Andrey Derkach’s Appeal to the Prime Minister

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MEMBER OF PARLIAMENT OF UKRAINE

Interfactional Parliamentary Association

“For the Protection of Violated Rights of Citizens

and Against Political Repression

“Forbidden to Forbid”


To the Prime Minister of Ukraine

A.P. Yatseniuk

Dear Arseniy Petrovich!

In the course of my parliamentary duty, I have become aware of the criminal offenses committed by the particular officials of the Ministry of Justice of Ukraine. Particularly, I was notified of the fact that on October 12, 2015, the letter #11.0.2 / 1777 of the Ministry of Justice of Ukraine signed by the Deputy Minister and Chief of Staff O. P. Ivanchenko was published. It contained the clarification of legislation on the application of the provisions of the Lustration Act.

The above letter was forwarded to the address of the State Fiscal Service of Ukraine and became the basis for further justification of conclusion on the necessity of dismissal from their positions of a significant number of employees of the agencies of the State Fiscal Service.

Thus, it was determined in the above letter that the officials who had served (worked) at the positions of heads (deputy heads) of structural subdivisions of the central office of the State Customs Service of Ukraine and of the State Tax Service of Ukraine (on the level of departments acting as the independent structural subdivisions and of administrations as the functional structural subdivisions), as well as the customs in the period from 2010 to 2013 (i.e. before the functioning of the Ministry of Income and Fees of Ukraine) are subject to the Lustration Act.

Having carefully examined the above letter, analyzed the justification presented in it, and juxtaposed the circumstances of its drafting, I reached a conclusion that the fact of its publication is connected to the obvious abuse of authority and conscious disregard of the law.

Thus, with regard to the conclusions laid down in the letter and legal norms applied for this end, I have to point out the following. In accordance with paragraph 3, part 1 of Article 3 of the Lustration Act, the prohibitions defined in this law are applicable to a head, a deputy head of an independent structural subdivision of the central executive bodies, responsible for the shaping and implementation of the public tax and/or customs policy, of a tax police.

In accordance with part 2 of Article 1 of the Act on Central Executive Bodies, the Ministries are directly responsible for the shaping and implementation of the public policy in one or several areas, whereas other cental executive bodies perform the function of implementation of the public policy.

Seeing as service in the executive body responsible for the shaping and implementation of the public tax and/or customs policy works as a criterion for the application of special restrictions as defined by the Lustration Act, the Ministry of Finance of Ukraine and the Ministry of Income and Fees of Ukraine (from 2013) could be considered the only bodies of such nature, minding the criteria established by the Act on Central Executive Bodies.

Seeing as service in the executive body responsible for the shaping and implementation of the public tax and/or customs policy works as a criterion for the application of special restrictions as defined by the Lustration Act, the Ministry of Finance of Ukraine and the Ministry of Income and Fees of Ukraine (from 2013) could be considered the only bodies of such nature, minding the criteria established by the Act on Central Executive Bodies.

The understanding of this position does not require profound legal knowledge, examination of any bylaws, or interpretation of complex legal constructions, because direct rule of law as the highest legislative act has to be applied.

However, the letter # 11.0.2 / 1777 of the Ministry of Justice of Ukraine from October 12, 2015, signed by the Deputy Minister and Chief of Staff O. P. Ivanchenko offers a completely opposite interpretation. Thus, O. P. Ivanchenko, the Deputy Minister and Chief of Staff, somehow ignores the specified norms of the Act on Central Executive Bodies and of the Lustration Act. Instead, he conducts an analysis of bylaws – the provisions on the State Customs Service of Ukraine and the State Tax Service of Ukraine. In his analysis he offers a liberal interpretation of whether these agencies have certain powers, which could be related to the shaping of the public tax and/or customs policy.

Since the Deputy Minister and Chief of Staff O. P. Ivanchenko has a degree in law (Master of Law), has completed postgraduate studies, has worked as an attorney, and has 10 years of experience in the legal field, the possibility that she simply made an error is non-existent – O. P. Ivanchenko could not but be aware (even had to be aware, noting her position) of the aforementioned provisions of the Act on Central Executive Bodies and of the taboo on substituting the norms of the law with a random interpretation of the particular provisions of the bylaws. Herewith, O.P. Ivanchenko also could not but know that the official interpretation of the Ukrainian laws, in conformity with Article 147 of the Constitution of Ukraine, is formulated by the Constitutional Court of Ukraine exclusively. Taking this into consideration, the findings laid down in the letter # 11.0.2 / 1777 of the Deputy Minister and Chief of Staff O. P. Ivanchenko from October 12, 2015, are knowingly false.

Moreover, the mere fact of the publication by the Ministry of Justice of Ukraine of an interpretation (clarification) of the legislation on the matters beyond its field of operation is worth paying attention to.

In accordance with paragraph 4 (subparagraph 32) of the Provision on the Ministry of Justice of Ukraine, approved by the act #228 of the Cabinet from July 2, 2014, the Ministry of Justice is authorized to provide a clarification on matters, related to the practice of the Ministry, its territorial bodies, enterprises, agencies and organizations within the field of operation of the Ministry, as well as with respect to acts issued by it.

However, the matters laid down in the letter #11.0.2/1777 of the Ministry of Justice of Ukraine from October 12, 2015, clearly are beyond the scope of those pertinent to the practice of the Ministry of Justice – the matter of determining an agency responsible for the shaping and implementation of the public tax and/or customs policy is beyond the authority of the Ministry of Justice.

The fact that the above-mentioned letter of the Ministry of Justice of Ukraine was signed by the Deputy Minister and Chief of Staff O. P. Ivanchenko is also noteworthy. The powers of a Deputy Minister and Chief of Staff are defined in Aricle 10 of the Act on Central Executive Bodies. According to the Act, the Deputy Minister’s main tasks include maintaining the functioning of the staff of the ministry, ensuring the stability and continuity of their work, organizing current practice connected to the realization of the ministry’s duties. Herewith, the authority on providing the clarification of current legislation, and especially the interpretation of the norms of law, is not provided to the Deputy Minister and Chief of Staff by any regulatory act.

Additionally, in accordance with the aforementioned Act on Central Executive Bodies, the Minister is the one who represents the Ministry. Also, according to paragraph 12 of the Provision on the Ministry of Justice of Ukraine, approved by the act #228 of the Cabinet from July 2, 2014, the Minister is the one who heads and governs the operation of the Ministry of Justice. Imbuing another person with the fulfillment of these functions is allowed only in the event of the Minister’s absence. In conformity with Article 19 of the Constitution of Ukraine, the government bodies and their officials are obliged to act solely on the basis, within the scope and in a manner provided by the Constitution and the legislation of Ukraine.

However, based on the aforementioned circumstances, it is evident that the Deputy Minister and Chief of Staff O. P. Ivanchenko willingly abused her authority through the publication of the above letter # 11.0.2/1777 of the Ministry of Justice of Ukraine from October 12, 2015, because O. P. Ivanchenko:

  • consciously made a judgment on the application of the norms of law, which do not contradict the direct norms of law;
  • abused her authority by interpreting the norms of law with no authority to do so and overstepped the area of competence delegated to the practice of the Ministry of Justice of Ukraine;
  • abused her authority by signing the letter on behalf of the Ministry of Justice of Ukraine, which she had no authority to sign.

 

The publication of the aforementioned letter on behalf of the Ministry of Justice of Ukraine by the Deputy Minister and Chief of Staff O. P. Ivanchenko resulted in multiple violation of the rights of persons, due to the fact that the conclusions laid down in this letter became a justification for dismissal of a significant number of employees of the agencies of the State Fiscal Service from their positions.

In accordance with Article 27 of the Act on Central Executive Bodies, the ministry officials are responsible for damage that was done by unlawful decisions, actions or inaction. Herewith, such damage is to be reimbursed at state expense. Thus, henceforth in the event of the citizens’ appeal to the court for the protection of their rights and the satisfaction of corresponding lawsuits, the state could suffer a financial loss as a result of necessity to reimburse the damage done by the state authorities.

In accordance with Article 20 of the Act on the Cabinet of Ministers of Ukraine, the Cabinet executes control of the compliance with the law of the executive bodies, their officials and takes measures for protection of human and citizen rights, freedoms and dignity from unlawful infringement in the field of legal policy, legitimacy, the safeguarding of human and citizen rights and freedoms. In the field of the improvement of public administration, the Cabinet of Ministers exercises measures for staffing of the executive bodies, as well as measures, within the scope of its authority, for bringing the officials who are appointed to and relieved of their positions by the Cabinet to justice.

Additionally, in accordance with Article 8 of the Act on Central Executive Bodies, the Minister, as a head of the Ministry, leads the Ministry, governs its operation, and according to Article 45 on the Act on the Cabinet of Ministers of Ukraine, the members of the Cabinet of Ministers of Ukraine are personally responsible for the state of affairs in the fields of state governance entrusted to them.

In this case, the lack of supervision on part of Justice Minister P. D. Petrenko over the work of his Deputy and Chief of Staff O. P. Ivanchenko resulted in a flagrant violation of the law and the rights of citizens in the field entrusted to Justice Minister.

In order to put an end to the violation of rights of persons and to prevent the infliction of damage (upon the state, for instance), guided by Article 16 of the Act on Status of Member of Parliament of Ukraine and bearing in mind the aforementioned circumstances, I hereby request:

  1. to review the above questions at the next meeting of the Cabinet of Ministers;
  2. to entrust Justice Minister of Ukraine P. D. Petrenko with a duty to recall the letter #11.0.2/1777 of the Ministry of Justice of Ukraine from October 12, 2015, signed by the Deputy Minister and Chief of Staff O. P. Ivanchenko, as it was published illegally through the abuse of authority;
  3. to examine accordingly the question of dismissal of the Deputy Minister and Chief of Staff O. P. Ivanchenko from her position for the violations of the law and the abuse of authority, which resulted in numerous violations of the rights of persons;
  4. to examine accordingly the question of subjecting Justice Minister of Ukraine P. D. Petrenko to disciplinary action for failure to exercise control in the field of state governance entrusted to him;
  5. to provide me with an answer as to the inclusion of the questions raised in this appeal on the agenda of the next meeting of the Cabinet of Ministers of Ukraine within the period of 10 days, provided by the law. Seeing as the inclusion of the specified questions on the agenda does not require additional examination, any reasons for violating the deadline shall be considered disrespectful.
  6. I kindly request to be informed of the results of the meeting of the Cabinet of Ministers of Ukraine on this matter immediately or one day after the meeting at the latest and to be provided with the copies of relevant decisions.

Attachment: the copy of the letter #11.0.2/1777 of the Ministry of Justice of Ukraine from October 12, 2015, signed by the Deputy Minister and Chief of Staff O. P. Ivanchenko, on 5 pages.

 

Yours respectfully,

A. L. Derkach

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