Political Points for 26 November – 3 December 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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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.