Weekly analytics for 18 – 25 May 2020
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
- People's deputies want to improve the criminal responsibility of judges for knowingly unjust decisions
- Parliamentarians request the Constitutional Court of Ukraine to assess the constitutionality of the appointment of the NABU Director
- Parliament is planning unjustified changes in the jurisdiction of the State Bureau of Investigation
People's deputies want to improve the criminal responsibility of judges for knowingly unjust decisions
Event
On May 18, the draft law “On Amendments to the Criminal Code of Ukraine Concerning Responsibility for a Prejudiced Court Decision issued by a Judge (Judges)” was submitted to the Parliament. It proposed a new wording of Article 375 of the Criminal Code of Ukraine (hereinafter – the CC), namely to provide responsibility for issuing a prejudiced court decision by the judge in which:
- the norm of substantive law was knowingly applied incorrectly;
- a gross violation of procedural law was committed;
- there is an obvious inconsistency of the court’s conclusions with the factual circumstances of the case.
The moment of the court decision is also determined, which is the compilation of its full text and proclamation/sending (delivery) to the participants or including in the case file, if the decision was not sent.
CPLR assessment
The current version of Article 375 of the Criminal Code of Ukraine provides for criminal responsibility of a judge for issuing a knowingly unjust court decision. The Criminal Court of Cassation of the Supreme Court stated in one of its decisions: “the concept of “unjust court decision” is not defined at the legislative level, … there are no grounds to associate it with such concepts as “illegal” and “ungrounded”…. … the definition of “unjust court decision” in combination with an indication of the “advance knowledge” of its ruling emphasizes the purposeful nature of the judge’s criminal actions, his/her conscious will and intention to act contrary to the substantive or procedural law and (or) factual circumstances established in the case, by ruling a court decision, which in essence cannot be and is not an act of justice. The unjustness of a court decision may be evidenced by intentional misinterpretation of the facts of the case, distortion of the facts, etc.”
In practice, law enforcement agencies use this article to put pressure on judges, as noted by GRECO experts (paragraphs 114, 115 of the Report on the results of the fourth round of Ukraine’s assessment (June 2017). Experts stressed that this rule is a particular threat to judicial independence and recommended to repeal it or: “otherwise ensure that this and any other criminal offense provision criminalize only intentional misconduct in the judiciary and that law enforcement agencies do not abuse such rules to unlawfully influence and put pressure on judges.” Experts were guided by the Council of Europe’s standards, which stipulate that “the interpretation of the law, the assessment of facts or evidence by judges to decide a case should not be a ground for criminal liability, except in cases of criminal intent.”
The proposed version of Article 375 of the Criminal Code of Ukraine partially takes into account the above recommendations (except for the mandatory presence of intent to make a prejudiced decision with a gross violation of procedural law). The draft law stipulates that criminal responsibility arises for the issuance of a prejudiced court judgement, and then specifies its forms (types) – a sentence, ruling or resolution. Based on the content of procedural codes, court judgements can also be made in the form of a court decision (adopted by the court of first instance in civil, commercial and administrative cases) and a court order (adopted by the court of first instance in civil and commercial cases). However, these forms of court judgements are not covered by the proposed wording of Article 375 of the CCU, which means that criminal liability for intentional violations in their adoption does not occur.
In addition, procedural codes establish the following requirements for court decisions: legality (compliance with substantive and procedural law), validity (compliance of the facts established by the court with properly assessed evidence), motivation (providing sufficient arguments with assessment of the positions of the parties). Deliberate violation by a judge of these requirements with malicious intent while issuing a court decision denies the very essence of justice, and therefore should result in criminal liability of the judge.
Given all the above, it is advisable to support the draft law upon its further revision.
Parliamentarians request the Constitutional Court of Ukraine to assess the constitutionality of the appointment of the NABU Director
Event
On May 20, the Constitutional Court of Ukraine received a constitutional petition of 51 people’s deputies of Ukraine on the compliance with the Constitution of Ukraine of the Decree of the President of Ukraine “On the Appointment of A. Sytnyk as Director of the National Anti-Corruption Bureau of Ukraine” of April 16, 2015 No. 218/2015.
The subject of the constitutional petition requests to recognize that the said Decree is contrary to the Constitution (is unconstitutional)
CPLR assessment
As already noted by the CPLR experts, the procedure established by the Verkhovna Rada of Ukraine for the formation of NABU, the election and appointment of the Director of the Bureau raises reasonable doubts about its constitutionality. After all, the Constitution provides for an exhaustive list of powers of the Verkhovna Rada and the President, without any possibility of expanding these powers by other normative legal acts, as the Constitutional Court has repeatedly emphasized in its decisions of April 10, 2003 No. 7- рп/2003; December 25, 2003 No. 22-рп/2003; April 07, 2004 No. 9- рп/2004; May 16, 2007 No. 1-рп/2007; July 08, 2008 No. 14-рп/2008; October 02.2008 No. 19-рп/2008; October 08, 2008 No. 21-рп/2008; July 07, 2009 No. 17-рп/2009; September 15, 2009 No. 21-рп/2009; December 17, 2009 No. 32- рп/2009; June 10, 2010 No. 16-рп/2010; June 13, 2019 No. 5-p/ 2019, etc.
In addition, the Constitutional Court stated in its conclusion of December 16, 2019 No. 7-v/2019 that the fact of pre-trial investigation bodies being even under the indirect subordination to the President (through the appointment of their heads, in particular) threatens the independence of these bodies and leads to concentration of executive power with the President. This in turn disrupts the balance of constitutional powers between the President and the Cabinet of Ministers and effectively creates a parallel executive branch subordinated to the President. As a result, such a concentration of power weakens the constitutional guarantees of rights and freedoms. On the other hand, the separation of powers is the main means and indispensable condition for preventing the concentration of power, and therefore an instrument against its abuse for the adequate exercise of human rights and freedoms.
At the same time, the Constitutional Court has a somewhat contradictory practice in considering submissions on the constitutionality of acts of the President that have an individual legal nature.
In its decision of 22 April 2008 No. 9-рп/2008 the Constitutional Court noted that non-normative legal acts, in contrast to normative ones by their nature, do not establish general rules of conduct, but provide specific instructions that address an individual or legal entity, apply once and exhaust their action after implementation. Therefore, in the opinion of the Constitutional Court, the relevant Decrees cannot be subject to constitutional control (paragraph 5 of the motivating part of the Decision). At the same time, in the decision of March 27, 2002 № 7-рп/2002, the Constitutional Court emphasized that according to the provisions of part two of Article 147, part one of Article 150 of the Constitution, the powers of the Constitutional Court include, in particular, verification of all legal acts of the Verkhovna Rada and the President both in terms of their legal content and compliance with the constitutional procedure for their consideration, adoption and entry into force (paragraph 5 of the motivating part of the decision).
Parliament is planning unjustified changes in the jurisdiction of the State Bureau of Investigation
Event
On May 20, the Verkhovna Rada of Ukraine adopted in the first reading the draft law No. 2560, which proposes to clarify (change) the jurisdiction of the State Bureau of Investigation.
Draft law supplements part 4 of Article 216 of the Criminal Procedure Code of Ukraine with a number of additional types of offenders in respect of which the SBI investigates criminal offenses.
CPLR assessment
Jurisdiction of the pre-trial investigation bodies, as defined in Article 216 of the CPC of Ukraine, is nothing but a delineation of the specialization of these bodies. As a general rule, jurisdiction is delineated by the subject matter principle, where the “subject” is comprised by certain components of criminal offenses. Exceptions to the general rule are the State Bureau of Investigation, whose jurisdiction is rather subjective (except for war crimes), and the National Anti-Corruption Bureau of Ukraine, whose jurisdiction is a combination of subject-matter and offender-based principle. However, even in the case of NABU, the basic criterion for determining jurisdiction is a certain type of offender.
Article 480 of the CPC is the main regulatory guideline for determining the scope of offenders in respect of which a special procedure of criminal proceedings is established. Although Article 216 of the CPC is not currently limited to the list prescribed in Article 480, the approach to classifying a particular offender as “special” is the same for both of these articles. In particular, in accordance with Articles 216 and 480, the category of “special” covers only the highest positions and other positions in the executive authorities, whose powers extend to the entire territory of Ukraine (for example, servicemen or law enforcement officers).
On the other hand, the draft law No. 2560 unreasonably goes beyond this approach and proposes to refer to the category of “special” the positions of local government officials, which are assigned to the first and second categories of positions; heads of local state administrations, their first deputies and deputies; heads of permanent subsidiary bodies formed by the President of Ukraine and their deputies.
In addition to the conceptual problems, it should be noted that from the point of view of law enforcement, increasing the number of entities under investigation by the SBI without assessing the current workload on investigative units may adversely affect the effectiveness of this body.