Weekly analytics for 28 June — 4 July

Extra five Criminal Code articles won’t protect from corruption in courts

Event

On June 23, the National Security and Defense Council of Ukraine (NSDC) adopted Decision “On Judicial Reform Acceleration and Overcoming Corruption Manifestations in the Justice System” (implemented by the President’s Decree № 359/2023 of June 30, 2023).

Among the anti-corruption measures, this Decision provides for amendments to the Criminal Code (CC) and the laws “On the judiciary and status of judges” and “On the High Council of Justice” regarding:

1) enhanced punishment in form of imprisonment for a term of 10 to 15 years with confiscation of property for corruption criminal offenses in the area of justice;

2) conducting an assessment of all judges of the Supreme Court by the High Council of Justice (HCJ) regarding possible disciplinary misconduct, gross or systematic neglect of judicial duties, and confirmation of the legality of sources of property;

3) conducting a similar assessment, upon the HCJ’s decision, of all judges of the relevant court in the case of one of the judges of this court receives notice of suspicion of receiving an illegal benefit;

4) adjusting the grounds and procedures of disciplinary responsibility of judges;

5) conducting effective and transparent qualification evaluation of judges;

6) introducing a regular psychophysiological survey of judges using a polygraph;

7) introducing a psychophysiological survey with the use of a polygraph as a condition for the selection of judges;

8) adoption of fair and transparent rules and procedures for consideration of ethical violations by members of the HCJ;

9) resumption of consideration of disciplinary cases against judges (reg. № 9261).

CPLR’s expert assessment

The Law of June 20, 2022 approved the Anti-Corruption Strategy for 2021-2025. In subsection 3.1, “Fair court, prosecutor’s office, and law enforcement agencies”, it defines the main problems of corruption in this area and the expected strategic results of addressing these problems.

Accordingly, the Government approved the State Anti-Corruption Program (SAP) by its Resolution № 220 of March 4, 2023. Annex 1 to the Program, “Expected strategic results of the implementation of the State anti-corruption program for 2023-2025”, defines measures the implementation of which can ensure a significant reduction in corruption level in the justice system.

These include the entry into force of laws that will provide, in particular, for the following:

– criminal responsibility for abuse of authority by judges;

– uniform criteria for assessing the integrity and professional ethics of a judge;

– assessment of candidates’ compliance with integrity criteria in all procedures for the selection of judges;

– mandatory publication of exam results during the qualification evaluation of judges by the High Qualification Commission of Judges of Ukraine;

– clarification of the list of grounds for disciplinary responsibility of a judge;

– a ban on dismissing a judge from office upon resignation request until the completion of disciplinary proceedings against the judge;

– a separate procedure for verifying the legality of sources of origin of a judge’s property.

Repeating the provisions of the SAP in a Presidential Decree is a political bad tone, and a demonstration that one does not know what the other is doing across the two segments of the executive. There is also no need to come up with something new until the listed measures are implemented. This is especially the case when it comes to measures of controversial and populist nature (such as the shared responsibility of judges, the use of the polygraph as a panacea for all manifestations of dishonesty, and other ways of attacking the judicial independence), suddenly emerging ideas the content of which is unjustified and which come with unpredicted political and legal consequences. In the end, the SAP and the Presidential Decree as documents in the area of state policy have the same legal effect and simply multiply the same provisions, simulating involvement in activities that are already being carried out or should be carried out.

On June 29, prior to adoption of the Presidential Decree № 359/2023, two draft laws to implement the decision of the National Security Council were submitted to Parliament’s consideration by a group of MPs.

One of them is the draft law “On Amendments to Chapter XII “Final and Transitional Provisions” of the Law of Ukraine “On the Judiciary and Status of Judges” regarding the specifics of the appointment of a judge under martial law” (№ 9439).

It provides for the President’s right to return a recommendation on appointment of a judge for the HCJ’s re-examination in the event of obtaining information about a person from the Security Service of Ukraine (SSU) or the National Anti-Corruption Bureau of Ukraine (NABU) indicating committee “actions that may threaten the national security of Ukraine or harm national interests”. The draft law does not specify why the SSU and the NABU cannot provide the specified information directly to the HCJ and what the mistrust in this body is based on, given that it was recently formed with the participation of the Ethics Council. Therefore, the draft law looks like an attempt to give the head of state the opportunity to intervene in the independence of a of judicial self-governance body and the judiciary in general on the utmost undefined grounds.

The second registered draft law is the law “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine on Enhancing the Responsibility for Corruption Criminal Offenses in the Area of Justice” (№ 9438).

Its main ideas include:

1) supplementing the Criminal Code with a new chapter XVII-A, “Corruption criminal offenses in the area of justice”. Articles 370-1–370-5 provide for the establishment of responsibility, among others, for the offer, promise, or granting of an undue benefit to a judge, juror, expert, specialist, witness, for its acceptance (receipt), as well as for influencing the adoption of a court decision by a judge or jurors;

2) providing for increased punishment for these crimes.

There are several reasons why this is a bad idea.

First. High corruption level of is not only present in the justice area, but also in other areas, including tax and customs services, state criminal enforcement service and other bodies for the execution of court decisions, some inspectorates, pre-trial investigation bodies and prosecution, local authorities and local self-government bodies, educational and medical institutions, etc. Corruption issues may also occur in the Constitutional Court of Ukraine or in the Central Election Commission, the Accounting Chamber, or Antimonopoly Committee of Ukraine. But if a wheel in a cart does not turn well, no one will think to add a dozen more wheels instead of lubricating or repairing the first one.

Second. In a situation where, for example, based on a prior conspiracy between a prosecutor and a judge, the former submits a motion to the court and the latter grants it, and they share the undue benefit among them, the judge will be punished by imprisonment for a term of 10 to 15 years, whereas the prosecutor will only receive a penalty of 5 to 10 years. Is this fair? And, why make the criminal law charging so complicated?

Third. Article 368 of the current Criminal Code provides for the possibility of a sentence of up to 12 years of imprisonment with confiscation of property for receiving an illegal benefit by a judge. If such a punishment does not scare offenders, then where is the guarantee that they will be scared with 15 years and similar confiscation of property?

Furthermore, in contrast to Art. 368 of the Criminal Code, Art. 370-2 of the draft law does not differentiate the punishment depending on the amount of unlawful benefit. Therefore, a judge’s demand for an unlawful benefit – regardless whether it amounts to 4 thousand or 4 billion UAH – will be punished in the same way, i.e., with 10 to 15 years of imprisonment with confiscation of property. For all other officials, differentiation by amount extends these limits from 2 to 12 years of imprisonment, providing for the confiscation of property only in cases of large and especially large amount of unlawful benefit (Article 368 of the Criminal Code). It is obvious that, sooner or later, the European Court of Human Rights will draw Ukraine’s attention to disproportionality of the punishment.

Fourth. Article 368 of the current Criminal Code establishes a judge’s responsibility for receiving an unlawful benefit for committing or refusing to perform any act. Articles 370-1–370-3 of the draft law concerns, in particular, a judge’s receipt of, or providing a judge with, an unlawful benefit for the issuance or failure to issue a court decision or influencing the adoption of a court decision. That is, these articles will not cover cases where an unlawful benefit is granted, for example, for manipulations with case assignments, delaying the terms for adoption of a court decision, announcement a postponement for a term needed for the expiration of a certain procedural term, correction of “clericals errors” in a court decision, etc. In all these cases, it will be necessary to charge a judge’s actions under Art. 368, whereas actions by other persons will be charged, respectively, under Articles 369 and 369-2 of the Criminal Code.

The same applies to an expert (Article 370-4 of the draft law): receiving an illegal benefit by an expert for failure to prepare an expert opinion but not, for example, for failure to conduct an expert examination or for making certain statements during interrogation in court can be punished with a maximum of imprisonment for a term of 2 to 5 years (Part 3 of Art. 368-4 of the Criminal Code).

Fifth. The authors of the draft law did not take into account the fact that Article 386 of the Criminal Code already provides for criminal responsibility for bribing a witness and an expert – that is, for the same act as provided for in Articles 370-4 and 370-5 of the draft law.

Thus, the introduction of proposed amendments to the Criminal Code and the strengthening of criminal responsibility in the form of imprisonment will not contribute to the eradication of corruption in the judicial system, but will only complicate the procedure of pre-trial investigation and the charging decisions for crimes, while potentially leading to artificial increase in criminal proceedings and burdening the content of the Criminal Code.

The approach according to which increasing the punishment is the main measure to overcome the issue is wrong. It is much more important to ensure in practice the inevitability of criminal responsibility. Therefore, if anti-corruption legislation does need amendments, they must be primarily related to the improvement of the criminal process, whose shortcomings and gaps are abused by corrupt officials.

These have to do with the short terms for criminal proceedings established by the criminal procedure law, upon expiration of which a case must be closed and criminal responsibility for a crime does not occur, as well as with the possibilities for delaying the trial by abusing procedural rights and appealing to court the notices of suspicion, etc.

Specialized bodies, which were created relatively recently to fight corruption and bring the perpetrators to justice, have small numbers of staff, which objectively makes it impossible to rapidly investigate and hear criminal cases on corruption criminal offenses in a quality way, while the investigative units of the National Police, which investigate approximately 98% of all cases relating to such offenses, have even not introduced the requisite specialization.

Overcoming corruption should not be done in firefighting mode, but should be systemic and comprehensive, within the constraints of the Constitution and previously identified priorities.