What are you interested in?

Weekly analytics for 20 – 26 October 2020

26.10.2020

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




Introduction of life imprisonment for corruption crimes will not solve the problem, but will exacerbate it


Event

On October 21, twenty-five people’s deputies of Ukraine – members of the faction of the political party All-Ukrainian Association “Batkivshchyna” initiated the adoption of the draft Law “On Amendments to the Criminal Code of Ukraine (on life imprisonment for particularly serious corruption crimes)” (Reg. No. 4242).

The draft law proposes to provide for life imprisonment for:

– misappropriation, embezzlement, actual seizure of another’s property through abuse of office by an official, committed on a particularly large scale or by an organized group (Part 5 of Article 191);

– acquisition, possession, use, disposal of property in respect of which the factual circumstances indicate its receipt by criminal means, committing acts aimed at concealment, masking the origin of such property or possession of it, the right to such property, its sources of origin, location, if these acts committed by a person who knew or should have known that such property was directly or indirectly, fully or partially obtained by criminal means, committed by an organized group or in a particularly large amount (Part 3 of Article 209);

– accepting an offer, promise or receiving an improper benefit, requesting to provide such benefit to oneself or a third party for an act or omission by an official in the interests of the person offering, promising or providing an improper benefit, or in the interests of a third party of any action using the delegated power or official position, if the subject of such a crime was an illegal gain in a particularly large amount, or it was committed by an official who holds a particularly responsible position (Part 4 of Article 368 of the Criminal Code of Ukraine, hereinafter – the CC).

CPLR assessment

The fact that the law will provide for life imprisonment for the most serious cases of corruption does not mean that the courts will apply such punishment.

In 2019, 105 people were sentenced in Ukraine for willful murder under aggravating circumstances. However, only 9 of them were sentenced to life imprisonment, 79 persons got from 10 to 15 years and another 17 persons –  from 5 to 10 years, although for this crime the CC (part 2 of Article 115) provides for imprisonment for a term of 10 to 15 years or life imprisonment.

Therefore, the main factor that has a certain deterrent effect is the verdict of the court, in other words, the inevitability of punishment. What kind of sentence will this be, it is a secondary question.

In 2019, 9,074 crimes have been registered in Ukraine under Art. 191 of the CC (misappropriation, embezzlement of property or its acquisition by abuse of office). 3,937 persons who committed this crime were served with a notice of suspicion, but in the same year only 340 people were convicted for this crime. Similar statistics took place in previous years, as well as under Articles 209 and 368 of the Criminal Code of Ukraine.

Thus, the result of the administration of justice will be the same in case of non-application of punishment in the form of 12 years of imprisonment for the most serious cases of corruption (provided by the current CC) and in case of non-application of life imprisonment.

At the same time, it is worth focusing on the fact that the draft law does not propose to replace the existing sentence for these corruption crimes with life imprisonment, but establishes a wide discretion of the judge’s powers when sentencing for criminal offenses. The point is that the crimes under Part 5 of Art. 191, part 3 of Art. 209 and Part 4 of Art. 368 of the CC, are punishable by imprisonment for a term of 7 or 8 and up to 12 years or life imprisonment. Thus, the absence of criteria by which a judge elects a particular type of punishment equates a term of imprisonment with a restriction of the right to hold certain positions to life imprisonment. In this case, the damage caused by the crime and the punishment for that crime become disproportionate and do not comply with the principle of proportionality, which the European Court of Human Rights and the Constitutional Court of Ukraine recognize as an integral part of the rule of law. (See, in particular, Decision of the ECHR in the case “Scoppola against Italy” of 17 September 2009 and the Decision of the Constitutional Court of Ukraine in the case of imposition of a milder sentence by a court (15-rp/2004 of 2 November 2004).

In the context of the inevitability of punishment for corruption, it is important that the sentence includes additional penalties, namely: deprivation of the right to hold certain positions (duration of which may be significantly increased compared to the current Criminal Code of Ukraine – from 1 to 3 years), special confiscation (sometimes courts should apply general confiscation, at least partial), as well as a fine.

In 2019, in Ukraine, deprivation of the right to hold certain positions was applied only to one third of convicts under Art. 191 of the CC, special confiscation and a fine – to noone, and general confiscation – to 3 people.

It should be noted that the real several years’ term of imprisonment for corruption in the modern world is a very long term. Keeping convicts in colonies places a heavy burden on the budget, i.e. on each of the taxpayers. Now the number of people sentenced to life imprisonment  in Ukraine is more than 1,500 (by the way, Ukraine ranks first in Europe in their number).

At the same time, corrupt officials are precisely the category of persons who, if convicted, could provide significant amounts of fines to the budget as additional penalties if they are entered into agreements on a certain amount of such a fine in exchange for a reduction in imprisonment, such as from 7 to 5 or from 5 to 3 years (of course, this is not a complete replacement of imprisonment with a fine, although in mild cases we can talk about probation with all its burdens).

There is no point in bargaining with a person convicted to life imprisonment and he/she will do everything possible to pay off the investigation and the court in general. The level of corruption in this case will only increase.



President Volodymyr Zelensky once again insists on effective judicial reform


Event

On October 20, in his annual address to the Verkhovna Rada on the internal and external situation in Ukraine, the President Volodymyr Zelensky reiterated the need for judicial reform, emphasizing that: “We need change. Not paraphrased opinions from previous versions of judicial reform. But effective solutions. ”

The analytical report of the National Institute for Strategic Studies, which is enclosed to this address, states the need to improve the legislation on the judiciary, taking into account the mistakes of previous reforms and in accordance with the Constitution, international law and standards. The urgent issues of the judicial system that need to be addressed included: staffing local and appellate courts with a sufficient number of judges; ensuring access to justice and enforcement of court decisions; adequate funding of the judiciary; introduction of e-justice tools; conducting an effective communication policy. Emphasis was also placed on the need for legislative settlement of out-of-court dispute resolution methods, as well as the abolition of the lawyer’s monopoly.

On the eve of the hearing of the President in the Parliament, an article was published by Denis Malyuska (Minister of Justice), Andriy Smyrnov (Deputy Head of the Office of the President) and Andriy Kostin (Chairman of the Verkhovna Rada Committee on Legal Policy) on judicial reform after the Opinion of the Venice Commission on the presidential draft law  No. 3711. The article emphasizes that the draft law No. 3711 is only the first stage of judicial reform and is designed to resume the activities of the High Qualifications Commission of Judges to overcome the staff shortage in the courts, as well as to solve the problem of judges of the Supreme Court of Ukraine. The second stage of the reform will improve the procedure for selecting members of the High Council of Justice and its work, and the third stage will address the problems of the unity of judicial practice.

CPLR assessment

Since his election, President Volodymyr Zelensky has repeatedly stressed the need for judicial reform (see weekly analyzes of January 20-27February 4-10June 30 – July 6 2020). However, the President’s actions were often inconsistent with his public statements. Moreover, as the CPLR experts pointed out back in January 2020 (and this has remained unchanged) it is not clear which vector of comprehensive judicial reform the new political authorities have chosen, as the draft laws submitted to Parliament by the President or his political force are aimed at occasional and not always well-thought-out reform of individual processes in the judicial system and the judiciary, rather than systemic and consistent changes.

In addition, it is currently unknown who is responsible for developing a further judicial reform strategy. For example, in June 2019, the President established a Legal Reform Commission to develop such a concept, but the relevant judicial reform working group within the commission last met in December last year and transferred its developments to the President’s Office, where they received no further action.  In June 2020, the President gave a mandate to develop the concept of judicial reform to the National Reform Council, whose Executive Committee is headed by Mikheil Saakashvili. The latter limited himself to recording the video. As follows from the above-mentioned article, the Ministry of Justice, the relevant parliamentary committee and the Office of the President are now responsible for judicial reform. In his message, the President mentioned the “relevant legal commission set up in the Office of the President” (probably, this is a desire to revive the Legal Reform Commission, the relevant working group of which had not met since December last year; it submitted its developments to the Office of the President, but they appeared to be not in demand).

“The President wants reform, but he still can’t decide not even what to do with the scenario, but who will write it – he created a Commission, then authorized Saakashvili, then mentioned the Commission, which has not been working for 10 months. But the things are not moving. Moreover, his Office is making efforts not to restart the High Council of Justice, which upholds the circular guarantee in the justice system and, according to the Venice Commission Opinion, remains unreformed. On the contrary, he wants to increase its influence” – comments Roman Kuybida, the expert of CPLR.

That is, at the official level there are no directions for further reforms in the justice system, nor a clearly defined entity responsible for developing the concept of such a reform and developing specific draft laws in this area. Instead, there are several such entities and none of them has proved effective.

It should be reminded that the Centre of Policy and Legal Reform in cooperation with the DEURE Foundation, the Center for Combating Corruption, All-Ukrainian Union “Avtomaidan” and Transparency International Ukraine have developed a Roadmap for Judicial Reform

Areas of change to reduce corruption in the justice system include, among others, the draft Anti-Corruption Strategy for 2020-2024, developed by the National Agency for the Prevention of Corruption (see more details in the weekly analysis of June 22-30 September 8-14 2020). The draft strategy is currently being considered by Parliament. The High Council of Justice does not support it.



Petition on the liquidation of the District Administrative Court of Kyiv received more than 25,000 votes. It must be considered by the President


Event

On October 26, the electronic petition on the liquidation of the District Administrative Court of Kyiv (hereinafter – DACK) reached the statutory minimum of 25,000 votes, so it must be considered by the President of Ukraine.

According to the authors of the petition, the DACK has completely lost the authority and respect of citizens due to a series of corruption scandals involving judges of this court. This is evidenced, in particular, by the materials of investigative actions published by the National Anti-Corruption Bureau of Ukraine, which contain data on deep-rooted corruption in court and the practice of making unjust decisions.

In this regard, the authors of the petition call on the President of Ukraine to immediately submit a draft law on the liquidation of the DACK, as according to Article 125 of the Constitution of Ukraine the President of Ukraine has the exclusive right to submit draft laws on the establishment, reorganization or liquidation of courts.

CPLR assessment

Indeed, the DACK has gained a negative reputation, and the facts associated with it significantly damage the authority of the judiciary in general, as they indicate deep-rooted corruption, including political corruption.

However, the loss of authority, by law, is not a legal basis for the liquidation of the court. According to Article 19 of the Law of Ukraine “On the Judiciary and the Status of Judges”, the exclusive grounds for establishing or liquidating a court are changes in the judicial system defined by this Law, the need to ensure access to justice, optimization of state budget expenditures or changes in administrative and territorial organization.

In fact, there are grounds for making legislative decisions on this court. According to official statistics, this court is overloaded with cases: last year it had 47,055 cases, and one year before – 42,701 cases. In fact, every fifth administrative case is heard in this court, while in Ukraine there are 24 more district administrative courts. The balance of unresolved cases is growing, as well as cases that have not been considered for more than one year (as of the end of 2019, more than 24 thousand cases were not considered, more than 6 thousand cases remain unresolved for more than a year). In other district administrative courts, such balances are tens, hundreds, and even thousands of times smaller. Therefore, this court does not ensure access to justice. Therefore, even conducting an assessment and recruiting other judges will not solve this problem.

Roman Kuybida, a CPLR expert, shared a possible solution to the problem: “It is expedient to create a High Administrative Court based on the model of the High Anti-Corruption Court, which would take over part of the DACK’s competence over higher authorities. After that, it will be quite reasonable to liquidate the DACK with the Kyiv District Administrative Court, which extends its jurisdiction to the Kyiv region, and create a single district administrative court instead, re-forming it on a competitive basis”.

It should be reminded that according to the Constitution, only the President can initiate a draft law to change the network of courts.