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Weekly analytics for 29 September – 5 October 2020

05.10.2020

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 media@pravo.org.ua




Government has once again initiated the introduction of a classic jury trial


Event

On September 30, the Cabinet of Ministers supported the draft laws on the introduction of a classic jury trial in Ukraine. According to the Minister of Justice D. Malyuska, the agreed draft laws provide for the following:

●      formation of the lists of jurors by territorial departments of the State Judicial Administration on the basis of data from the State Register of Voters;

●      reduction of the minimum age of a juror from 30 to 25 years, introduction of administrative liability for non-appearance of a juror in court, without good reason;

●      bringing to the jurisdiction of the jury trial of cases of particularly serious crimes punishable by more than 10 years in prison (however, at the initial stage the jury trial will consider only cases of crimes punishable by life imprisonment);

●      decision by the jury on the guilt or innocence of the accused. A guilty decision will be considered adopted if 5 out of 7 jurors have voted for it.

Currently, the draft law is not registered in Parliament.

CPLR assessment

This is the second attempt of the Government in 2020 to initiate the introduction of a classic jury trial. The first set of governmental draft laws pursuing this goal was introduced to Parliament in January 2020, but due to the resignation of the Prime Minister of Ukraine O. Honcharuk, they were automatically withdrawn in March (see the weekly analysis of March 2-9, 2020).

The current format of involving citizens in the administration of justice in Ukraine is not a jury trial in the classical sense of this institution. In accordance with the criminal procedure law, a case is deemed to be considered by a jury trial if the jury is represented by 2 professional judges and 3 jurors, who together decide almost all issues that arise during the trial (including the guilt of the person and the punishment). This format significantly limits the participation of citizens in the administration of justice and is essentially an ordinary trial with the participation of lay judges.

CPLR experts have long advocated the introduction of a classical jury trial in Ukraine, in which a jury will decide the guilt of a person and issue a verdict on the basis of which a professional judge will pass a sentence (see Judicial Reform Concept,  Roadmap of Reforms for 2019-2023Justice Reform Agenda for the Candidates to the President’s post). This will not only ensure the full-fledged participation of citizens in the administration of justice, but also increase confidence in the court and its decisions (according to a poll conducted in 2019 at the request of the CPLR, more than 18% of citizens believe that the introduction of a jury trial could have a positive impact to the level of trust in the court (for comparison, only 10% of citizens believed that such a factor could be the proper execution of court decisions).

In view of the above, the CPLR experts support the Government’s legislative initiatives to introduce a classic jury trial. A detailed analysis of the relevant draft laws will be made after they are published on the website of the Parliament



The Verkhovna Rada rejected draft law No.3748 on Improving the Civil Service


Event

On June 26, the Verkhovna Rada registered the governmental draft law No.3748 “On Amendments to Certain Legislative Acts of Ukraine to Improve the Civil Service”. The draft law was prepared by the National Agency of Ukraine for Civil Service (hereinafter – NACS) in order to improve the procedure for entry, passage, termination of civil service, clarification of approaches to the regulation of remuneration in the civil service. Practitioners as well as Ukrainian and international experts joined the discussion of the draft law at the stage of its preparation.

On September 29, the Verkhovna Rada rejected the draft law. The assessment of the draft law by the relevant parliamentary committee was somewhat inconsistent. On September 16, this draft law was recommended by the committee for adoption in the first reading. However, on the voting day, the Committee on the Organization of State Power and Local Self-Government decided to recommend that the Verkhovna Rada send the draft law for another first reading.

Nevertheless, even this decision was not supported by the parliamentarians. The proposal to return the draft law to the subject of the right of legislative initiative for revision was also not supported.

CPLR assessment

CPLR experts are of the opinion that the draft law contained many positive changes. They concern, in particular, the appointment of the winner of the competition with the highest rating and the reduction from 5 to 3 of the selected candidates; elimination of the “famous” Article 87 of the Law of Ukraine “On Civil Service” (which provides for the possibility of dismissal of a civil servant in the event of a change of political leadership and which has been repeatedly criticized by experts); laid the foundations for the formation of candidate and personnel reserves for civil service positions; further strengthening the role of the fixed salary in the remuneration of civil servants.

In addition, the draft law contained a number of disputable and even some controversial provisions. Disputable provisions should be finalized while controversial ones should be abandoned. However, this should not have prevented the adoption of the positive changes contained in the draft law.

It should be reminded that in September 2019, the Law of Ukraine “On Civil Service” underwent destructive interventions. The purpose of the draft law No.3748 was both to correct the most glaring mistakes of September 2019 and to resolve the issues raised by the practice of recent years.

Accordingly, in our opinion, the draft law should have been adopted in the first reading.

CPLR experts believe that there are two main reasons for rejecting the draft law:

1) among the part of the parliament that is ready to vote for governmental draft laws, there are quite many deputies who do not want competitions to be applied in entering the civil service, as they believe that appointing without competitions is much more effective,

2) a large group of deputies was formed in the “Servant of the People” faction, who systematically express distrust of the Government by such votes. This trend became especially obvious against the background of the budget process.

No proper communication work was carried out with other parliamentary factions.

Therefore, the situation with this draft law shows that both the credibility of the Government and the prospects for the implementation of public administration reform under the current composition of the Parliament are under threat.

Restoring key principles of the civil service requires even greater efforts. This task can be done only if the executive power, representatives of all pro-Ukrainian factions of the parliament and the public work together.



Law Enforcement Committee supported Government initiative on effective mechanism for reviewing the sentences on life imprisonment


Event

On September 30, the Verkhovna Rada Committee on Law Enforcement recommended to adopt in the first reading the governmental draft law No. 4049, which implements measures of a general nature to execute a number of decisions of the European Court of Human Rights. Among other things, it includes the creation of a mechanism for reviewing the sentence of life imprisonment.

It is proposed to allow persons sentenced to life imprisonment who have served at least ten years of such punishment to apply to the court for a replacement with a milder punishment. If such an application is satisfied, the sentence of imprisonment will be changed from fifteen to twenty years, i.e. the person will in total serve at least twenty-five years of imprisonment. The rules of release on parole may be applied to the replaced punishment.

The issue of replacement of punishment will be considered collectively by a court of three judges. Those sentenced to life imprisonment who, at the time of entry into force of the proposed law, will serve more than ten years of the sentence imposed by the court, have the right to replace such punishment for a term of five to twenty years (but not less than twenty-five years).

CPLR Assessment

The governmental initiative implements the Decision of the European Court of Human Rights “Petukhov v. Ukraine (No.2)” (application No.41216/13) dated 12.03.2019 in terms of general measures. In this decision, the Court develops the previously formulated concept of the “right to hope”: a sentence of life imprisonment without a real possibility of revision of punishment causes a person such moral suffering that reaches a minimum level of cruelty sufficient for torture, which in turn is a violation of Article 3 of the Convention. In fact, there has been a humanization of punishment in the European area – anyone sentenced to life imprisonment can count on release over time.

In the Court’s view, pardon by the President of Ukraine, which remains the only way for persons deprived of their liberty for life term to commute their sentences, is “the modern equivalent of the royal prerogative of pardon” (paragraph 180 of the Decision) and not an effective mechanism based on penological grounds and relevant procedural guarantees.

CPLR experts are positive about such an initiative and once proposed a mechanism for reviewing sentences to convicts under the rules of the old CPC of Ukraine dated 1960. Often, such sentences were based on one piece of evidence – “guilty plea”, which was obtained under pressure from law enforcement officers. According to the rules of the current CPC of Ukraine, such proof is inadmissible, but there are still no grounds for reviewing the sentences of “life imprisoned”. Of course, not all “life imprisoned” were convicted with breaches of procedural safeguards, which should have led to the admissibility of evidence, but the mechanism proposed by the Government may partially restore justice in this matter.

As of today, 1,355 persons with life sentences have already served ten years in prison and will be entitled to a review of their sentences. In general, according to statistics from Council of Europe experts, those sentenced to life imprisonment in European countries are less likely to be re-imprisoned because they are well aware of the consequences of re-sentencing. In addition, they are getting old, which also discourages the commission of new crimes from a criminological point of view.

In conclusion, those sentenced to life imprisonment will receive the “right to hope”, and those convicted on the basis of “guilty plea” will receive at least some realistic instrument of release from life imprisonment, even if replaced by imprisonment for a fixed period.