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Article of the Criminal Code on the responsibility of judges for unjust decisions was declared unconstitutional
On June 11, the Constitutional Court of Ukraine (hereinafter – the CCU) declared unconstitutional Article 375 of the Criminal code (hereinafter – the CC) about criminal responsibility of judges for issuing of knowingly unjust court decision.
This article was declared unconstitutional because it was an “unsuccessful imitation of the legal practice of the Soviet state”, it did not “set criteria for determining which sentence, decision, ruling or decree of a judge (judges) was “unjust”, and the meaning of the combination of the words “knowingly unjust” was not disclosed, which “allows an ambiguous understanding of the crime”, “allows the possibility of its abuse in the pre-trial investigation of actions resulting in criminal prosecution of a judge”, which “does not correspond to the principles of the independence of judges, the mandatory nature of the judgment”.
At the same time, the CCU postponed the repeal of Article 375 of the Criminal Code for six months, giving the Verkhovna Rada the opportunity to bring regulations in line with the Constitution of Ukraine and this Decision.
As previously reported by the CPLR experts, for a long time there was a problem with the application of Article 375 of the Criminal Code, which was often used by pre-trial investigation bodies for illegal influence on judges. This situation resulted in the introduction of several draft laws in parliament to clarify the disposition of this article (see the weekly analysis of 18-25 May 2020).
The CCU’s argument concerning the “unsuccessful limitation of the legal practice of the Soviet state” seems strange, as judges’ criminal responsibility for issuing unjust decisions exist in at least 25 member states of the Council of Europe. In particular, criminal responsibility for such actions is established in France, Germany, Belarus, Spain, Bulgaria, Denmark, Turkey, Russia, Azerbaijan, Moldova, Serbia, Estonia and Latvia. The wording of the criminal law indicates the illegality and/or inconsistency or prejudice of the court decision.
At the same time, some of the conclusions set out in the CCU’s decision could potentially complicate the determination of judge’s criminal responsibility for abuse during the adoption of court decisions. In particular, in paragraph 2.5 of the decision, the CCU concluded that: “the final court decision may not be reviewed, except as established by procedural law cases of its review by the relevant court, which excludes the possibility of assessing such a decision by an investigator, prosecutor while taking actions, which aim at bringing judges to criminal responsibility”. That is, the investigator or prosecutor within the pre-trial investigation cannot independently establish the presence of signs of “unjustness” in the court decision, and therefore, as follows from the interpretation of the CCU’s conclusion, such “unjustness” must be established within the review of the court decision in accordance with the procedures, established by the procedural law. In such circumstances, if the decision has not been the subject of an appellate or cassation review, criminal responsibility for the judge should not arise at all. It also effectively excludes the criminal responsibility of judges for making decisions that are not subject to appeal, which obviously does not ensure the achievement of the objectives of criminal liability.
A possible consequence of the decision adopted by the CCU will be the closure of criminal proceedings under Article 375 of the Criminal Code or re-qualification under other articles of the Criminal Code of actions of judges in making appropriate decisions. This may make it possible to avoid criminal responsibility by so-called “Maidan judges” against whom criminal proceedings are being investigated or considered under Article 375 of the CC. According to lawyer R. Maselko, at least 10 such proceedings are currently being heard in the courts.
Currently, the parliament is considering four draft laws with a new version of Article 375 of the Criminal Code, which aim to clarify the concept of an “unjust” (biased, illegal) court decision (see, in particular, political analysis of May 18-25, June 1-8 2020). However, if Article 375 of the Criminal Code is adopted in the new wording, the pre-trial investigation bodies will again have to establish the correspondence of the circumstances of the cases concerning the adoption of judicial decisions by judges to the new features of the crime.
Ukraine's commitments to the IMF on judicial reform do not promise rapid progress in this area
On June 9, the Board of Directors of the International Monetary Fund approved the Letter of Intent and the Memorandum of Economic and Financial Policy (hereinafter – the Memorandum, Ukrainian, English versions), which contains measures and conditions implemented and planned to be implemented and adhered to by the Government of Ukraine and the National Bank during 2020–2021 in order to obtain a loan from the IMF.
Paragraph 26 of the Memorandum provides for measures aimed at strengthening the rule of law by ensuring the independence, integrity and accountability of the judicial authorities.
In order to achieve this goal, paragraph 26 of the Memorandum defines three measures to be implemented by Ukraine, in particular:
1. Establishment of a commission that will carry out a preliminary inspection of the integrity of candidates to the High Council of Justice (hereinafter – the HCJ). Based on the results of the inspection, the commission will recommend at least two candidates for each vacancy to the appointing entities, and the selection procedures will be determined by law. The commission should conduct a similar inspection of the current members of the HCJ, and based on its results it may make a recommendation on the dismissal of a member of the Council to the entity that appointed this member. At least half of the commission members will be respected experts with recognized ethical standards and judicial experience, including relevant experience from other countries. Such experts will have a casting vote.
Scheduled deadline: end of October 2020.
Assessment: Declaring the need to strengthen the control over the integrity of the HCJ members at the international level, Ukraine acknowledged that currently there are serious problems in this area. Creation of an independent body for the pre-selection of the HCJ members on the basis of integrity criterion will allow to partially solve this problem.
Introduction of inspections of the HCJ candidates and current HCJ members for integrity is a positive measure, but there are doubts about the effectiveness of such body’s decisions regarding current HCJ members, as its decision on the dishonesty of a HCJ member will only have a recommendatory value to the appointing (electing) authority.
It is unlikely that entities that have appointed (elected) such members in spite of available information about their possible dishonesty or in violation of legal procedures will dismiss the appointed persons in the future because of such information. In particular, it was the appointing entities that elected individuals to the HCJ, contrary to the constitutional prohibition, with the conclusions of the Public Council of Integrity or manipulating competitive procedures (see political analysis of events prepared by the CPLR experts of October 28 – November 4, May 13-20, April 29 – May 6 2019).
2. Establishment of a permanent inspection unit in the HCJ comprising of full-time staff members to investigate disciplinary cases against judges and provide advice to the Council on disciplinary action and sanctions.
Scheduled deadline: end of November 2020.
Assessment: currently, the HCJ has a unit with almost similar functions – the service of inspectors. The HCJ inspector shall be appointed at the request of a member of the Council, who may further give him/her assignments (pre-analyze the case materials submitted to the HCJ member, collect the necessary information and prepare draft conclusions). It is not clear from the content of the Memorandum what will be the difference between the newly created “inspection unit” and the service of inspectors. Separating the function of verifying (investigating) facts that indicate disciplinary violations from the powers of the HCJ members may have some positive consequences. However, without institutional changes (in particular, the creation of a disciplinary body or bodies not among members of the HCJ), the introduction of a separate unit to “investigate” disciplinary cases will not make the institution of disciplinary responsibility more effective, given the overloading of the HCJ with many issues, including disciplinary complaints, and the contradictory practice of their consideration.
3. Transfer of consideration of individual cases to the Supreme Court. Criteria for determining such cases will include factors such as cases of national importance, cases that exceed a predetermined threshold, or have significant impact or harm to the country and relate to decisions, actions or omissions of specific national bodies (e.g. Government, ministries, National Bank, Antimonopoly Committee, HCJ, National Anti-Corruption Bureau, National Agency for Prevention of Corruption, High Anti-Corruption Court).
Scheduled deadline: the end of August 2020.
Assessment: Currently, cases in which a party is a state body whose jurisdiction extends to the entire territory of Ukraine are considered by the District Administrative Court of Kyiv. In fact, a situation exists in which a local district court has exclusive jurisdiction to hear cases of national importance. CPLR experts pointed in the political analysis of the events of January 13-20, 2020 that this court is known for making many decisions that received negative public and even international resonance, avoiding of the qualification assessment by its judges and numerous journalistic investigations into the lifestyle of its judges, therefore there are reasonable doubts about the independence of its judges.
In view of this, the transfer of jurisdiction to hear such cases to another court is justified. At the same time, the mechanism proposed in the Memorandum may have negative consequences for the Administrative Court of Cassation of the Supreme Court, which will hear such cases in the first instance, and the Grand Chamber of the Supreme Court, which will be the appellate court. After all, these instances are the busiest today. It would be more appropriate to create a separate court (for example, the High Administrative Court) to act as the first instance in these cases, and the appellate court could be divided according to certain criteria between the Administrative Court of Cassation and the Grand Chamber of the Supreme Court.
Combating corruption will not be possible without seeing the main threats
In Annex I to the Memorandum of Economic and Financial Policy of June 2 (hereinafter – the Memorandum, Ukrainian, English versions), the Board of Directors of the International Monetary Fund paid considerable attention to the fight against corruption. It is planned to implement a number of measures in the short term, including monitoring (monitoring the implementation of the Law No.263-IX of 31.10.2019 on illicit enrichment, monitoring the activities of the HAC, NABU and SAP, etc.), financial (providing sufficient financial resources for specialized anti-corruption institutions, providing the HAC with own premises, etc.), legal and organizational (introduction of automatic verification of electronic declarations in the NAPC, strengthening the operational capabilities of NABU, etc.), informational and others, the possibility of which is beyond doubt.
At the same time, the document provides for the implementation of a number of other measures that have not been implemented in Ukraine for various reasons for several years and the prospects for their implementation in 2020–2021 are very vague. These include: empowering NABU with exclusive and exceptional powers to investigate large-scale corruption or high-level officials, while NABU’s authority should not duplicate the authority of with the newly established financial investigation body and other bodies; conducting an external audit of NABU; strengthening the fight against money laundering.
First, the definition of “corruption crime” in Article 45 of the Criminal Code of Ukraine does not take into account its absolute inconsistency with the definition of “corruption offense” in Article 1 of the Law of Ukraine “On Prevention of Corruption”, committed by listing a number of crimes, some of which are not really corrupt (such as false declaration or violation of drug trafficking rules), and at the same time it does not cover many crimes that are corrupt (for example, committed by an official in order to obtain illegal benefits, smuggling, crimes against the voting rights of citizens, disclosure of various secrets, raidership, etc.).
The Criminal Procedure Code of Ukraine places relevant crimes under the jurisdiction of NABU detectives if they are committed, among others, by officials of the level of deputies of regional councils, prosecutors and judges, servicemen with the rank of generals and thousands of other persons who are not really politically significant persons. At the same time, the list of such persons in the CPC is not consistent with the definition of “national public actors” contained in paragraph 37 of Article 1 of the Law “On Prevention and Counteraction to Legalization (Laundering) of Income from Crime, Financing of Terrorism and Financing of Proliferation of Weapons of Mass Destruction”. The size of the subject of the crime or the damage caused by it should be only five hundred times more than the subsistence level for able-bodied persons established by law at the time of the crime – as of June 1, 2020 it is less than $ 40 thousand, which is a meager amount for Ukrainian top corrupt officials.
All this does not allow NABU and SAP to focus their efforts on combating many types of genuine high-level corruption, and therefore the HAC pass sentences mainly in cases of crimes committed by corrupt officials of far higher level, in addition, which are easy to investigate and prosecute or even are not corrupt.
Therefore, the definition of corruption crimes in the Criminal Code of Ukraine should be based on two main features, according to which such an offense can be recognized as a corrupt offence only if: 1) it was committed by the relevant person using the power or official position or authority; 2) subject, purpose or means of committing such a crime is an illegal gain.
In addition, Annex I to the Memorandum does not draw attention to the fact that in recent years Article 364 of the Criminal Code “Abuse of Power or Official Position” has not been in force in Ukraine, and this article has always been the main barrier to abuse of power by officials or official position. Only in May of this year the Verkhovna Rada supported, and so far only in the first reading, the proposal of the President of Ukraine submitted a year ago to amend the above article, which may again force it to work.
Second. According to the Law No. 361-IX of December 6, 2019, Article 209 of the Criminal Code of Ukraine “Legalization (laundering) of Income Obtained by Criminal Means” has been revised, but its content has not become clearer. Quite the opposite. From the disposition of the article it is currently unclear which words in it define actions and which are the consequences of actions, what the words “including” refer to, how to understand what is first said about “committing actions” and then about “these actions”; whether the listing of types of acts through a comma (without the use of disjunctives) means that the crime is the commission of the whole set of these acts, and not one of them, and so on. As for the promised in the Annex to the Memorandum “improvement of information on beneficial owners by mechanisms that allow sanctions against legal entities for non-compliance with the law”, since the beginning of 2015 (according to Law No. 198-VIII of 12 February 2015) a liability was provided in Article 166-11 of the Code of Ukraine on Administrative Offenses for failure to submit to the state registrar information about the ultimate beneficial owner (controller) of a legal entity, but, according to court statistics, no person was involved in this offense.
Thirdly. In order to conduct an external audit of NABU, the experts need first of all: a) knowledge of the Ukrainian language so that they can read all relevant documents on their own and not depend on translators and other people who may impose their subjective vision on experts; b) understanding of Ukrainian criminal, criminal procedural and other legislation so that they can assess the effectiveness of NABU, and c) free time from any other activities; international experience can only be ancillary. If these conditions are not met, the external audit will either be delayed for two or three years, or will not have results that can be trusted. Without trust in NABU, this body will not receive political support, which may provoke distrust in the entire system of anti-corruption bodies.