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Weekly analytics for 16 – 22 March 2021

16.03.2021

Weekly analytics 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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Weekly analytics for 16 – 22 March 2021

Changing the reference electronic text of the original law without a decision of the Verkhovna Rada is a service forgery

Event

Law No. 2617-VIII of 22.11.2018 supplemented the Criminal Code of Ukraine (hereinafter – the CC) by Article 286-1 “Driving under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction”, which entered into force on 01.07.2020.

Taking into account that on the same day it was included in the Criminal Code in accordance with the rule set out in Part 2 of Art. 3 of the CC (“Laws of Ukraine on criminal liability, adopted after the entry into force of this Code, are included in it after their entry into force”), the Law No.720-IX of 17.06.2020, which contained an order to exclude from the Law No.2617-VIII of 22.11.2018 “sub-item 171 of item 2 of section I” and which came into force only on 03.07.2020, could not change this situation – it was necessary to adopt a new law on exclusion from the Criminal Code of Article 286-1. The Verkhovna Rada did not do that.

Nevertheless, on February 16, 2021, the Verkhovna Rada adopted the Law No.1231-IX, according to which it again supplemented the CC by Article 286-1 “Violation of traffic safety rules or operation of transport by persons driving while intoxicated.”

As of March 17, 2021, both Articles 286-1 were available in the reference electronic text of the original Criminal Code, posted on the official website of the Verkhovna Rada. At the same time, according to the Rules of Procedure of the Verkhovna Rada:
– The staff of the Verkhovna Rada ensures the maintenance of the database of normative and legal information “Legislation of Ukraine”, which contains, inter alia, reference electronic texts of the original acts adopted by the Verkhovna Rada. The reference electronic text is the text of the act adopted by the Verkhovna Rada, which is stored in the form of a computer file, the integrity of which is ensured by special means of information protection (Part 5 of Article 7);
– Laws signed by the President of Ukraine are published in the newspaper “Voice of Ukraine” and in the Gazette of the Verkhovna Rada of Ukraine, as well as posted on the official website of the Verkhovna Rada. Publication of laws and other acts of the Verkhovna Rada in these print media is official (Part 1 of Article 139).

However, as of March 19, 2021, the reference electronic text of the original Criminal Code, posted on the official website of the Verkhovna Rada, contained only one article 286-1 as amended by Law No.1231-IX of February 16, 2021. The second article 286-1 was excluded from this text and this was probably done on the basis of the explanation of the Committee on Law Enforcement No.04-27/3-2021/97637 of 18.03.2021 “On certain provisions of the Law of Ukraine “On Amendments to some legislative acts of Ukraine on strengthening the responsibility for certain offenses in the field of road safety” No.1231-IX of February 16, 2021″.

The explanation states, in particular: “The Committee considers that from 3 July 2020, Article 286-1 of the Criminal Code of Ukraine (Driving under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction) is excluded. Thus, the Committee considers that on March 17, 2021 the Criminal Code of Ukraine was supplemented by a new article 286-1 (Violation of traffic safety rules or operation of transport by persons driving while intoxicated), which is applicable in the wording of the Law No.1231- IX».

By the way, this is not the first case when the same norms appear in the same law, which is under the competence of the Verkhovna Rada Committee on Law Enforcement. For example, according to the Law No.187-IX of 04.10.2019 part 1 of Art. 284 of the Criminal Procedure Code of Ukraine is supplemented by paragraph 3-1, despite the fact that the paragraph with the same number and similar content has already appeared in it earlier – in accordance with the Law of No. 2617-VIII of 22.11.2018.

CPLR assessment

The explanation of one of the Verkhovna Rada committees as to whether or not a certain article is excluded from the law is not a ground for interfering in the reference electronic text of the Law and in no way corrects the situation with the appearance in the Criminal Code of two articles with the same number and similar content, which also partially repeats the content of Article 130 of the Code of Administrative Offenses of Ukraine “Driving vehicles or vessels by persons who are in a state of alcohol, drugs or other intoxication or under the influence of medicines that reduce their attention and speed of reaction”.

Negative consequences of this situation may appear and are already manifested in the contradictory case law of liability for driving under the influence of alcohol or other intoxication: some courts release a person from administrative liability with reference to the law requiring him/her to be prosecuted, while others, on the contrary, release a person from criminal liability with reference to the law, which requires bringing him/her to administrative responsibility – as a result, such persons do not bear any responsibility.

According to Art. 21 of the Law “On Committees of the Verkhovna Rada of Ukraine”, committees have the right to provide clarifications on issues related to their jurisdiction only on the application of the provisions of the laws of Ukraine, but not on the validity of laws. In addition, any clarification by the committees does not have the status of an official interpretation.

The Rules of Procedure of the Verkhovna Rada (Article 128) stipulate that after the adoption of a law as a whole, any changes to its text (except for the correction of grammatical or technical errors) are allowed only upon the proposal of the Chairman of the Verkhovna Rada according to the procedure, stipulated by this Rules of Procedure (Article 131). There are no other possibilities for changing the reference electronic text of the original law, including Criminal Code.

Subclause 4 item 2 of the Scheme of entering documents into the database of normative and legal information “Legislation of Ukraine” (Appendix 3 to the order of the Chairman of The Verkhovna Rada of Ukraine No.19 of  08.02.2021) establishes the procedure according to which, if changes to the original text of the law cannot be made for reasons independent of the database administrator (in particular, similar changes have already been made by another law that came into force earlier), the reservation is included “Changes adopted by the Law of Ukraine (details) cannot be made (the reason is indicated)”. Information on the impossibility of making changes for technical reasons is drawn up in a letter sent to the Main Committee of the Verkhovna Rada of Ukraine and the Main Legal Department of the Office.

This is how the staff of the Verkhovna Rada has used it at least twice, mentioning in the notes to Articles 254 and 351 of the Criminal Code: “Amendments adopted by the Law of Ukraine No. 2617-VIII of 22.11.2018 cannot be made…”.

It is obvious that on the basis of this letter people’s deputies of Ukraine – members of the Committee on Law Enforcement must initiate the development and adoption of the Law on Amendments to the Criminal Code (in particular, on the abolition of Article 286-1 of the Criminal Code as amended by Law No. 2617-VIII of 22.11.2018).

As this has not been done, it is advisable to set up a Temporary Investigation Commission of the Verkhovna Rada to investigate the fact of falsification of the law and development of the measures to prevent similar cases in the future.

At the same time, the relevant prosecutor, having revealed the fact of entering into the official document – the reference electronic text of the original Criminal Code, posted on the website of the Verkhovna Rada, of knowingly false information, is obliged to enter information about the crime under Art. 366 of the Criminal Code, to the Unified Register of Pre-trial Investigations and start an investigation.

In a country of selective justice, the stigma imposed by the state should be treated with the utmost caution

Event

On February 18, 2021, the Verkhovna Rada adopted the Law “On Amendments to Certain Legislative Acts of Ukraine Concerning the Implementation of the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention)”, which supplemented the Criminal Code of Ukraine (hereinafter – the CC) with new relevant provisions.

CPLR assessment

The adopted Law inaccurately implements the provisions of the Lanzarote Convention and contradicts the requirements of legal certainty and proportionality, and therefore needs further improvement.

First, this Law does not establish criminal liability for certain acts specified in the Convention. In particular, the following actions are not criminalized:
a) recourse to child prostitution;
b) making a profit from prostitution or other use of a child for the purpose of prostitution. Having established liability only for involving a child in prostitution, the legislator did not take into account that the profit from prostitution of a child may take place in the actions of persons other than those who previously involved him/her in prostitution;
c) recruiting a child for prostitution. In this case, the responsibility is only for involvement (i.e. motivation) in prostitution. The fact that the terms “involvement” and “recruitment” mean different in content acts is confirmed by the names and content of Articles 258-1 and 258-4 of the Criminal Code;
d) the commission by an adult of any acts of a sexual nature not related to the penetration into the body of a person under the age of 16, as well as inducing a child to observe sexual abuse or sexual activity. Only some of such actions will be qualified by individual courts under Art. 156 of the Criminal Code as sexual abuse against children, therefore, there will be contradictory case law.

Second, the following circumstances provided for in the Convention are not recognized as the aggravating circumstances of the relevant offenses:
a) the crime was preceded or accompanied by torture or serious violence;
b) the crime was committed against a particularly vulnerable victim;
c) the crime was committed by several persons who acted together;
d) the crime was committed within a criminal organization;
e) the offender has already been convicted of a crime of a similar nature.

Third, instead of criminalizing the recruitment of children to participate in pornographic performances, encouraging a child to participate in such performances, forcing a child to participate in them, attending pornographic performances involving children, the Ukrainian legislator criminalized the involvement of a child in entertainment event of a sexual nature, forcing a child to participate in such an event, attending a spectacular event of a sexual nature in which the visitor is known to involve a child, and holding such a spectacular event. In this case, a spectacular event of a sexual nature means a public display of sexual products or stage acts, the purpose of which is the embodiment of sexual acts. The Law “On the Protection of Public Morality” stipulates that products of a  sexual nature are any material objects, objects, printed, audio, video products, etc., intended to satisfy a person’s sexual needs. According to the rules for its sale, distribution, advertising, etc. it is equated with products of an erotic nature, i.e., unlike pornographic products, it does not involve vulgar-naturalistic, cynical, obscene fixation of sexual acts, self-serving, special demonstration of genitals, sexual perversions, etc. and does not encourage unworthy instincts.

Fourth, contrary to the principle of proportionality, the legislator has imposed sanctions for the relevant crimes, which are clearly inadequate to the gravity of the crimes. For example, if a person visits a site and watches in one minute a spectacular event of a sexual (not pornographic!) nature involving a child (not necessarily as an actor), he or she may be sentenced to 3 to 6 years in prison – a similar punishment is provided in the Criminal Code for the theft of an aircraft (Part 1 of Article 278), theft of drugs (Part 1 of Article 308), abuse of power or official position, which caused serious consequences (Part 2 of Article 364), obtaining illegal benefits in a significant amount (Part 2 of Article 368) and other serious crimes. Sexual acts committed by an 18-year-old with a 15-year-old who are members of the same family (for example, step-relatives) are punishable by imprisonment for a term of 5 to 8 years – a similar punishment is provided by the Criminal Code for negligent murder of two or more persons (Part 2 of Article 119), intentional grievous bodily harm (Part 1 of Article 121) and organization of mass riots (Part 1 of Article 294). Importation into Ukraine or storage of child pornography for sale, committed by a group of persons with prior conspiracy, is punishable by imprisonment for a term of 9 to 15 years – a similar punishment is provided by the Criminal Code for assault on a law enforcement officer or journalist (Articles 248, 248-1).

It should be reminded that, in addition to the main punishment, persons convicted of a crime against sexual freedom and sexual inviolability of a child are subject, as a rule, to additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, as well as administrative supervision of an extended duration and data on them are stored for life in the Unified Register of Persons Convicted of Crimes against Sexual Freedom and Sexual Inviolability of a Child.

Given the above, it is likely that in a country where justice is often characterized as selective, the “pedophile” stigma may be sought to be used in relation to certain individuals as political opponents, economic competitors, or for revenge.