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Political Points for 29 October – 5 November 2018

05.11.2018

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. 

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




The court acquitted a member of the High Council of Justice Pavlo Grechkivsky, who was accused of fraud


1. CPLR expert opinion

On October 30, 2018, the panel of judges of the Shevchenkivsky district court in the city of Kyiv recognized the member of the High Council of Justice Pavlo Grechkivsky not guilty of committing fraud.

2. Respective authorities counter-point/argument

In September 2016, the General Prosecutor Yuriy Lutsenko informed that the General Prosecutor’s Office and the State Security Service exposed a member of the High Council of Justice Pavlo Grechkivsky on extortion of 500 thousand U.S. dollars for influencing the decision of the judge. The mediator was allegedly arrested red-handed. Grechkivsky was incriminated an unfinished attempt to take possession of someone else’s property by fraud or abuse of trust, committed in particularly large amounts or by an organized group.

3. CPLR assessment of the authorities counter-point

It is apparent from the published text of the verdict that during the pre-trial investigation in this criminal proceeding the requirements for investigative jurisdiction were not met. The court also acknowledged the lack of evidence of the objective part of the crime in the actions of Grechkivsky and the mediator. In addition, the court concluded that there was provocation of a crime by the victim and law enforcement agencies. During the trial, the ex-prosecutor Dmytro Sus (a suspect in another criminal proceeding on the acquisition of property and declaring false information) was questioned. He stated that the case of Grechkivsky was allegedly a frame-up. Also, as stated in the court decision, a significant number of other material violations were committed, in particular: interrogation of a person as a victim was carried out before the introduction of information about the criminal proceedings to the Unified Register of Pre-trial Investigations; the information entered in the URPI indicated the circumstances that occurred two days after; unmotivated resolution to change the investigative jurisdiction; Grechkivsky’s questioning as a suspect before reporting a suspicion to him etc.

In this regard, during the proceedings against Grechkivsky, the GPO and the SSU did not comply with the principles of criminal proceedings, and it is likely that all proceedings were used for political or other unlawful purposes.

4. Related legislation/instructions which require the authorities act in a certain manner

Articles 2, 7, 8, 9, 17, part 5 of Article 36, Article 216 of the CPC, Articles 15, 190 of the CC.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The criminal proceeding against a member of the HCJ Pavlo Grechkivsky is an example of the inability of the prosecutors and the GPO leadership to comply with the requirements of the criminal procedural law, which leads to acquittal sentences. In addition, this proceeding is indicative from the point of view of the use of the prosecutor’s offices and criminal investigation tools for political purposes. Actions of public prosecutors of the GPO may contain signs of a crime provided for in Part 2 of Article 372 of the Criminal Code. These actions must be given due legal assessment within the framework of an objective and comprehensive pre-trial investigation of investigators and prosecutors in the proceedings against Grechkivsky.

In the case of the reliability of information on the receipt of an unlawful benefit by a member of the HCJ with a view to further influencing the court’s adoption of the necessary decision, these actions should be qualified as an abuse of influence (Article 369-2 of the Criminal Code) and would be investigated by the National Anti-Corruption Bureau.



The Council of Europe presented a negative opinion on the draft law on criminal offenses No.7279-d, which was previously publicly supported by the Head of the EU Advisory Mission


1. CPLR expert opinion

The adoption of the Criminal Procedure Code in 2012 laid the grounds for further changes in the criminal justice system, in particular the introduction of the institution of criminal offence. This involves delineating the offenses depending on the severity, limiting the scope of the use of sentences related to deprivation of liberty, etc.

In pursuance of these tasks, the draft law No. 7279-д “On Amending Certain Legislative Acts of Ukraine on the Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses” was elaborated.

The experts of the Council of Europe issued a negative opinion on this draft law, which was published last week. In particular, it states: “The need for effective response to mass crimes against minor offenses should not allow neglecting basic procedural guarantees. Unfortunately, such neglection will be a consequence of the proposed procedure (by the draft law – author’s note), which will allow the application of procedural steps before any information is submitted to the Unified Register both in circumstances that have led to past abuses and in other cases in respect of which no provision has been made for the use of appropriate safeguards against such abuse; in addition, it will leave unclear restrictions on the length of the investigation and will create the possibility of putting pressure on suspects to forcibly convict themselves and deprive the defense party of the fundamental rights” (paragraphs 193, 194 of the Opinion).

We would like to remind that earlier, the publication of the Head of the EUAM (Advisory Mission of the European Union) K. Lančinskas, whereby he supported this draft law, appeared.

2. Respective authorities counter-point/argument

Draft Law No. 7279-д was adopted in the first reading on June 7, 2018. A special parliamentary committee considered the document at the meeting on September 20 and recommended it for approval by the parliament in general.

On November 7, the parliamentary committee is scheduled to re-examine the draft law in order to take into account the position of the Council of Europe and the legal department of the Verkhovna Rada.

3. CPLR assessment of the authorities counter-point

According to the experts of the Council of Europe, the following provisions of the draft law 7279-d should be rejected as unacceptable:

1. Strengthening penalties in a number of crimes, which do not meet both the principle of equality and the principle of proportionality. They will not in any way affect the reduction of the burden on the bodies of pre-trial investigation, as the order of the investigation will remain unchanged for such cases.

2. Introduction of individual inquiry units may complicate the functioning of the criminal justice system. The introduction of formal differences between the inquiry bodies and the pre-trial investigation bodies will only create unnecessary duplication of powers and adversely affect the effectiveness of investigations.

3. Another attempt to return to the text of the CPC of the possibility of conducting inspections, medical examinations, etc., entering information to the Unified Register of Pre-trial Investigations in “urgent cases” was recognized inappropriate. Such changes will throw back the criminal justice reform, as they will inevitably lead to violations of the rights of a person who will in effect be deprived of the guarantee of judicial control over the actions of the inquirers.

4. Extremely short deadlines for inquiry are ungrounded: 72 hours after notification of suspicion in case the person finds guilty; 20 days, if the person does not recognize the guilt or there is a need for additional investigative actions; 1 month, in case of submission of a request for an expert examination. Unreality of the proposed terms will lead to the use of illegal methods of pressure on individuals by the authorities.

5. Excessively shortened deadlines for consideration of indictments, combined with the possibility of considering such a conclusion by a court in the absence of participants. In case of unconditional recognition of guilt by a person, judicial review as such may not be carried out at all.

4. Related legislation/instructions which require the authorities act in a certain manner

The Constitution of Ukraine, the Criminal Code of Ukraine, the Code of Administrative Offenses of Ukraine, the Criminal Procedure Code of Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

It is necessary to coordinate the positions of European institutions regarding the draft Law No. 7279-d.

If the draft Law No. 7279-d will to be introduced for consideration by the Verkhovna Rada of Ukraine in its current version, it should be rejected, since the proposed changes to the CPC have inconsistencies with European standards.