Weekly analytics for 22 — 28 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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Course of competitive selection of candidates for the position of judges of the Constitutional Court under the quota of the Congress of Judges
Along with competitive selection of candidates for three positions of judges of the Constitutional Court under the Parliament’s quota, a similar competition for two vacant positions under its quota was conducted by the Council of judges.
Currently, in the Constitutional Court of Ukraine there are 5 vacant positions, including 2 vacant positions under the quota of the Congress of judges.
On January 23, 2023, the beginning of the competition for two vacant positions of judges of the Constitutional Court of Ukraine (decision № 4) was announced by the Council of judges of Ukraine, in accordance with the Law «On the Constitutional Court of Ukraine». The application window for submission of documents for participation in the competitive selection closed on February 3, 2023 at 24 p.m. Moreover, the decision № 4 of the Council of Judges contained recommendations regarding the preparation and submission of documents by persons who intended to participate in the competitive selection for the position of judges of the Constitutional Court of Ukraine.
On February 14, on the official website of the Council of judges the following information was published:
- a list of 13 candidates for the position of judges of the Constitutional Court;
- electronic versions of documents submitted by the candidates.
Thus, the following candidates intended to be appointed for the vacant positions of judges of the CCU under the quota of the Congress of judges:
- Bychkov I.G. – judge of the Kovpakivskyi district court of Sumy city;
- Volkova О.І. – judge of the Yuzhnoukrainskyi city court of Mykolaiv Region;
- Halamay О.Z. – judge of Economic Court of Lviv Region;
- Yevgrafova E.P. – judge of the Higher Specialized Court for civil and criminal cases ;
- Korovaiko О.І. – head of Kherson court of appeal;
- Kurunchak Л.А. – acting associate professor of Department of General Law and Social and Humanitarian Discipline of Kherson faculty of Odesa National University of internal affairs;
- Ovsiyenko А.А. – retired judge of the Volyn Сourt of Appeal;
- Oliinyk А.С. – judge of the Civil Cassation Court of the Supreme Court of Ukraine;
- Panchenko N.D. – judge of the Kyiv District Administrative Court;
- Pechenyi О.P. – assistant professor, associate professor of the 1-st Department of Civil Law of the Yaroslav Mudryi National Law University;
- Prokopenko О.B. – judge of the Grand Chamber of the Supreme Court of Ukraine;
- Radutnyi О.Е. – associate professor of the 1-st Department of Criminal Law of the Yaroslav Mudryi National Law University;
- Yanovska О.P. – judge of the Criminal Cassation Court of the Supreme Court of Ukraine, spokesperson.
As of today, the Council of Judges has not yet made a decision on (dis)admission of these candidates to the competitive selection.
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»).
Furthermore, the Council of Judges has not yet appointed a candidate for the first composition of the AGE.
The CPLR continues to monitor the process of the competitive selection of judges of the Constitutional Court of Ukraine.
Strengthening responsibility for corruption in the conditions of martial law. Is it enough to just amend the Criminal Code?
On February 17 and 22, two draft laws with almost identical names were registered in the Parliament – «On Amendments to the Criminal Code of Ukraine on strengthening criminal responsibility for corruption crimes committed under the martial law or state of emergency» (registration № 9029, initiated by MPs Iryna Friz, Ivanna Klympush-Tsintsadze, etc.) (hereinafter – PZ 9029/Friz) and «On Amendments to the Criminal Code of Ukraine regarding strengthening responsibility for corruption crimes committed under martial law or state of emergency» (registration № 9049, initiated by MPs Heorhiy Mazurash) (hereinafter – PZ 9049/Mazurash).
Titles of both draft laws indicate that the second draft is an alternative to the first. We would like to remind that according to Articles 100 and 110 of the Parliament’s Rules of Procedure, the draft laws which containing provisions regulating the same range of issues and essentially repeating the provisions on regulation of the same social relations should be considered alternative. At the same time, as a rule, alternative draft laws are considered in order of priority of their introduction. However, this rule does not apply in case if the draft law is not registered as an alternative.
As for the content of the draft law PZ 9029/Friz, it is generally acceptable.
It proposes to supplement a number of articles of the Criminal Code of Ukraine regarding corruption related criminal offenses (Articles 210, 354, 364, 364-1, 365-2, 368, 368-3, 368-4, 368-5, 369 and 369-2) with an aggravating factor «the same act committed in the conditions of martial law or state of emergency». Accordingly, in case of committing a corruption related criminal offense in such conditions, the court may impose more severe punishment than for a similar criminal offense committed in peacetime.
The draft law PZ 9029/Friz contains some deficiencies.
In particular, the draft law, for some reason, proposes to supplement part 2 (instead of part 3) of Art. 365-2 of the Criminal Code with the qualifier «the same action committed in the conditions of martial law or state of emergency», while all other articles consistently propose to supplement the last part of this article. Such an approach is illogical.
In case of repeated bribery of an employee committed by a group of persons by prior conspiracy and in the conditions of martial law or state of emergency (Part 2 of Article 354 of the Criminal Code), as well as receiving an unlawful benefit by an employee, the minimum punishment looks disproportionate compared to other similar acts – as it provides for fines in the amount of UAH 4,250 and UAH 8,500 respectively. As a comparison, the minimum fine for abuse of authority committed by an official of a private legal entity in the conditions of martial law or state of emergency is 8-16 times higher (UAH 68,000). General, the punishments in all articles of the Criminal Code of Ukraine related to corruption crimes need to be brought into a well-founded system.
However, these shortcomings can be corrected before consideration of the draft law in second reading.
The content of the draft law PZ 9049/Mazurash is difficult to recognize as alternative. It can rather be called a parody of the draft law PZ 9029/Friz, and its authors’ legal illiteracy can be used as an example in lectures on law-making.
First of all, it is necessary to pay attention to attempts to amend the article of the Criminal Code of Ukraine, which was recognized inconsistent with the Constitution by the Constitutional Court of Ukraine in 2019, and as a result it is currently invalid.
Disproportionality of punishments in this draft law is a challenge for the entire system of the Criminal Code – it contains the proposal to made punishment for certain abuses of authority, which, although outrage the society, but do not cause serious or even significant damage, much more severe than even for the intentional murder with multiple aggravating circumstances, or for a terrorist act with human casualties, genocide and other particularly serious crimes.
In addition, the authors of the draft law PZ 9049/Mazurash propose to punish corruption crimes committed in the conditions of martial law or state of emergency with life imprisonment including confiscation of property, without other options. This contradicts, at least, the requirements of Articles 8, 21, 24, 61 of the Constitution of Ukraine, as well as the provisions of Art. 65 of the Criminal Code regarding the general principles of sentencing.
The draft law PZ 9049/Mazurash also contains other deficiencies, but they do not need to be in focus given the fact that those already referenced are sufficient for the Parliament’s specialized committee to ask the initiator of the draft law to withdraw it.
Finally, it should be noted that both draft laws are based on the naive assumption that simply increasing the punishment for corruption or any other crime can at least somehow deter the persons who commit them. After all, crimes are committed with the expectation that offenders will not be exposed, or at least will be able to avoid criminal responsibility or «address» the responsibility issue in a manner to not be held responsible or not receive a punishment – or receive only minimal punishment.
Statistical data clearly confirm this.
Thus, in 2022, 1,299 proceedings regarding corruption crimes, provided for in Articles 364, 368 and 369 of the Criminal Code of Ukraine, were submitted to the court with an indictment, despite the fact that there was records regarding 4,714 of such crimes.
According to criminologists, the latency level of corruption crimes is at least 90-99% in Ukraine.
Thus, at least 4200–4700 relevant corruption crimes remained undetected, and another 3400 (almost ¾) of statements and reports about such detected crimes were «unverified».
In 2022, 919 persons were punished for committing such crimes, while courts closed the proceedings regarding 134 persons. Finally, almost 96% of those persons were punished by a fine (usually in the amount of UAH 17,000) or by another punishment not related to deprivation of liberty and an additional 1% were released from punishment.
In order to maximize the inevitable responsibility for corruption crimes, it is necessary to strengthen the NABU, SAP, HAC, NAСP and ARMA, as well as authorized departments for the prevention and detection of corruption of state bodies, to create and strengthen the specialization of the relevant units of the SBI and the National Police, to improve personnel selection, ensure integrity control and improve the qualifications of operational staff, investigators, detectives, prosecutors, and judges, to eliminate significant contradictions and other shortcomings in criminal procedure, criminal legislation and legislation on administrative offenses, etc. But it seems that lawmakers tend to look for easy answers to complex challenges.