COP defender of human rights “on the territory of Ukraine”. By the way, the mechanism of implementation of law on “the constitutional complaint” is contrary to the Constitution because the constitutional court is a judicial body and may not provide ways to ensure that the result of the complaint. Conditions for the submission of the constitutional complaint is also questionable from the point of view of their compliance with the Constitution.

Almost all of my suggestions to the draft law on the constitutional court were rejected. Even where there could be elementary, say, just bring in the normal state of the law. Not to mention the fact that the changes in the Constitution and in the law actually made the COP so that the judges will be unable to touch: the COP decides, to consent to the prosecution of his colleague or not. And this is after a history of 2010, the COP is still sitting judges who were in favor of Yanukovych carried out the anti-constitutional coup. Probably more important to have controlled by the COP, than to lead a normal state of functioning.

– Draft amendments to the Constitution on human rights? Meeting of the relevant working group continue?

– Working group on rights and freedoms, headed by Professor Butkevich almost two years ago has completed the work. For the next time on this subject, a Constitutional Commission is not in session. This is an indication that the Constitutional Commission created to ensure the decision on the so-called decentralization, and justice. The rights and freedoms of man probably was the background against which it was possible to show the caring power of the rights and freedoms of the individual.

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