Political Points for 4 – 11 June 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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- Need to regulate the procedure for holding an all-Ukrainian referendum
- Draft law on criminal offenses adopted in the first reading needs to be substantially revised
- Petro Poroshenko once again proposes to prohibit “release to bail” of persons suspected of committing a serious corruption offence
- Additional legislative changes are needed to launch the anti-corruption court
Need to regulate the procedure for holding an all-Ukrainian referendum
1. CPLR expert opinion
On April 26, the Constitutional Court by its Decision No. 4-p/2018 declared unconstitutional the Law “On All-Ukrainian Referendum”, adopted back in 2012. This very decision of the Constitutional Court stopped the possibility of holding manipulative national referenda in Ukraine. Since then, there is no specialized law regulating the procedure for holding an all-Ukrainian referendum. Within a month and a half since the adoption of the above decision of the Constitutional Court, the Verkhovna Rada has not taken any steps to fill the legislative vacuum in this area.
2. Respective authorities counter-point/argument
None.
3. CPLR assessment of the authorities counter-point
The Verkhovna Rada has already registered the draft law № 2145а, which proposes a new regulation of the procedure for conducting an all-Ukrainian referendum. This draft law was registered back in 2015. In view of the legislative changes that have taken place since its registration, the draft law needs to be finalized. Since the document is included in the agenda of the session, the subject of the legislative initiative can not withdraw it independently, that is, for further elaboration, the Verkhovna Rada needs to vote for it in the first reading.
In addition, it should be noted that the informal working group consisting of national and international experts and representatives of the public, has reached the final stage of the revision of the draft law No. 2145а.
4. Related legislation/instructions which require the authorities act in a certain manner.
Articles 75, 92 of the Constitution of Ukraine establish the constitutional right of citizens to make decisions through national referenda. However, absence of a legislative procedure for holding referenda actually makes it impossible to implement the constitutional right, which is inacceptable in a democratic state.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.
The Committee of the Verkhovna Rada of Ukraine on Legal Policy and Justice should set up a working group on the revision of the draft law No. 2145a.
Draft law on criminal offenses adopted in the first reading needs to be substantially revised
1. CPLR expert opinion
The draft Law on Amendments to Certain Legislative Acts of Ukraine on the Facilitation of Pre-trial Investigation of Certain Categories of Criminal Offenses (Reg. No. 7279-d) was adopted in the first reading on June 7. The need for the adoption of this Law arises based on the provisions of the Criminal Procedure Code of 2012.
2. Respective authorities counter-point/argument
The draft Law is supported by the General Prosecutor’s Office and the Ministry of Internal Affairs. In their opinion, this document is aimed at reducing the workload of investigators and prosecutors by introducing the institute of criminal offenses and simplifying the procedure for their investigation.
3. CPLR assessment of the authorities counter-point
The draft envisages the introduction of amendments to the Criminal Code on the transformation of crimes of minor gravity into criminal offences, indicating the humanization of criminal law.
However, it does not propose to convert the heaviest administrative offenses of criminal legal essence (petty theft, petty larceny, disorderly conduct) into criminal offenses.
In addition, amendments to the CPC, envisaged by the draft law No. 7279-d, contain a number of threats to human rights and freedoms, namely:
- violation of the right to personal freedom (art. 298-2) – introduction of new grounds for detention that directly contradict the Constitution, in particular, the possibility to detain people for trying to leave the scene (without determining which one), being in a condition of alcoholic intoxication etc.;
- violation of the legal certainty principle (art. 298 CPC) – the draft law contains provisions that allow interrogating persons and seizing means or tools prior to the investigation. At the same time, neither the current version of the CPC nor the proposed amendments define the relevant procedures;
- violation of the right to protection – the criminal proceedings must be completed within 72 hours from the moment of notification of suspicion, or 20 days if the person does not recognize the guilty. This will be a clear “signal” for law enforcement officials – get confessions at any price. And currently under a simplified procedure of criminal proceedings, there is no need for the participation of defense and consent of the victim. Will of the prosecutor and recognition of the quilt of the person who did not receive legal aid will serve as sufficient grounds;
- violation of the presumption of innocence – the main purpose of the simplified procedure for investigating offences will be to push the suspect to confess guilt. It becomes possible to prove the guilt of a person with the help of new “sources of evidence” – explanation of the person, medical certificate, conclusion of the expert and data recorded by technical devices.
4. Related legislation/instructions which require the authorities act in a certain manner.
Draft Law No. 7279-d can only be supported in general if the above defects will be eliminated before its second reading in the Parliament.
Petro Poroshenko once again proposes to prohibit “release to bail” of persons suspected of committing a serious corruption offence
1. CPLR expert opinion
Implementation of this initiative will lead to the fact that an absolute majority of suspects in the commission of such corruption crimes will be detained. Meanwhile, according to Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 29 of the Constitution it follows that every person is free. The mere existence of suspicion of committing by a person of a particular crime is not sufficient for restriction or deprivation of his/her personal liberty. That is why for the taking into custody there must be evidences of the existence of real risks of hiding the suspect, committing new crimes by him/her, influence on witnesses and investigation, etc.
2. Respective authorities counter-point/argument
“Today, very often fighting corruption is turned into sport fishing: a criminal is caught, detained, photographed – and released …”. According to the President, such a situation is unacceptable, since all suspects in committing serious corruption crimes should immediately be detained.
3. CPLR assessment of the authorities counter-point
Inconsistency of the approach expressed by the President is explained by the following:
1) a suspect is not guilty; therefore, taking him/her into custody (in fact, deprivation of liberty) according to international standards can be applied only in exceptional cases (when no other preventive measure can ensure the proper conduct of the suspect);
2) “exit” of a suspect (after detention) on bail is not the release of a person from liability or punishment, but only one of the types of preventive measures intended to ensure the proper conduct of the suspect;
3) there are just few cases of hiding from the investigation of persons who were “released” by a court on bail (in 2014-2017, more than 99% of such persons duly fulfilled the conditions of a preventive measure in the form of a pledge);
4) even if the person to whom the pledge is applied, escapes abroad or begins to hide, it will be equally possible to prosecute this person (through the so-called “absentee sentencing” institution) and confiscate all his/her property, as well as illegally obtained benefits;
5) implementation of such ideas of the President will lead to numerous appeals of Ukrainian citizens to the European Court of Human Rights (ECHR), based on which decisions Ukraine (or rather Ukrainian taxpayers) will be forced to pay thousands of compensation;
6) non-application of a pledge to such persons will significantly reduce the possibilities for further compensation to the victims, while taking them into custody will lead to the overloading of investigative detention facilities and significant financial expenses for their detention.
4. Related legislation/instructions which require the authorities act in a certain manner.
Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 29 of the Constitution of Ukraine and Articles 176-178, 182, 183 of the Criminal Procedure Code of Ukraine require an investigating judge and a court to apply a preventive measure in the form of detention only if none of the milder preventive measures can prevent the risks specified in art. 177 of the CPC of Ukraine.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.
The President of Ukraine must stop conducting election campaigning at the price of human rights, while the law enforcement agencies and the court must act only within the limits of the current legislation.
Additional legislative changes are needed to launch the anti-corruption court
1. CPLR expert opinion
On June 7, 2018, the Parliament adopted the Law of Ukraine “On the Supreme Anticorruption Court”. On June 11, the President signed it. As of June 11, the text has not been made public, so the content can not be estimated at the moment. Earlier, the CPLR reported on the high probability of the manipulative selection of judges of the Anticorruption court if the High Qualifications Commission of Judges (HQCJ) will determine the winners of the competition in a non-transparent way.
At the same time, more legislative changes are needed to introduce an effective Anticorruption court.
2. Respective authorities counter-point/argument
The President called on international organizations specializing in the fight against corruption with the participation of Ukraine on the intergovernmental level, to provide at least 12 candidates of international experts to the HQCJ in order to launch the process of establishing a court. The President also addressed the Government and the Ministry of Finance to urgently allocate the financing provided for in the budget, as well as the HQCJ and the High Council of Justice with a request to form this court by the end of the year.
3. CPLR assessment of the authorities counter-point
The algorithm determined by the President for the creation of a Supreme Anticorruption Court is correct, but it does not take into account the requirements of the Constitution of Ukraine. According to it, in order to begin work of the Supreme Anticorruption Court, another law is needed on the establishment of this court, and the draft of such law is not currently submitted to the Parliament. Also, the threat to independent consideration of high-level corruption cases is that the cassation instance is the Supreme Court, which executive staff was selected in a non-transparent and manipulative way.
4. Related legislation/instructions which require the authorities act in a certain manner.
In accordance with the Constitution (Part 2, Article 125), the court is formed, reorganized and liquidated by a law, the draft of which is submitted to the Verkhovna Rada of Ukraine by the President of Ukraine after consultations with the High Council of Justice.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.
The President of Ukraine, after consulting with the High Council of Justice, should introduce, and the Verkhovna Rada of Ukraine should adopt the law on the formation of the Supreme Anticorruption Court.
Also, by way of introducing amendments to the Law “On the Judiciary System and the Status of Judges” it would be advisable to create a separate autonomous anticorruption chamber in the Supreme Court, whose judges should be selected according to the same procedures as the judges of the Supreme Anticorruption Court.