Weekly analysis for 20 – 26 November

Drawbacks of Rapid Legislating: Fixing One Issue, Breaking Another

Event

On November 21, the Law “On amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and Other Legislative Acts of Ukraine regarding the revocation of state awards for promotion or propaganda of the aggressor state or committing other unlawful acts against Ukraine”of November 20, 2024 (hereinafter – the Law on revocation of state awards) came into effect. This law introduces a new type of additional punishment – the revocation of state awards of Ukraine. It also provides a new version of Article 77 of the Criminal Code of Ukraine (hereinafter – the CC) and amends the Criminal Procedure Code of Ukraine, the Criminal Execution Code of Ukraine, the Law “On state awards of Ukraine”, and several other legislative acts. Notably, these amendments were made in violation of Part 6 of Article 3 of the Criminal Code, which stipulates that changes to Ukraine’s legislation on criminal liability may only be made through laws  that specifically amend the CC and/or the criminal procedure legislation of Ukraine, and/or the legislation on administrative offenses.

CPLR’s assessment

The Law on revocation of state awards is overall needed. However, after its adoption, another important provision was removed from the CC. During the vote on the Law on revocation of state awards, lawmakers failed to take into account the amendments to Article 77 introduced by the Law “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine regarding the improvement of regulations on plea bargaining in criminal proceedings related to corruption and corruption-related criminal offenses” of October 29 (hereinafter – the Law on plea bargaining; effective on November 1, 2024 and analyzed here).

According to this law, Part 2 was added to Article 77 of the CC, which stipulates that if an individual is granted probation after a conviction based on a plea agreement for a corruption-related offense and the additional punishment is mutually agreed upon by the parties to the agreement, an additional penalty in the form of confiscation of property may also be imposed.

These amendments were supported by anti-corruption agencies and the public and had a European integration status. The Law on plea bargaining was initiated, among others, by the head of the Sluha Narody faction in the Verkhovna Rada, as well as the heads of the parliamentary committees on law enforcement and anti-corruption policy. The draft law, registered on September 17 under № 12039, was adopted as a basis on October 9 with an expedited preparation timeline, and fully passed by the parliament on October 29. At that time, the previous version of Article 77 of the CC remained in force.

The draft Law on revocation of state awards (reg № 11410 of July 16) was included in the parliamentary agenda on September 3. The comparative table for the second reading was reviewed by the committee on August 30, and the comments from the Main Legal Department of the Verkhovna Rada were signed on September 2. Similarly, at that time, the previous version of Article 77 of the CC was still in effect.

Thus, the draft Law on revocation of state awards was prepared for the second reading before the draft Law on plea bargaining was even registered. However, it was passed after the adoption of the Law on plea bargaining. As a result, during the adoption of the Law on revocation of state awards, lawmakers were required to consider the revised version of Article 77 of the CC, as mandated by Article 122 of the Rules of Procedure of the Verkhovna Rada of Ukraine.

This error can now only be corrected by adopting a new law to amend Article 77 of the CC and reinstate Part 2 in the wording introduced by the Law on plea bargaining. On November 25, members of parliament submitted the relevant draft law (reg № 12243).

To prevent similar issues in the future, the Verkhovna Rada should refrain from introducing complex amendments to criminal liability legislation using expedited procedures. Furthermore, relevant committees must exercise greater diligence in tracking changes to legislation within their jurisdiction.