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 firstname.lastname@example.org
The public urged the President to unblock judicial reform
On February 28, the Centre of Policy and Legal Reform, together with other NGOs, called on the President to submit to Parliament a draft law that would provide for a transparent competitive selection to the High Qualifications Commission of Judges (HQCJ) and unblock the creation of Integrity and Ethics Commission that would allow to dismiss unfair members from the High Council of Justice (HCJ). In addition, the draft law should take into account the reservations of the Venice Commission regarding the unjustified reduction of the Supreme Court, providing for a transparent and clear procedure for assessment of judges’ integrity with the participation of international experts.
2. CPLR Assessment
The new phase of judicial reform, which began after the Law No. 193-IX came into force in November 2019, has not yet been implemented. The HCJ has blocked the implementation of the key reform novelties – the formation of the HQCJ on new principles and the establishment of the Integrity and Ethics Commission. Currently, implementation of this law is at a standstill and requires adjustments due to the adoption of the new law.
CPLR experts are of the opinion that it is important for the President, when drafting a new law on judicial reform, not to repeat the previous mistake when he commissioned the implementation of the reform to the subject of reform.
Profile committee of the Verkhovna Rada plans to weaken the independence of prosecutors
A number of members of the Parliamentary Committee on Law Enforcement have registered the draft law No. 3062. As stated in the explanatory note, it aims to increase the efficiency of the prosecutor authorities by providing additional incentives for the effective work of prosecutors, sufficient requirements to the work experience of candidates for prosecutors in district, regional prosecutor’s offices, the Prosecutor General’s Office.
2. CPLR Assessment
Instead, the draft law in no way matches its title. First of all, it is only intended to revive some of the typically Soviet practices in the prosecutor’s office.
Return of class ranks (shoulder straps) and uniforms. Uniforms are a hallmark of a well-organized, i.e. managed, service, and have traditionally been introduced to give a unified look to a particular group. Although, first of all, the unified management style is introduced to impose a clear subordination. In order to reinforce the rules of subordination, titles (ranks, grades, etc.) and, in particular, shoulder straps or other distinguishing marks are used.
Earlier in the Ukrainian prosecutor’s office, uniforms, class ranks and shoulder straps were nothing but the preservation of this tradition – they were cultivating the belief that the orders from the top were binding, that is, imposing subordination. In other words, this practice substantially undermines the independence of prosecutors, which is a safeguard for their activities, and constitutes a basic preventive measure against selective justice.
Introducing disciplinary liability for failure to comply with the decisions of coordination meetings. This provision is also primarily directed against the guarantees of prosecutors’ independence. This is true that coordination meetings are convened and held exclusively by heads of prosecutor offices. Accordingly, decisions at coordination meetings will be a tool for the extra-procedural influence of executives on ordinary prosecutors. Legalizing such practices will result in increased manual management of pre-trial investigations and the course of court considerations.
Establishment of additional qualification requirements for work in prosecutor’s offices. If enacted, such a provision would be a significant impediment to recruiting lawyers who lack prosecutorial experience to work in the prosecutor’s offices. This, in turn, will impede the implementation of a set of prosecutor’s reform measures that have already been initiated. At the same time, the draft law does not contain due substantiation for such a measure and contradicts the vision of reform of the Prosecutor General’s Office.
In summary, the implementation of these proposals will significantly weaken the organizational, procedural and other tools designed to ensure the principle of independence of prosecutors and prosecutors as a whole. That is, it will cross out Ukraine’s longstanding efforts to implement European standards in the criminal justice field.
On February 25, during the “Reforms Forum: on the Road to Vilnius”, Prosecutor General Ruslan Ryaboshapka stressed that he did not support such a draft law, and that he was glad that the prosecutor’s office had managed to abandon archaisms such as class ranks and uniforms half a year ago.
Abuse of power is in fact not punishable. However, the situation can be changed
The number of persons convicted under Articles 364, 364-1 and 365-2 of the Criminal Code of Ukraine decreased from 583 persons in 2012 to 2 persons in 2019, which means almost three hundred times, with the number of convicts under these articles being imprisoned from 127 persons to 0 and imposed a fine from 76 to 2.
Consequently, the numerous abuses of power, office and authority have in fact became not punishable, and therefore it is becoming increasingly difficult for officials to refrain from committing such acts.
What preceded this situation? In accordance with the Law of May 13, 2014 №1261-VII, items 3 and 4 of the notes to Article 364 of the Criminal Code of Ukraine were set out in a new wording which excluded the possibility of bringing officials and persons providing public services to criminal liability for abuse of power or official position, if the damage caused is not related to property. Therefore, these abuses, if they caused significant or grave harm to life or health, human and citizen’s rights and freedoms, to the legitimate interests of individuals, legal entities or the state, are not considered as crimes at all.
On February 27, the Verkhovna Rada Committee on Law Enforcement submitted a proposal for consideration by the Verkhovna Rada of the Law “On Amendments to Article 364 of the Criminal Code of Ukraine on Specification of Signs of Certain Crimes in the Area of Service” (Reg. No. 2621). The draft law was initiated by the President of Ukraine, who identified it as urgent. Draft Law No. 2621, in respect of substantial damage, returns the wording of paragraph 3 of the note to Article 364 of the Criminal Code of Ukraine to its previous version.
2. CPLR Assessment
As we can see, the current situation needs and can be changed, in particular through the adoption of the draft Law No. 2621. However, this draft law requires further elaboration.
First of all, similar changes should be made to item 4 of the note to Article 364 of the Criminal Code of Ukraine. Perhaps the authors of the draft law just forgot about it.
In addition, in order to bring Article 364 of the Criminal Code of Ukraine in accordance with Article 19 of the UN Convention against Corruption, appropriate abuse should be defined as “the commission by an official of any unlawful act or omission through the exercise of power, office or authority for the purpose of obtaining any undue benefit to him/herself or another natural or legal person or to other personal interests, if it has materially damaged the rights, freedoms and interests of individuals or the state or public interests, or the interests of legal persons, protected by law.”
There is also a need to:
1) establish in the Criminal Code of Ukraine a rule according to which any act performed by an official in the specified manner and for the stated purpose is subject to qualification under the article of this Code, which provides for such action, and under the relevant part of Article 364 of the Criminal Code; the punishment for these criminal offenses cannot be imposed by absorbing less severe punishment by a more severe one;
2) exclude the sign “committing a crime using official position” from those articles of the Special part of the Criminal Code of Ukraine where it is provided.
Finally, as an alternative punishment for abuse of power or office, a fine should be provided for in parts 1 and 2 of Article 364 of the Criminal Code of Ukraine amounting to 10 thousand and 25 thousand non-taxable minimum incomes of citizens respectively. Amounts of fines under Articles 364-1 and 365-2 of the Criminal Code of Ukraine should be increased proportionally and in accordance with the provisions of Articles 12 and 53 of the Criminal Code of Ukraine.