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2018 November

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua.

Political Points for 26 November – 3 December

Political Points for 19 – 26 November

Political Points for 29 October – 5 November

 

Political Points for 26 November – 3 December

State Bureau of Investigation began its functioning

1. CPLR expert opinion

On November 27, the SBI began functioning in full scope throughout Ukraine, following the appointment of 23 of 27 candidates for leadership positions in this body, as well as taking the oath of office by 300 investigators.

In the context of fight against corruption, this means that starting from that day, the SBI will conduct pre-trial investigation of corruption crimes committed by persons holding the highest political positions, civil service positions, NABU officials and prosecutors of the SAP (except for cases when the pre-trial investigation of these crimes is attributed to the National Anti-Corruption Bureau of Ukraine according to Part 5 of Article 216 of the CPC of Ukraine). On the first day of its work, the SBI registered several criminal proceedings against corruption crimes, which opens up some optimism.

However, given such a jurisdiction of the SBI, there is a danger that the representatives of the highest levels of power will attempt to use this body to put pressure on the leadership and staff of the NABU and the SAP in order to mitigate their activities.

In addition, there is a danger that, at the initial stage of the functioning of this body, there may also be some difficulties associated with opening of new criminal proceedings for crimes that are subject to the SBI competence and the transfer to the SBI of those proceedings that are being investigated by other pre-trial investigation institutions.

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

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4. Related legislation/instructions which require the authorities act in a certain manner

Part 1 of Final Provisions, Part 1 of Transitional Provisions, Part 4 of Art. 216 of the Criminal Procedure Code of Ukraine, par. 4 of Final and Transitional Provisions of the Law "On the State Bureau of Investigation".

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The main task at the initial stage is to ensure true politically neutral and unbiased activity of the SBI. This is what the conscious authorities, international and domestic experts and Ukrainian public activists who are concerned with reforming of the law enforcement and anti-corruption systems should focus on.

In the context of procedural issues of launching the activities of the SBI it should be noted that, in accordance with the current legislation in Ukraine:

1) starting from November 27, all applications and notices on the commission of crimes falling under the competence of the SBI must be submitted to this body;

2) starting from November 27, all applications and notices on the commission of crimes falling under the competence of the SBI received by the Internal Affairs authorities or the National Police within 24 hours should be submitted to the SBI for entering to the Unified State Register of Pre-Trial Investigations;

3) materials of criminal proceedings under the competence of the SBI, which are being investigated by another body of pre-trial investigation, as of November 27, should be transferred to the SBI within a three-month period to continue the proceedings;

4) criminal proceedings, which were initiated by the investigating authorities of the prosecutor's office before November 27 and are at the stage of pre-trial investigation, should be continued by investigators of the prosecutor's office until the end of the pre-trial investigation, but not more than two years.

 

Imposing of the legal regime of martial law in Ukraine

1. CPLR expert opinion

On the night of November 26, the National Security and Defense Council of Ukraine approved the decision to propose to the President of Ukraine introducing a martial law status for a period of 60 days. The NSDC determined that it is necessary to introduce a special legal regime in Ukraine in order to create conditions for the repression of armed aggression and ensuring national security, eliminating the threats to the independence and territorial integrity of Ukraine. The President of Ukraine immediately addressed the Parliament with a proposal to introduce a martial law status in Ukraine for a period of 60 days. For consideration of this issue the speaker convened an extraordinary session of the Parliament on November 26 at 16-00. During the extraordinary meeting, the President introduced a new version of the Decree on the introduction of the martial law in Ukraine No. 393/2018, in which the period for the introduction of the martial law was reduced to 30 days. On the same day, the Parliament passed the Law of Ukraine On Approval of the Decree of the President of Ukraine "On the Introduction of the Martial Law Status in Ukraine" with a reservation on the introduction of a martial law not in the whole territory of Ukraine, but in 10 oblasts and in the Azov-Kerch water area.

The greatest problem is that neither the Decree nor the Law determines which constitutional rights will be limited during the imposed martial law from November 28 to December 26, 2018, and to what extent.

2. Respective authorities counter-point/argument

In accordance with paragraph 3 of the Decree, the constitutional rights and freedoms of a person and a citizen stipulated by Articles 30-34, 38, 39, 41-44, 53 of the Constitution of Ukraine may be limited in Ukraine for the period of the legal regime of a martial law, as well as temporary restrictions of rights and the legitimate interests of legal entities may be introduced in the scope and to the extent necessary to ensure the possibility of introducing and implementing measures of the legal regime of martial law, provided for in part one of Article 8 of the Law of Ukraine "On the Legal Regime of Martial Law". The President has repeatedly stated that constitutional rights will be limited solely in the event of an escalation of armed conflict with the Russian Federation.

3. CPLR assessment of the authorities counter-point

In accordance with paragraph 5 of part one of Article 6 of the Law of Ukraine "On the Legal Regime of Martial Law", the Decree of the President of Ukraine on the introduction of martial law includes an exhaustive list of constitutional rights and freedoms of a man and a citizen, which are temporarily limited in connection with the introduction of martial law, indicating the effective period of these restrictions, as well as temporary restrictions of the rights and legal interests of legal entities, indicating the effective period of these restrictions. Thus, the President's decree on the introduction of a martial law should not duplicate the provisions of the Law on the list of rights that may be limited during martial law, but specify which rights from this legally determined list shall be limited and in what way, during the first martial law regime introduced in Ukraine.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine: paragraph 31 of part one of Article 85, paragraph 20 of part one of Article 106, Article 6 of the Law of Ukraine "On the Legal Regime of Martial Law", the Decree of the President of Ukraine "On the Introduction of Martial Law in Ukraine" No. 393/2018, the Law of Ukraine on the approval of the Decree of the President of Ukraine "On the Introduction of Martial Law in Ukraine".

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The President and the Verkhovna Rada did not specify in the the Decree and the Law accordingly the list of constitutional rights that are limited during the martial law introduced in Ukraine and the scope of their limitation, which may give rise to unjustified violations of constitutional rights of citizens by state bodies and in general adversely affect the rule of law in the country.

Political Points for 19 – 26 November

Imposition of martial law for 60 days makes it impossible to hold the next regular presidential election

1. CPLR expert opinion

At the night of 26th of November, the National Security and Defense Council of Ukraine decided to suggest the President to impose martial law for the period of 60 days. The Council concluded that it was necessary to impose a special legal regime in Ukraine in order to create proper conditions for dealing with the armed aggression, ensuring national security and mitigating threats to independence and territorial integrity of Ukraine. The President of Ukraine at the very same moment addressed the Parliament with the suggestion to impose martial law in Ukraine for the period of 60 days. The Speaker of the Parliament convened an extraordinary session of the Parliament scheduled for 16.00 on the 26th of November. Imposition of martial law for the period of 60 days will make it impossible to launch the election campaign of the next presidential election which is scheduled to start at 31st of December (see article 17 of the Law of Ukraine “On Election of the President of Ukraine”).

During martial law presidential election is forbidden, and in case when the President’s term of office ends during martial law, the President’s powers shall be prolonged until the newly elected President elected after lifting of martial law takes the office (articles 11 and 17 of the Law “On the Legal Regime of Martial Law”).

Having issued the decree on the imposition of martial law the President of Ukraine de facto initiated the suspension of the next regular presidential election. This decision may lead to domestic tension and will certainly be used by the President’s political opponents as a pretext for allegations in the usurpation of power (particularly in the context of the current preferences of voters).

The Centre of Policy and Legal Reform suggests reducing the term of martial law to 30 days. This will allow for creating of conditions for dealing with the armed aggression, ensuring national security and mitigating threats to independence and territorial integrity of Ukraine while at the same will not lead to suspension of the regular presidential election.

2. Respective authorities counter-point/argument  

The whole situation is changing rapidly, therefore, there are no counter-arguments so far. The President of Ukraine and the National Security and Defense Council of Ukraine did not justify the necessity to impose 60-days martial law.

3. CPLR assessment of the authorities counter-point  

Imposition of the 30-days martial law will disable any possible speculations that the President might use the imposition of martial law as a tool for promotion of his political interests.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, paragraph 31 of article 85, paragraph 20 of part 1 of article 106.

Law of Ukraine “On Legal Regime of Martial Law”.

Law of Ukraine “On Election of the President of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

CPLR recommends to the Verkhovna Rada of Ukraine to change during its extraordinary session on 26th of November the period of martial law from 60 to 30 days. According to the Constitution of Ukraine and article 190 of the Rules of Procedures of the Verkhovna Rada, the Parliament has a right to make changes to the text of the decree submitted by the President.

 

Political Points for 29 October – 5 November

The court acquitted a member of the High Council of Justice Pavlo Grechkivsky, who was accused of fraud

1. CPLR expert opinion

On October 30, 2018, the panel of judges of the Shevchenkivsky district court in the city of Kyiv recognized the member of the High Council of Justice Pavlo Grechkivsky not guilty of committing fraud.

2. Respective authorities counter-point/argument

In September 2016, the General Prosecutor Yuriy Lutsenko informed that the General Prosecutor’s Office and the State Security Service exposed a member of the High Council of Justice Pavlo Grechkivsky on extortion of 500 thousand U.S. dollars for influencing the decision of the judge. The mediator was allegedly arrested red-handed. Grechkivsky was incriminated an unfinished attempt to take possession of someone else's property by fraud or abuse of trust, committed in particularly large amounts or by an organized group.

3. CPLR assessment of the authorities counter-point

It is apparent from the published text of the verdict that during the pre-trial investigation in this criminal proceeding the requirements for investigative jurisdiction were not met. The court also acknowledged the lack of evidence of the objective part of the crime in the actions of Grechkivsky and the mediator. In addition, the court concluded that there was provocation of a crime by the victim and law enforcement agencies. During the trial, the ex-prosecutor Dmytro Sus (a suspect in another criminal proceeding on the acquisition of property and declaring false information) was questioned. He stated that the case of Grechkivsky was allegedly a frame-up. Also, as stated in the court decision, a significant number of other material violations were committed, in particular: interrogation of a person as a victim was carried out before the introduction of information about the criminal proceedings to the Unified Register of Pre-trial Investigations; the information entered in the URPI indicated the circumstances that occurred two days after; unmotivated resolution to change the investigative jurisdiction; Grechkivsky's questioning as a suspect before reporting a suspicion to him etc.

In this regard, during the proceedings against Grechkivsky, the GPO and the SSU did not comply with the principles of criminal proceedings, and it is likely that all proceedings were used for political or other unlawful purposes.

4. Related legislation/instructions which require the authorities act in a certain manner

Articles 2, 7, 8, 9, 17, part 5 of Article 36, Article 216 of the CPC, Articles 15, 190 of the CC.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The criminal proceeding against a member of the HCJ Pavlo Grechkivsky is an example of the inability of the prosecutors and the GPO leadership to comply with the requirements of the criminal procedural law, which leads to acquittal sentences. In addition, this proceeding is indicative from the point of view of the use of the prosecutor's offices and criminal investigation tools for political purposes. Actions of public prosecutors of the GPO may contain signs of a crime provided for in Part 2 of Article 372 of the Criminal Code. These actions must be given due legal assessment within the framework of an objective and comprehensive pre-trial investigation of investigators and prosecutors in the proceedings against Grechkivsky.

In the case of the reliability of information on the receipt of an unlawful benefit by a member of the HCJ with a view to further influencing the court's adoption of the necessary decision, these actions should be qualified as an abuse of influence (Article 369-2 of the Criminal Code) and would be investigated by the National Anti-Corruption Bureau.

 

The Council of Europe presented a negative opinion on the draft law on criminal offenses No.7279-d, which was previously publicly supported by the Head of the EU Advisory Mission

1. CPLR expert opinion

The adoption of the Criminal Procedure Code in 2012 laid the grounds for further changes in the criminal justice system, in particular the introduction of the institution of criminal offence. This involves delineating the offenses depending on the severity, limiting the scope of the use of sentences related to deprivation of liberty, etc.

In pursuance of these tasks, the draft law No. 7279-д "On Amending Certain Legislative Acts of Ukraine on the Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses" was elaborated.

The experts of the Council of Europe issued a negative opinion on this draft law, which was published last week. In particular, it states: "The need for effective response to mass crimes against minor offenses should not allow neglecting basic procedural guarantees. Unfortunately, such neglection will be a consequence of the proposed procedure (by the draft law – author's note), which will allow the application of procedural steps before any information is submitted to the Unified Register both in circumstances that have led to past abuses and in other cases in respect of which no provision has been made for the use of appropriate safeguards against such abuse; in addition, it will leave unclear restrictions on the length of the investigation and will create the possibility of putting pressure on suspects to forcibly convict themselves and deprive the defense party of the fundamental rights" (paragraphs 193, 194 of the Opinion).

We would like to remind that earlier, the publication of the Head of the EUAM (Advisory Mission of the European Union) K. Lančinskas, whereby he supported this draft law, appeared.

2. Respective authorities counter-point/argument

Draft Law No. 7279-д was adopted in the first reading on June 7, 2018. A special parliamentary committee considered the document at the meeting on September 20 and recommended it for approval by the parliament in general.

On November 7, the parliamentary committee is scheduled to re-examine the draft law in order to take into account the position of the Council of Europe and the legal department of the Verkhovna Rada.

3. CPLR assessment of the authorities counter-point

According to the experts of the Council of Europe, the following provisions of the draft law 7279-d should be rejected as unacceptable:

1. Strengthening penalties in a number of crimes, which do not meet both the principle of equality and the principle of proportionality. They will not in any way affect the reduction of the burden on the bodies of pre-trial investigation, as the order of the investigation will remain unchanged for such cases.

2. Introduction of individual inquiry units may complicate the functioning of the criminal justice system. The introduction of formal differences between the inquiry bodies and the pre-trial investigation bodies will only create unnecessary duplication of powers and adversely affect the effectiveness of investigations.

3. Another attempt to return to the text of the CPC of the possibility of conducting inspections, medical examinations, etc., entering information to the Unified Register of Pre-trial Investigations in "urgent cases" was recognized inappropriate. Such changes will throw back the criminal justice reform, as they will inevitably lead to violations of the rights of a person who will in effect be deprived of the guarantee of judicial control over the actions of the inquirers.

4. Extremely short deadlines for inquiry are ungrounded: 72 hours after notification of suspicion in case the person finds guilty; 20 days, if the person does not recognize the guilt or there is a need for additional investigative actions; 1 month, in case of submission of a request for an expert examination. Unreality of the proposed terms will lead to the use of illegal methods of pressure on individuals by the authorities.

5. Excessively shortened deadlines for consideration of indictments, combined with the possibility of considering such a conclusion by a court in the absence of participants. In case of unconditional recognition of guilt by a person, judicial review as such may not be carried out at all.

4. Related legislation/instructions which require the authorities act in a certain manner

The Constitution of Ukraine, the Criminal Code of Ukraine, the Code of Administrative Offenses of Ukraine, the Criminal Procedure Code of Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

It is necessary to coordinate the positions of European institutions regarding the draft Law No. 7279-d.

If the draft Law No. 7279-d will to be introduced for consideration by the Verkhovna Rada of Ukraine in its current version, it should be rejected, since the proposed changes to the CPC have inconsistencies with European standards.

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