22 Oct, 2024
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Recently Signed Public Consultations Law Fails To Address One Of the Main Goals Of Its Adoption
Event
On October 17, 2024, the President of Ukraine signed the Law of Ukraine “On Public Consultations” № 3841-IX (adopted on June 20, 2024). The Law establishes the procedure for conducting public consultations at all stages of the development, formulation, and implementation of state policy, as well as in resolving issues of local significance.
CPLR’s assessment
Unfortunately, the final version of the law omits one of its key provisions: the requirement for MPs to hold public consultations on their proposed draft laws. This is a significant flaw in Ukraine’s governance system, as majority of laws (82% in 2023) are adopted from among the drafts submitted by MPs.
Imperfect draft laws are frequently submitted to parliament without considering even the most obvious negative consequences. Additionally, the ministries often bypass established procedures, including horizontal coordination, public discussions, and government committee reviews by introducing their proposals through MPs. Sometimes this results in flawed decisions, as certain laws are passed too quickly and in a non-transparent manner.
In developed democracies the legislative drafts are primarily drafted by the government, following established policy procedures, as the executive branch has the expertise and resources necessary for this process. Ukraine should similarly work to increase transparency and predictability in its legislative process.
The SIGMA program, in its opinion on the draft Law “On Public Consultations” (№ 4254), emphasized the importance of extending the requirement for public consultations to draft laws introduced by the MPs.
Currently this law fails to address a critical issue in Ukraine: the absence of effective mechanisms for public participation (influence) over legislative drafts initiated by MPs.
The concept behind the consultation process is straightforward – publishing a draft law for 15 working days to allow for at least electronic consultations. Afterward, the decision remains at the discretion of the author-MP. This process helps minimize the risk of errors and blatant lobbying by providing public organizations, businesses, local self-government bodies, and active citizens with at least the opportunity to “reach-out” to the authors of draft laws.
Thus, the CPLR calls the Cabinet of Ministers and the Verkhovna Rada of Ukraine to develop and adopt amendments to the Law of Ukraine “On public consultations” to ensure its mandatory application to legislative initiatives submitted by MPs.
Lowering The Evidentiary Requirements For Specialist Opinions In Criminal Proceedings Could Adversely Affect Fair Trial
Event
On October 9, the Verkhovna Rada adopted the draft law on amendments to the Criminal Procedure Code of Ukraine aimed at optimizing the involvement of specialists during pre-trial investigations (registration №1007). On October 15 it was submitted for the President’s signature.
The draft law provides for the possibility of using a statement or opinion of a specialist during pre-trial investigations, including prior the entry of pre-trial investigation information. The initiators of the draft law believe that the stated objective can be achieved, particularly through amendments to:
1) part 3 of Article 71 of the CPC of Ukraine: allows specialists to issue statements and opinions on matters within the scope of his/her knowledge regarding the identification of individuals, weapons, narcotic substances, explosive devices, items, substances and traces of explosion during pre-trial investigation of criminal offenses;
2) Part 2 of Article 99 of the CPC of Ukraine: clarifies that specialist statements and opinions are classified as documents and therefore considered evidence;
3) Part 3 of Article 214 of the CPC of Ukraine: added the words “obtaining a statement, opinion of specialist” following the words “review incident scene”. Currently, review of incident scene is the only investigative action that can be carried out prior to entering information into the Unified State Register of Pre-Trial Investigations. Thus, it is proposed to obtain a statement, a specialist opinion before entering information into the Register, which will hold the status of evidence thereafter.
Thus, the legislator intends to equate the specialist opinion with the expert’s opinion in matters that previously fell under the subject of technical expertise (such as the identification of individuals, weapons, narcotic substances, explosive devices, items, substances, and traces of explosion).
CPLR’s assessment
The issue addressed by the draft law really hinders the pre-trial investigation of criminal offenses. As noted in the explanatory note to the draft law, there is a “significant overload of expert institutions and a lack of sufficient numbers of experts conducting forensic medical, immunological, cytological, genetic, construction-technical, ballistic, and explosive examinations, which considerably delays the timelines for conducting pre-trial investigations”. However, addressing this issue should not come at the expense of lowering the requirements for evidence in criminal proceedings.
Regarding the final version of the adopted law
It is worth noting that the text signed by the Chairman of the Verkhovna Rada raises concerns due to the inclusion of a single comma that was missing in the original draft law. Specifically, Part 4 of Article 71 is proposed to be amended to include paragraph 9, which states: “to provide statements and opinions on matters within the area of his/her knowledge, regarding the identification of individuals, weapons, ammunition, explosives, explosive devices, traces of explosions or shots, narcotic substances, psychotropic substances, their analogs, and precursors, as well as potent medicinal products”. The presence of a comma before the word “regarding” could be interpreted as suggesting that it initially refers to a general rule “opinions on matters within the area of his/her knowledge”, while the subsequent list of expertise merely serves as examples of such opinions. This interpretation suggests that a specialist could issue opinions on a broader range of topics, which would hold the same legal weight as expert opinions as evidence in criminal proceedings. Such a provision could lead to significant abuses by the prosecution, allowing for the substitution of expert opinions with those of specialists.
Regarding the lowering of evidence requirements in criminal proceedings (court expert activity)
The central idea of this legislative initiative raises significant concerns, particularly regarding the violation of fundamental principles of court expert activity. Unlike specialists, whose legal, organizational, and financial frameworks are not governed by Ukrainian legislation, experts are subject to high standards regarding the guarantees of their activities. The Law of Ukraine “On court expert activity” establishes a system of safeguards related to access to the court expert profession, conduct of court expert activity and court expert evaluation, bringing an expert to disciplinary responsibility and deprivation of the right to carry out expert activities, the rules of professional ethics, etc. Moreover, there is a state policy aimed at strengthening these guarantees, for example, by creating a system of self-regulatory of court experts and introducing peer review of expert opinions etc. (paragraph 4.7.1 of the Action Plan aimed at implementing the Comprehensive Strategic Plan for the Reform of Law Enforcement Agencies for 2023-2027, approved by the Cabinet of Ministers of Ukraine on August 23, 2024, No. 792-r).
Opinions of the specialists serve a supplementary (consultative) role and are not obligatory for the court. Specialists may only be engaged to provide direct technical assistance, such as photography, creating diagrams, plans, and drawings, or collecting samples for examination. In contrast, the role of an expert is a professional activity aimed at obtaining new information about the factual circumstances of a case and encompasses all instances where specialized knowledge is required in criminal proceedings. Therefore, the expert is subject to high requirements, is responsible in a specific manner, and expert opinions are, naturally, considered as evidence in criminal proceedings.
Thus, the adopted law equates the status of specialists and court experts, blurring the distinctions between them.
Regarding the adversarial principle in criminal proceedings
The adversarial nature is one of the fundamental principles of criminal proceeding (Article 22 of the CPC of Ukraine). It means the independent defense of legal positions, rights, freedoms, and legitimate interests by both the prosecution and the defense, using the means prescribed by the Code. The adversarial framework ensures a balanced representation of both parties in the criminal process. Both parties in a criminal case have the right to challenge the results of court expert evaluation and the opinions of court experts, including during the expert’s testimony (Article 356 of the CPC of Ukraine). However, the defense will lose this opportunity if the prosecution involves a specialist, as current legislation does not provide a procedure for questioning specialists.
Therefore, the adopted draft law №10075 poses a number of risks to the quality of criminal trials, as it effectively equates the expert opinion and opinions of specialists as evidence. In addition, this undermines the adversarial nature of the process, given the fact that currently there is no procedure for questioning a specialist in court. While such amendments might be justified under martial law, especially during investigations of international crimes, the adopted version of the law poses more threats to the principles of fair justice than it offers in benefits.
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