Political Points for 12 – 19 March 2018
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.
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The work of the criminal justice authorities of Ukraine is paralyzed
1. CPLR expert opinion
On March 16, the amendments to the Criminal Procedure Code, which were adopted on October 3, 2017 together with other procedural codes that were necessary for the establishment of the new Supreme Court, entered into force. These amendments also included a number of provisions which are extremely harmful for the investigation of crimes, the so called “Lozovyi amendments.” In particular:
1. Appealing to a court with a petition for the application of criminal proceedings measures, especially preventive measures and searches, is possible only to the court at the place of registration of the investigation authorities. That is, all petitions are considered only in 25 local courts of regional centers.
2. Any examination (forensic examination of the causes of death, economic examination for the evaluation of damage, forensic assessment of the severity of bodily injuries, etc.) is currently being conducted only upon the decision of the investigating judge. This creates an excessive burden for ordinary citizens. In the case of death of a person and suspicion of violent death, an investigator may appoint an examination only upon the availability of a court decision.
3. The monopoly of the state for conducting examinations in criminal investigations is established. This will lead to the spread of corruption, since the choice of the place of examination will be narrowed significantly, and it will greatly affect the time for conducting an examination.
4. The terms of pre-trial investigation in criminal proceedings in which no person was notified of suspicion are now limited to 12 months (for crimes of small and medium gravity) and 18 months (for grave and especially grave crimes). That is, the new system changes the time for calculating the pre-trial investigation period from the moment of the notification of suspicion to the moment the information is entered into the registry of investigations. After the expiry of specified deadlines and the absence of suspected persons, the proceedings would need to be closed, although the limitation periods for prosecution under the Criminal Code are not expired.
5. The possibility to cancel suspicion reports by a court brings back the corruption practices that existed before 2012 and leads to blocking investigations.
The new rules of investigation apply exclusively to new cases initiated after March 16. Nevertheless, currently both the courts and the prosecution in practice find it difficult to understand the rules that came into force. It already leads to legal chaos, abuse and worsens the efficiency of the investigation.
2. Respective authorities counter-point/argument
The Prosecutor General, the Head of the National Police, the Minister of the Interior and representatives of the judiciary repeatedly publicly declared that the new rules should not be enforced. They jointly project that this will lead to a “collapse of the law enforcement system”. This position was supported by the Committee on Legislative Support of Law Enforcement Activity of the Verkhovna Rada of Ukraine.
3. CPLR assessment of the authorities counter-point
The position of the authorities in general is supported by the expert environment. The amendments violate the balance between an effective pre-trial investigation of crimes and the safeguarding of the rights of individuals. Slowdown of the investigation process by creating queues in the courts will have a negative impact on the investigation process, in particular the restoration of justice for victims of crimes.
At the same time, amendments to the CPC became the subject of political bargaining, rather than weighed legal proposals to the CPC. That is why, in a situation where the expert community and law enforcement agencies are opposed to the amendments, they still enter into force.
4. Related legislation/instructions which require the authorities act in a certain manner
The Constitution of Ukraine, the Criminal Procedure Code, the Law of Ukraine “On Forensic Examination”
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
On March 15, the Verkhovna Rаda rejected the Draft Law No. 7547 prepared with the involvement of the Center’s experts, which provided for the abolition of the new provisions of the CPC for all criminal proceedings. At the same time, the specialized Committee prepared a compromise version of this draft law, which left some of the new rules for crimes in the field of economic activity, official activity and crimes against justice.
After the rejection of this draft law, the problem can be solved by registering a new draft law that would return the text of the CPC to the previous version.
Opinion on the draft Law of Ukraine "On the Election of People's Deputies of Ukraine" No. 7366-2
1. CPLR expert opinion
The Draft Law of Ukraine “On the Election of People’s Deputies of Ukraine” No. 7366-2 (hereinafter referred to as the Draft Law) was registered on December 20, 2017 as an alternative to the Draft Law No. 7366. It was elaborated by the People’s Deputies L. Yemets, G. Hopko, N. Veselova and N. Yednak.
To a large extent, the provisions of the Draft Law, primarily on the election procedures, are based on the norms stated in the Draft Law No. 1068-2, which was rejected by the People’s Deputies in 2017.
2. Respective authorities counter-point/argument
None.
3. CPLR assessment of the authorities counter-point
Under the proportional system envisaged by the Draft Law, parliamentary elections will be held in 28 constituencies, the boundaries of which generally correspond to the boundaries of the regions (except for the Dnipropetrovsk region and the city of Kyiv). In the elections, each party will put forward two types of lists – a single list of candidates in the national constituency and lists of candidates in the respective electoral regions from which a single list of candidates will be formed. In the electoral regions, voters will vote for the respective regional lists, rather than a single list of candidates. The voting will be exercised by typing the serial number of the list to the ballot paper. In addition, a voter may also optionally vote for a particular candidate included in the list for which he/she votes (also by typing his/her serial number to the voting bulletin). A voting bulletin that does not specify any serial number in the list will be considered invalid.
Only those parties that were supported by at least 4% of voters on their regional lists in the national constituency shall be entitled to participate in the distribution of deputy seats.
After identifying the parties that have overcome the electoral barrier, the CEC shall determine the election quotas – the number of votes needed to obtain one seat. Moreover, these election quotas are determined separately for each electoral region and for the national constituency.
After this, the CEC will determine the number of seats that each regional party list will receive. In each electoral region, deputy seats are distributed among the regional electoral lists of party candidates in proportion to the number of votes cast in support of the respective regional election list. In order to determine the number of deputy seats obtained by a regional election list of party candidates, the number of votes cast in the electoral region in support of the respective regional election list shall be divided by an electoral quota. The whole part of the received share shall constitute the number of deputy seats received by candidates included in the respective regional election list from this party.
Candidates who have the fraction of the division of the votes cast for them by the total number of votes submitted in support of the respective regional party election list of not less than 0.005, shall be placed in the top of the regional election list of the respective party in descending order of their respective shares.
In order to determine the number of seats received by a party within the national electoral constituency, the number of votes cast for all the regional election lists of candidates from this party within the national constituency is divided by an election quota for the national electoral constituency.
With this purpose, the number of votes cast for him/her in the electoral region will be divided by an election quota, and the number received will be rounded to an integer. These seats will be given to candidates from the party in the electoral region who received the largest number of votes in their support. Unallocated seats in the constituencies will be given to a list of candidates from the same party in the national constituency. The seats in the list of party candidates in the national constituency will be replaced in the order of precedence, as determined by the list; while the candidates selected in the electoral regions will not be taken into account.
For the Expert Opinion of the CPLR on the Draft Law on the Election of People’s Deputies No. 7366-2, see the link.
4. Related legislation/instructions which require the authorities act in a certain manner
The introduction of a proportional electoral system with open party lists corresponds to the Coalition Agreement and the Plan of Legislative Support to Reforms in Ukraine.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The proposed Draft Law is fully compliant with the Coalition Agreement, the recommendations of international organizations (PACE Resolution No. 1549 (2007), PACE Resolution No. 1755 (2010), Opinion of the Venice Commission CDL-AD (2011) 037 dated October 17, 2011), duly protects the rights of internally displaced persons and Ukrainians living abroad, contains significant restrictions on political advertising. At the same time, the Draft Law has weaknesses concerning the introduction of a rigid gender quota, and the impossibility of electing the constitutional composition of the Verkhovna Rada of Ukraine. In case of the rejection of the draft Election Code, we recommend to support this draft law in the first reading under condition of its further elaboration.