Weekly analytics for 15 — 21 February
Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combating corruption, criminal justice, etc.
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- Competitive selection of candidates for the position of judges of the Constitutional Court under the Parliament’s quota (update)
- Specialized Parliamentary Committee recommended the draft law «On public consultations» (№4254) for the second reading
- Should illegal circulation of drugs without intent to sell be decriminalized?
Competitive selection of candidates for the position of judges of the Constitutional Court under the Parliament’s quota (update)
On February 17, the Parliament’s Committee on Legal Policy, having considered the matter of admitting candidates for the position of judges of the Constitutional Court of Ukraine under the Parliament’s quota, decided that it is necessary to announce a new competition.
On January 20, the Parliament’s Secretariat announced the beginning of competitive selection of candidates for three vacant positions of judges of the Constitutional Court of Ukraine under the quota of the Parliament. Within 10 days from the publication of this notice, persons who intended to participate in such a selection were to send the documents specified in the second part of Article 10-5 of the Law «On the Constitutional Court of Ukraine».
During January 30 – February 6, the Parliament’s Secretariat published documents of 9 applicants for competitive selection of candidates for the position of judges of the Constitutional Court of Ukraine under the Parliament’s quota:
- Karmaza О. О., member of the Central Election Commission;
- Kopylenko O. L., member of the Parliament of Ukraine;
- Scherbanyuk О. V., Head of the Department of Procedural Law of Yuriy Fedkovych Chernivtsi National University;
- Kvasha О. О., academic secretary of Koretsky Institute of State and Law;
- Sabodash R. B., associate professor of Civil Law Department of the Educational and Scientific Institute of Law of Kyiv National Taras Shevchenko University;
- Klymenko К. О., associate professor of the International Relationship and Social Science of National University of Life and Environmental Science of Ukraine;
- Kyrychenko Y. М., member of the Board of the Centre for Policy and Legal Reform;
- Pavlish P. V., member of the Parliament of Ukraine;
- Nazarov І. V., deputy head of the National Agency for Higher Education Quality Assurance.
However, after reviewing the documents of all candidates, the Parliament’s Committee on Legal Policy admitted only one of them (R.B. Sabodash) to the selection procedure, while the remaining candidates were rejected due to their failure to submit all the required documents in the proper format.
According to the second paragraph of the third part of Article 10-6 of the Law «On the Constitutional Court of Ukraine», the Parliament’s Committee must announce a new competitive selection if fewer than two person are admitted to the competitive selection for one vacant position, which must be done immediately, but not later than twenty days.
The CPLR reminds that on January 25, the President of the Venice Commission sent an official letter to the Head of Verkhovna Rada of Ukraine, Ruslan Stefanchuk, where, among other things, it was pointed that the Venice Commission is not able to nominate one delegate to the Advisory Group of Experts (AGE) in accordance with Law № 2846-IX, since Ukraine did not follow the previous recommendations of the Venice Commission made in its Opinion CDL-AD(2022)054 (see Analysis of the CPLR’s experts «Letter of the President of the Venice Commission to the Head of the Verkhovna Rada of Ukraine. Expert assessment»).
Specialized Parliamentary Committee recommended the draft law «On public consultations» (№4254) for the second reading
The specialized Parliamentary Committee recommended the draft law «On public consultations» (№4254) for the second reading.
Unfortunately, the current version of the draft law has lost one of its main provisions, regarding the duty of MPs to conduct public consultations on their legal initiatives. This is a problem for the Ukrainian system of governance, because a significant number of laws in Ukraine are adopted from among the draft laws submitted by MPs. Imperfect draft laws are frequently introduced in the Parliament, which do not take into account even obvious negative consequences. Unfortunately, ministries submit their draft laws «through the MPs», bypassing the regulatory procedures, horizontal approvals, public discussions, and government committees. This sometimes leads to clearly erroneous steps, as certain draft laws are adopted too fast and in a non-transparent manner.
In developed democracies, the MP-prepared draft laws are an anomaly. Draft laws are developed by the government according to all rules of policy process, because only the executive power has the expertise and other relevant resources. Ukraine should also add transparency and predictability to this process.
Incidentally, the draft law No. 4254 is a government draft. It is very important that its text in the first reading version received a positive opinion from the SIGMA Program, where the need to extend the Law on Public Consultations to the MP’s draft laws have been repeatedly emphasized. Thus, after a significant deterioration of the text of this draft law, we can expect criticism from EU partners.
The essence of the provision on consultations is very simple – to publish the draft law for 15 working days in order to conduct electronic consultations. After that, it is decided at the discretion of the MP author whether to consider something or to ignore everything. But such a mechanism reduces the risks of errors and gross lobbying. After all, civic organizations, businesses, local self-government bodies, and simply active citizens can at least try to «reach out» to the person who initiated the draft legislation.
Therefore, it is hopeful that the Parliament is still able to take a full-fledged step forward and approximate the requirements for individuals who have a right to initiate legislation in terms of public consultations. Therefore, the text of the draft law No. 4254 requires at least two amendments: to eliminate the first paragraph of Part 1 of Art. 8 (which envisions the right, but not the duty of MPs to conduct public consultations) and the reference to Art. 8 in Part 1 of Art. 18 (which allows the introduction of the drafts laws for the Parliament’s consideration, regarding which no public consultations were conducted).
Should illegal circulation of drugs without intent to sell be decriminalized?
On February 17, a draft law «On Amendments to the Criminal Code of Ukraine and the Code of Ukraine on Administrative Offenses regarding improvements in the area of responsibility for illegal production, manufacture, purchase, storage, transportation, or shipment of drugs, psychotropic substances, or their analogues without intent to sell» (registration № 9028) was registered in the Verkhovna Rada.
In general, its provisions come down to the following:
1) to eliminate from the Criminal Code article 309 «Illegal production, manufacture, purchase, storage, transportation, or shipment of drugs, psychotropic substances, or their analogues without intent to sell»;
2) to provide for the responsibility under Art. 44 of the Code of Ukraine on Administrative Offenses (CAO) for «illegal production, purchase, storage, transportation, or shipment of drugs or psychotropic substances without intent to sell», regardless the volume (currently, this article provides for responsibility for these actions in small volumes);
3) to provide for the responsibility under Art. 304 of the Criminal Code (CC) for «involving of minors in the illegal production, manufacture, purchase, storage, transportation, or shipment of drugs, psychotropic substances, or their analogues», as well as for «engaging a minor in the use of drugs, psychotropic substances, or their analogues».
At first glance, the idea of decriminalization of illegal actions involving drugs, psychotropic substances, or their analogues, if such acts are committed without intent to sell, seems attractive.
First, thousands of such actions become an object of pre-trial investigation and judicial proceedings each year, and the state spends considerable resources on this. For example, according to the statistics of the General Prosecutor’s Office, in 2022, out of 132,418 persons who were declared as suspects, 11,380 (8.8%) persons were declared suspects precisely under Art. 309 of the Criminal Code. And according to court statistics, in 2022, 6,516 persons (out of 49,679) were convicted under Art. 309 of the Criminal Code – that is, one out of almost every eight convictions.
Second, we have frequently heard or read about cases of drug or psychotropic substances being planted (because it is really quite easy to do).
Third, the vast majority (82.3%) of these convicts are either released from punishment in general or punished with a fine (and it is doubtful that the fines are actually collected).
Fourth, Ukraine has no international obligations regarding the criminalization of illegal circulation of drugs, psychotropic substances, or their analogues without intent to sell.
Fifth, the specified decriminalization could release human, financial, and other resources of law enforcement agencies for the detection and investigation of more serious crimes related to drugs and psychotropic substances.
However, the draft law № 9028 fails to take into account some aspects.
1. The proposal to decriminalize the illegal production, purchase, storage, transportation, or shipment of drugs or psychotropic substances without intent to sell regardless of the volume of these drugs or substances is extremely dubious.
According to this approach, the production, storage, etc. of neither 100 kilograms of heroin nor a ton of cocaine, etc. will be punished, as long the person produced it «for personal use», «for later», «for stockpiling» etc. and no evidence of intent to sell has been collected.
2. The vast majority of persons prosecuted for illegal actions involving drugs, psychotropic substances, or their analogues are employable individuals, but they are not employed or enrolled in studying, unemployed, retired, and persons with disabilities, as well as women.
In 2022, the employable individuals who are not employed or enrolled in studying, as well as other mentioned categories of persons made up 81.5% (5,311 out of 6,516) among those who were brought to criminal liability under Art. 309 of the Criminal Code, and 81.0% (4,037 out of 4,984) among those who were brought to administrative responsibility under Art. 44 of CAO.
These are precisely the persons who do not pay and will not pay the fines envisioned as the main penalty in the proposed new version of Art. 44 of the CAO. It will also not be possible to apply the alternative penalty in the form of community service provided for by the draft law № 9028 to a large number of this individuals, because this type of penalty is not assigned to persons with disabilities, pregnant women, women over the age of 55, and men over the age of 60. In 2022, only 7 people (0.1%) were convicted to community service under Art. 309 of the Criminal Code and only 206 people (4.1%) under Art. 44 of the CAO, respectively.
Furthermore, according to the draft law, the amount of the fine is reduced 20-25 times. Currently, according to Art. 309 of the Criminal Code, it ranges from UAH 17,000 to UAH 85,000, while in the new version of Art. 44 of the CAO, according to the vision of the draft law’s authors, it will range from UAH 850 to UAH 3,400.
3. The proposal to establish the responsibility under Art. 304 of the Criminal Code for the involvement of minors in the illegal circulation of drugs, psychotropic substances, or their analogues does not take into account that Art. 307 of the Criminal Code already provides for responsibility for similar actions committed with the involvement of a minor child between the age of 14-18 (part 2) or a minor child under the age of 14 (part 3).
Accordingly, the proposal to establish responsibility under Art. 304 of the Criminal Code for the involvement of a minor in the use of drugs, psychotropic substances, or their analogues also does not take into account the existence of provisions of part 2 of Art. 315 of the Criminal Code, which provides for punishment for a minor’s incitement to use such drugs, substances, or their analogues.
Furthermore, it is not clear why, according to the draft law, responsibility attaches if only one minor is involved in the use, whereas at least several minors must be involved in illegal production, purchasing etc. in order to bring a person to responsibility.