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Weekly analytics for 23 — 29 November

30.11.2022

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. 

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.

The Venice Commission issued an opinion on the draft law № 7662

Event

On November 23, the European Commission “For Democracy through Law” (Venice Commission) issued an urgent opinion (CDL-PI(2022)046) on the draft Law “On Amendments to Certain Legislative Acts of Ukraine on Improving the Procedure for the Selection of Candidates for the Position of Judges of the Constitutional Court of Ukraine on a Competitive Basis” of August 12, 2022 (reg. № 7662). The opinion was provided in response to the request of the Chairman of the Verkhovna Rada of Ukraine (letter dated October 10, 2022). The text of the issued opinion will be endorsed at the upcoming 133rd Plenary Session of the Venice Commission (Venice, December 16-17, 2022).

Legal assessment

The opinion focused on direct analysis of the innovations of the draft law № 7662 (paragraphs 15-67), but at the same time it contains retrospective references to all early expressed positions of the Venice Commission regarding the competitive selection of judges of the CCU (paragraphs 9-12): CDL-AD(2015)027, CDL-AD(2015)043, CDL-REF(2015)047, CDL-AD(2016)034, CDL-AD(2020)022, CDL-AD(2020)039), and also a reference to the relevant recommendations of the European Commission expressed in the opinion on Ukraine’s application for membership of the EU.

Overall, the Venice Commission welcomes the Ukraine’s intention and efforts to improve the competitive selection of candidates justices to the Constitutional Court of Ukraine and believes that the draft law № 7662 will significantly contribute to the implementation of the recommendations contained in previous opinions of the Venice Commission (paragraph 68).

However, the Commission calls on the Ukrainian authorities, to fully use the Venice Commission’s proposals while the draft amendments are under consideration by the Parliament in order to provide all the necessary guarantees for independence, impartiality and efficiency of the AGE – in line with international standards. In particular, the opinion contains the following recommendations (paragraph 69):

  1. To introduce a sunset clause providing for a time limit to international participation in the process of selection of judges of the Constitutional Court of Ukraine (paragraph 44-46).
  2. To provide for a definite term of office for the international members of the AGE and for their appointment through an official act of a Ukrainian authority (paragraphs 39, 44-46, 48).
  3. To simplify the procedure of selection of the AGE by the HCJ to to avoid paralysing the institution (paragraph 39).
  4. To provide for the election or appointment of substitute members (at least for international members), replace the main members of the AGE in the event of early termination of their powers (replace the main members of the DGE in the event of early termination of the latter’s powers (paragraph 49).
  5. To provide that the criteria for appointing of the Constitutional Court judges should take into account gender equality standards (paragraph 62).
  6. To provide that the AGE provides the relevant appointing body with the names of the screened candidates accompanied by its assessment of the moral qualities and professional competence of each candidate. These information with candidates assessments oshould be made available to the public (paragraph 60).
  7. The AGE methodology to assess the moral qualities and legal competence should be based on best international practice (paragraph 51).
  8. To provide provision for anti-deadlock mechanism for addressing the cases where AGE   cannot reach a decision (paragraph 56).
  9. To set out a timeframe for carrying out the selection procedure and for submitting the judicial candidates to the appointing bodies (paragraph 58).
  10. To ensure that the decisions by the appointing bodies to appoint or refuse to appoint of certain candidates are subject to public scrutiny – i.e. presented to the public (paragraph 65).
  11. To include civil society in the process of selection of the CCU candidate judges with the task of providing information and feedback on the judicial candidates and monitoring the process (paragraphs 31-33).

Furthermore, the Venice Commission

  1. repeatedly drew attention to its recommendation (CDL-AD(2015)027, paragraph 25) regarding the appointment of judges of the CCU according to the quota of the Parliament exclusively by a qualified majority (paragraph 64) – however, this recommendation can be implemented only through amendments to the Constitution of Ukraine, which is impossible under the current state of war;
  2. additionally indicated that some provisions of the draft law are extremely long and too detailed, and recalled about the “golden rule” for structuring and drafting legislative acts[1] (paragraph 67)

Also, the CPLR’s experts remind that the draft law № 7662 contains provisions that have constitutional defects (see paragraph 5.7 of the Analytical Brief “The draft law on improving the procedure for selecting candidates for the position of judge of the Constitutional Court of Ukraine on a competitive basis”).

Thus, the CPLR recommends the Verkhovna Rada to take into account the recommendations contained in the opinion of the Venice Commission, as well as eliminate provisions that have constitutional defects, during the consideration and adoption of the draft law № 7662 in the second reading.

[1] One article should not contain more than three paragraphs (or subparagraphs), a paragraph should not contain more than three sentences, and a sentence should not contain more than one idea – see Compilation of Venice Commision opinion and reports on law-making procedures and the quality of the law, endorsed by the Venice Commission at its 126th plenary session (online, 19-20 March 2021),CDL-PI(2021)003.

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The CPLR was responsible for the content of this publication, but it does not necessarily reflect the views of the USAID or the US Government.

Reporting to the enemy information about the fire damage to civilian objects is an aiding war crime

Event

On 23 November, draft law No. 8218 on criminal liability for unauthorized dissemination of information about the fire damage to objects on the territory of Ukraine was registered in the Verkhovna Rada.

The draft law proposes to supplement Article 114-2 of the Criminal Code of Ukraine with a new section (section 1).

CPRL assessment

I cannot agree with the contents of this draft law for several reasons:

  1. The draft Law proposes to establish responsibility for the “dissemination of information about fire damage”.

Such wording contradicts the principle of legal certainty.

According to the Law “On Information”, information is any (!) information and/or data that can be stored on physical media or displayed in electronic form.

Reading section 1 of Article 114-2 of the Criminal Code, if it is adopted in this wording, it will not be clear what information is in question – about the fact of fire damage itself or about its specific characteristics (exact coordinates or location, presence and number of victims, the scale of destruction, etc.).

Thus, any person who informed relatives about the approximate area of ​​fire damage or informed employees about the scale of the destruction in order to explain the impossibility of appearing at work, etc., may be held criminally liable.

In addition, information on fire damage may contain data on the state of the environment, the quality of food products and household items, the right of access to which and the right to distribute it in accordance with Article 50 of the Constitution of Ukraine cannot be limited by anyone. Article 13 of the Law “On Information” states that information about the state of the environment, except information about the location of military facilities, cannot be classified as information with limited access. Article 21 of the same Law provides that information with limited access cannot be classified as information, in particular:

  • about accidents, catastrophes, dangerous natural phenomena and other emergency situations that have occurred or may occur and threaten people’s safety;
  • about the health of the population and the state of law and order;
  • about facts of violation of human rights and freedoms.

The reference to “other authorized state bodies” also does not comply with the principle of legal certainty.

The same principle does not allow us to look favourably on attempts to describe the corpus delicti of a criminal offence using the plural instead of the singular because with such an approach, it is not clear why the information should refer not to one object, one building or one structure, but to several objects, buildings or structures, why the latter should ensure the activity of not one, but several bodies of state power and local self-government, state and communal enterprises, institutions, organizations, etc.

  1. About the principle of proportionality.

According to section 4 of the proposed version of Article 114-2 of the Criminal Code, the specified dissemination of information about fire damage, if it is committed “for selfish reasons, or with the purpose of providing such information to the state that carries out armed aggression against Ukraine, or to its representatives, or to other illegal armed formation,… in the absence of signs of high treason or espionage”, is punishable by imprisonment for a term of eight to twelve years.

Perhaps there are cases when a citizen of Ukraine – the corrector of missile strikes, acting in the interests of the aggressor state, does not receive thirty silver coins for his vile deed, and there are no selfish motives. But how can it not be high treason if a citizen of Ukraine corrects the missile attacks of the aggressor state on the territory of Ukraine, as a result of which people die, and the energy system of Ukraine is destroyed!? What then is high treason, in particular in the form of providing assistance to a foreign state, a foreign organization or their representatives in carrying out subversive activities against Ukraine?!

In this context, it should also be remembered that attacks on civilian objects and attacks of an indiscriminate nature, attacks or the destruction or rendering unusable of objects necessary for the survival of the civilian population, turning the civilian population or individual civilians into an object of attack, is a war crime (Articles 51, 52, 54, 85 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)), responsibility for which is provided for by Article 438 of the Criminal Code of Ukraine. A person is punished by imprisonment for a term of eight to twelve years (section 1), and if the relevant actions are combined with intentional murder, by imprisonment for a term of ten to fifteen years or life imprisonment (section 2).

A citizen of Ukraine who corrects enemy fire is an accomplice in the crime provided for, respectively, in sections 1 or 2 of Article 438 of the Criminal Code of Ukraine and must bear criminal responsibility for this crime with reference to section 2 of Article 29 of the Criminal Code of Ukraine, as well as for the crime provided for in Article 111 of the Criminal Code of Ukraine “High Treason” in the form of providing a foreign state, a foreign organization or their representatives with assistance in carrying out subversive activities against Ukraine, if there are all signs of the corpus delicti of this crime, including intent.

Of course, nothing prevents the legislator from creating a special rule that can qualify the assistance of a civilian in a war crime, the subject of which is usually combatants. But, firstly, such a norm should be placed in the same section as the general one since the object of the offence is the same, and secondly, the punishment in the special norms is usually more severe than that in the general norm (otherwise, an unsubstantiated so-called privileged norm is created).

  1. Given the need for criminal statistics and general convenience, assigning other numbers to already valid articles or parts is impossible. If there is a need to create an article that contains the corpus delicti of a criminal offence, similar to what is provided for, for example, in sections 1 and 2 of Article 114-2 of the Criminal Code, it should be done in the new article 114-3 of the Criminal Code, but not to transform sections 1, 2 and 3 into sections 2, 3 and 4, adding a new section 1. Especially when the aggravating features that remained in the transformed new section 4 of Article 114-2, are not relevant to the new section.
  2. If there is a need to provide for criminal liability for the distribution (especially in the absence of signs of high treason and espionage) of certain (specific) information about the results of the corresponding fire damage in order to exclude any possibility for the aggressor state to obtain it from open sources, then it is necessary to formulate Article 114-3 of the Criminal Code of Ukraine.

In it, taking into account the requirements of the principles of legal certainty and proportionality, determine:

1) a particular act (dissemination of specific information), and the main, not the qualified, part of this act must contain an indication that it is committed in the absence of signs of high treason and espionage;

2) aggravating features inherent only to this act (for example, causing severe consequences);

3) punishment that can actually be carried out in martial law conditions – a fine and arrest (it is unlikely that in the conditions of complicated work of probation centres, as well as unemployment, such types of punishment can include community service and correctional work).