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Weekly analytics for 2 – 9 March 2021

10.03.2021
General news /
CPLR news

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.

If you want to receive expert analytics for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua (Ivan Holod, Сommunication manager).


Weekly analytics for 2 – 9 March 2021



Driving while intoxicated – is it a crime? Administrative offence? Criminal offense? In the coming days the legislation may become even more confusing


Event

On February 16, 2021, the Verkhovna Rada amended some legislative acts of Ukraine to strengthen liability for certain offenses in the field of road safety.

Article 130 of the Code of Ukraine on Administrative Offenses (hereinafter – the Code of Administrative Offenses) is set out in a new version, according to which, in particular, the following actions are recognized as administrative offenses:
a) driving vehicles by persons under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce their attention and speed of reaction;
b) transfer of control of the vehicle to a person who is in a state of intoxication or under the influence of such medicines;
(c) refusal of the person driving the vehicle to be examined for such intoxication or for the use of such medicines.

At the same time, the Criminal Code of Ukraine (hereinafter – the CC of Ukraine) was again supplemented by Article 286-1, although with a new title “Violation of traffic safety rules or operation of transport by people who drive while intoxicated.”

CPLR assessment

The entry into force of this Law (which may happen in the coming days, because it was sent to the President for signature on February 24) will cause serious negative legal consequences. Legal uncertainty will lead to the fact that in order to mitigate their responsibility, persons convicted of crimes under Art. 286-1 (as amended by the Law of 16.02.2021) will require reclassification of the acts committed by them under Art. 286 of the Criminal Code of Ukraine and Art. 130 of the Code of Administrative Offenses, and persons convicted of crimes under Art. 286-1 (as amended by the Law of 18.11.2018) – under Art. 130 of the Code of Administrative Offenses, and all of them together will eventually reasonably appeal to the European Court of Human Rights with a complaint of violation of § 1 of Art. 6 of the ECHR “Right to a fair trial”.

1. Two articles will appear in the Criminal Code of Ukraine with the same number – 286-1, but with different titles and content. Similarly, the Code of Administrative Offenses will have two articles 130 with different titles and content.

It should be reminded that according to the Law of November 18, 2018, the CC of Ukraine has already been supplemented with Article 286-1 having the title “Driving under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction.” It recognized the following actions as criminal offenses:
1) driving under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction,
2) transfer of control of the vehicle to a person who is in a state of intoxication or under the influence of such medicines,
3) refusal of the person driving the vehicle to pass a medical examination for intoxication or to use appropriate medicines,
4) the use by a driver of a vehicle after an accident with his/her participation of alcohol, drugs or medicines made on their basis (except for those that are part of the officially approved first aid kit or prescribed by a medical professional),
5) the same (paragraph 4) – after the vehicle has been stopped at the request of a police officer, before the authorized person conducts a medical examination to establish the state of alcohol, drugs or other intoxication or the use of medicines.

The same Law of 18.11.2018 sets out in a new version of Article 130 of the Code of Administrative Offenses, which excludes administrative liability for driving while intoxicated.

By the law of June 17, 2020, the Verkhovna Rada intended to repeal the amendments to Art. 130 of the Code of Administrative Offenses and by July 1 to remove Article 286-1 from the Criminal Code of Ukraine. However, due to the fact that the President of Ukraine signed this Law only on July 2, 2020, it was not possible to do so.

The Constitution of Ukraine, in particular Art. 94, determines that “the law shall enter into force … not earlier than the day of its publication.” As of July 3, 2020 (the day of publication of the Law of June 17, 2020), the Law of November 18, 2018 was in force for two days.

In consequence, the extremely contradictory practice of the application of the law, which is not typical for a state governed by the rule of law, has developed.

Thus, some courts began to apply in appropriate cases Article 286-1 of the Criminal Code of Ukraine as amended by the Law of 18.11.2018, and others – Article 130 of the Code of Administrative Offenses in the version that was in force before the entry into force of the Law of 18.11.2018.

At the same time today (appeal date – 7.03.2021) on the page of the Criminal Code of Ukraine in the database of the Verkhovna Rada “Legislation of Ukraine” there is 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 “in the wording of the Law of 18.11.2018.

At the same time, the Committee of the Verkhovna Rada of Ukraine on Law Enforcement Activities in its Explanation dated 15.07.2020 noted that “from 3.07.2020 Article 130 of the Code of Administrative Offenses is to be applied in the wording in force before the Law of 18.11.2018 and Article 286-1 of the CC of Ukraine is excluded.” The Committee justified this by the fact that the Law of 17.06.2020 allegedly removed from the Law of 18.11.2018 the provisions that amended Article 130 of the Code of Administrative Offenses and included Article 286-1 in the Criminal Code of Ukraine.

In fact, this is not the case, because instead of directly deleting Article 286-1 from the Criminal Code of Ukraine, which at that time was already “in the body” of this Code, and directly returning Article 130 in its previous version to the Code of Administrative Offenses, the Law of 17.06.2020 deleted sub-items 2–4, 7, 171 of item 1 of part I of the Law of 18.11.2018. Given the principles of legality and legal certainty, this is not the same thing, because the Law of 18.11.2018 is a law amending other laws. Pretending that the current Criminal Code of Ukraine does not have Art. 286-1 is the same as two days after properly recording the fact of driving while intoxicated to prove that the driver was sober, because he is sober now.

2. According to Article 286-1 of the Criminal Code of Ukraine as amended by the Law of 16.02.2021, violation of traffic safety rules or operation of transport by a person driving a vehicle in a state of alcohol, drugs or other intoxication or under the influence of medicines that reduce attention and speed of reaction, is considered a crime if such violation caused moderate or severe bodily injury to the victim, or death of a person, or death of several persons.

At the same time, the current Criminal Code of Ukraine contains Article 286 “Violation of traffic safety rules or operation of transport by persons driving vehicles”, according to which a crime is a violation of traffic safety rules or operation of transport by a person driving a vehicle that caused moderate or severe bodily injury to the victim, or death of a person, or death of several persons.

Therefore, violation of traffic safety rules or operation of transport by a person driving a vehicle in a state of alcohol, drugs or other intoxication or under the influence of medicines that reduce attention and speed of reaction, in the event of the above consequences will require qualification at the same time under two articles of the Criminal Code of Ukraine – Art. 286 and Art. 286-1, as both of these articles provide for liability for such an act (traffic safety rules explicitly prohibit driving while intoxicated or under the influence of these medicines). And this contradicts Art. 61 of the Constitution of Ukraine, according to which “no one can be twice brought to legal responsibility of the same kind for the same offense.”

In order to avoid violation of the Constitution of Ukraine, the legislator had to supplement Part 1 of Art. 286 after the words “Violation of traffic safety rules or operation of transport by a person driving a vehicle”, the words “except as provided (or “in the absence of signs of a crime provided”) by Article 286-1 of this Code.”



People's deputies took the first step towards the formation of a dependent HQCJ


Event

On March 3, the Verkhovna Rada adopted in the first reading the draft law No.3711-d “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and some laws of Ukraine on resumption of the work of the High Qualification Commission of Judges of Ukraine”. As previously reported by CPLR experts, the draft law provides that:

–   The High Qualification Commission of Judges (hereinafter – HQCJ) will consist of 16 members, 8 of whom must be appointed from among current judges/retired judges;
–  competitive selection to the HQCJ will be held in two stages. At the first stage, the Competition Commission on Integrity will select candidates on the basis of integrity and recommend at least two candidates for one vacant position of a member of the HQCJ. In the second stage, the High Council of Justice (hereinafter – HCJ) will evaluate candidates on the basis of professional competence and determine the winners of the competition;
–   the Competition Commission should include 3 persons from among judges/retired judges proposed by the Council of Judges of Ukraine and 3 persons proposed respectively by the Council of Prosecutors of Ukraine, the Council of Advocates of Ukraine, the National Academy of Legal Sciences of Ukraine represented by the Presidium. In the first competitive selection for the HQCJ, international experts will take part instead of members of the Competition Commission according to the quota of lawyers, prosecutors and scientists. The members of the Competition Commission will be appointed by the HCJ, and their activities will be supported by the staff of the Council Secretariat;
–   Regulations on the competitive selection, the methodology for assessing the integrity of candidates will be approved by the HCJ upon the proposal of the Competition Commission.

In addition, it is proposed to give the HCJ the power to determine the number of judges in courts, in particular the Supreme Court, and to restore the right of the HQCJ to independently approve documents related to its activities.

CPLR assessment

Back in August 2020, the Parliament ratified the Memorandum with the European Union, according to which Ukraine committed to create a new HQCJ through a transparent selection procedure conducted by a competition commission with international participation. In October 2020, the Venice Commission and the Directorate-General for Human Rights jointly stated that the HQCJ should remain independent until the HCJ is reformed. Subsequently, in January 2021, the G7 ambassadors recommended the formation of a new HQCJ by an independent competition commission with international experts, and in February the European Parliament in its resolution on the state of Ukrainian reforms stressed the importance of transparent selection of new HQCJ members and international experts in this competition.

However, draft law No.3711-d does not, in fact, take these obligations and recommendations into account. The problem with this draft law is, first of all, that it offers an inefficient and biased mechanism for forming a new HQCJ, under which the competitive selection will be held under the full control of the unreformed HCJ, which will determine the winners of the competition. The participation of international experts in the competition commission is purely nominal, as they will not have a decisive vote. In addition, there is a high risk that international organizations do not even delegate their representatives to the competition commission. Such a case already took place during the attempt to form the HQCJ in December 2019 – February 2020, when the HCJ by approving the rules of the competitive selection completely negated the participation of international experts and created opportunities for manipulative selection of HQCJ members (see more details in weekly analyzes dated January 13-20January 20-27February 4-10, 2020). It is likely that in this case, a conscious assumption has been made that international organizations will not want to legitimize an orchestrated competitive selection to the HCJ by the participation of their representatives.

In view of the above, the adoption of the draft law No. 3711-d in its wording will not only contradict Ukraine’s commitments to the European Union, but will also negatively affect the state of independence of the judiciary, as the HQCJ, formed by competition will be fully controlled by unreformed HCJ, the integrity of which members is dubious. It will also have key responsibilities for judicial reform (qualification assessment of almost half of the judicial staff and selection of about 2,000 judges for vacant positions).

Before the second reading, the draft law should be substantially finalized, by including the following provisions:
–   full independence of the competition commission from the HCJ, namely, the commission should be able to independently determine and approve the procedure for conducting the competitive selection, criteria and methodology for evaluating candidates;
–   decisive voting right of international experts in decision-making by the competition commission;
–   determination by the competition commission of the winners of the competitive selection, whom the HCJ should appoint to the position;
–   entry into force of provisions that provide for the granting of new powers to the HCJ (in particular, to determine the number of judges in the courts) only after the cleanup of the HCJ itself.

In addition, it is advisable to exclude from the draft law the provision that at least half of the members of the HQJC should be judges or retired judges, as it contradicts the content of the competition procedure.



Election of HCJ members by the Congress of Judges will exacerbate the problem of HCJ integrity


Event

On March 9-11, the XVIII regular congress of judges will take place, where a judge of the Constitutional Court, four members of the High Council of Justice (hereinafter – HCJ) and the Council of Judges will be elected.

CPLR assessment

1. Draft law No.5068 introduced by the President is currently being considered in the Verkhovna Rada.  The draft law provides for a significant change in the procedure for selecting HCJ members by introducing an additional stage in which an independent commission with the participation of international experts will assess the integrity of candidates for the Council (see more details in the analysis of CPLR experts). The introduction of such a stage is part of the international commitments that Ukraine made in 2020, and has been repeatedly recommended by our international partners (G7 Ambassadors, the Venice Commission).

CPLR experts are of the opinion that the election of new HCJ members by the Congress of Judges according to the old rules will not promote the integrity of the HCJ and, moreover, may preserve the solution to this problem for a long time. It is also important to note that the G7 Ambassadors and the Ambassador of the European Union to Ukraine Matti Maasikas called on the Congress of Judges to postpone the election of HCJ members until transparent selection procedures are established. Similarly, it is recommended to postpone the election of a judge of the Constitutional Court.

2. In weekly analyzes dated  November 24-30, December 1-7, 2020, the CPLR experts drew attention to numerous cases of HCJ submitting illegal applications to the President for appointment of judges who did not pass the qualification assessment, as the plenary panel of the High Qualification Commission of Judges did not consider conclusion of the Public Council of Integrity regarding such persons.

According to our estimates, during November 2020 – March 2021, the HCJ, ignoring the conclusions of the Public Council of Integrity, submitted 86 such applications to the President, and another application was submitted regarding a judge who did not pass the qualification assessment procedure (judge of Pechersk District Court of Kyiv V. Kytsyuk). However, as of March 8, the President, probably aware of the illegality of such submissions, did not appoint these persons to the positions of judges.

Of the 86 persons, in relation to whom the HCJ submitted illegal applications, 18 are delegates to the XVIII Congress of Judges, and therefore, these illegal actions of the HCJ can be explained by the intention of its members to influence the results of the Congress of Judges.



Economic Strategy approved by the Government until 2030 does not address the key problems of the judiciary


Event

On March 3, the Cabinet of Ministers approved the National Economic Strategy for the period up to 2030, and the rule of law is one of its areas. One of the strategic goals of this area is: “ensuring fair justice in Ukraine, based on the rule of law, protection of rights and freedoms of a human, individuals and legal entities”, to achieve which a range of measures has been identified.

CPLR assessment

In terms of judicial reform, the National Economic Strategy is largely based on the vision of the development of the Ukrainian economy presented by the Prime Minister in November 2020 – “Vectors of Economic Development 2030” (see more details in the weekly analysis dated November 10-16, 2020). At that time, the CPLR experts generally praised the proposed measures in the field of justice. Separately, it was noted that the authors of the concept rightly believe that the reform of the judiciary should begin with the High Council of Justice (hereinafter – HCJ) and the High Qualification Commission of Judges (hereinafter – HQCJ) as bodies that should ensure the integrity and accountability of judges.

Most of the proposed measures were reflected in the approved Strategy. However, a number of key measures without which judicial reform is impossible and other measures become effectively null have not been envisaged. In particular, the Strategy now does not contain measures to address the main problems in the judiciary, namely:

●   problems of dishonesty of HCJ members, although the Ministry of Justice and the Center for Economic Recovery in “Vectors of Economic Development 2030” considered this problem to be one of the current barriers to the rule of law and proposed to solve it by establishing an Ethics Commission with involvement of international experts and members of the public, which would check the current members of the HCJ for integrity and would evaluate future candidates for the Council. The Strategy does not mention any HCJ reform at all, although it is one of the key problems of the judiciary, which is recognized by Ukraine even at the international level (in agreements with the International Monetary Fund and the European Union);

●   problems of dependence and inefficient activity of the HQCJ. In “Vectors of Economic Development 2030”, the Ministry of Justice and the Center for Economic Recovery proposed an open competitive selection to the HQCJ with decisive participation in the selection of international experts and the public. The Strategy does not contain any reference to changing the principles for the Selection of HQCJ members, although in Vectors, it was one of the priority steps;

●  problems of the District Administrative Court of Kyiv (see more details in the weekly analysis of July 13-20 2020), although the authors of “Vectors of Economic Development 2030” attributed the solution of this problem to measures to eliminate corruption risks in the judiciary. There is no reference of this problem in the Strategy, although it was recognized by Ukraine in agreements with the International Monetary Fund.

In fact, despite the fact that the Economic Development Strategy contains a number of progressive measures that can positively affect access to justice in Ukraine, it ignores the key problems of the judiciary, without addressing which it will not be possible to fully implement the proposed measures and achieve the declared strategic goal.