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Weekly analytics for 30 June – 6 July 2020

06.07.2020

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. 

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National Reform Council received a mandate from the President to prepare for radical judicial reform


Event

On June 30, Mikheil Saakashvili, the Chairman of the Executive Committee of the National Reform Council said that President of Ukraine Volodymyr Zelensky gave the following assignment for July: “to prepare a fundamental concept of revolutionary judicial reform before the next meeting of the National Reform Council. The President clearly said that neither half-measures nor partial measures are acceptable”. According to Saakashvili, the President has “a very radical attitude” on this issue.

CPLR assessment

In his election program and public statements, President Volodymyr Zelensky repeatedly drew attention to the need for judicial reform:

“Due to poor judicial reform, we have not received a reset and renewal of the judicial system – on the contrary, the previous authorities did everything to make judges depend only on them. Only decisive measures can enforce the law. Such decisive measures are the weekly deprivation of judges’ robes of those who are unworthy of the high title of judge. Moreover, the clean-up should concern everyone – and first of all, judges of higher instances” (September 2019, meeting of representatives of public authorities).

“We have a difficult situation with the courts. It has always been very difficult. … We are talking about protecting our investors.… We are sure that we will live to see the judicial system rebooted” (February 2020, commentary on court decision to suspend the concession of the Kherson seaport).

At the same time, the legal actions of President Volodymyr Zelensky in the field of judicial reform did not agree with his public statements.

In June 2019, the President set up a Legal Reform Commission to develop a concept for future judicial reform, but it included individuals on whom the Public Integrity Council concluded that they did not meet the criteria of professional ethics and integrity (see weekly analysis of events of June 24 – July 1, 2019). At the same time, the relevant working group on judicial reform within the Commission is not actually involved in policy development in this area.

Without waiting for the Commission’s proposals, in August 2019, President Volodymyr Zelensky introduced to Parliament a draft law on the judiciary (No. 1008), which contained significant risks of increasing the political dependence of judges and the control of the judiciary. In the revised version, the law provided for verification of the integrity of future and current members of the High Council of Justice (hereinafter – the HCJ), which is one of the key bodies in the judiciary and largely a guarantor of the independence of the judiciary. However, due to the fact that the HCJ itself played an important role in this verification, it successfully sabotaged its cleansing until the Constitutional Court of Ukraine declared the relevant provisions unconstitutional in February 2020 (see weekly analysis of the events of November 25 – December 2, 2019, February 4-10, 2020).

In September 2019 and February 2020, the President appointed persons with undisputed doubts about their dishonesty (and therefore potentially dependent) (see weekly analyzes of the events of October 28 – November 4, February 4-10 2020), which may indicate an attempt to gain influence over this body through dependent judges.

In June 2020, the President, demanding radical and substantial judicial reform, introduced in Parliament a draft law on the activities of judicial authorities, which in fact does not provide for any reform of these bodies, ignores Ukraine’s commitments to the International Monetary Fund to improve integrity standards in the activities of the HCJ. Moreover, it contains the risks of even greater dependence of the judicial system by concentrating the levers of influence in one body – the HCJ without a qualitative change in its composition (see the weekly analysis of events of June 15-22, 2020). At the same time, the President again offered to give the HCJ itself a key role in the formation of the new HQCJ. Earlier, the HCJ defined the conditions of the competition for the HQCJ that allow it to manipulate the results of the competition for HQCJ (see weekly analysis of events of November 11-18, 2019, December 2-9, 2019, December 9-16, 2019, January 13-20, 2020, January 20-27, 2020).

Currently, President Volodymyr Zelensky’s public statements on judicial reform differ significantly from concrete actions. This is obviously the result of a lack of a well-prepared, coordinated and consistent policy in this area that would be in line with the Constitution, election campaign promises and international obligations.

Giving the Executive Committee of the National Reform Council responsibility for policy-making in the field of justice reform can, on the one hand, be a step towards solving this problem and, on the other hand, a distraction from real actions aimed at strengthening the influence on the judicial system.

 



From 1 July, drunk driving became a criminal offense. The law published on July 3 did not change this


Event

On July 3, Law No. 720-IX “On Amendments to Certain Legislative Acts of Ukraine in Connection with the Adoption of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Simplification of Pre-Trial Investigation of Certain Categories of Criminal Offenses” (hereinafter – the Law No. 720 ) was published following its adoption on June 17.

In particular, this law (paragraph 117), amended the Law No. 2617-VIII “On Amendments to Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses” of November 18, 2018 (hereinafter – Law No. 2617), which in turn amended the Criminal Code (CC), Criminal Procedure Code (CPC) of Ukraine and the Code of Ukraine on Administrative Offenses (СUAO). Among other things, Law No. 2617 recognizes the following actions as criminal offenses:

1) driving the vehicle under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction;

2) transfer of control of the vehicle to a person who is in a state of such intoxication or under the influence of such drugs;

3) refusal of the person driving the vehicle to pass a medical examination for intoxication or the use appropriate medicines;

4) use by the driver of a vehicle after an accident with his/her participation of alcohol, drugs or medicines made on their basis (except for those that are part of the officially approved first aid kit or prescribed by a medical professional);

5) the same (paragraph 4) – after the vehicle has been stopped at the request of a police officer, before the authorized person conducts a medical examination to establish the condition of alcohol, drugs or other intoxication or the use of medicines.

The same Law sets out a new version of Article 130 of the CUAO, which excludes administrative liability for driving a vehicle in the state of intoxication and other relevant actions.

Introduction of these amendments is indicated in sub-paragraphs 2–4, 7, 171 of paragraph 1 of part I of the Law No. 2617.

According to Law No. 720, these items are excluded from Law No. 2617.

Law No. 2617 entered into force on July 1 this year. From that day, Article 286-1 “Driving under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction” became part of the “body” of the Criminal Code, and Article 130 of the CUAO retained responsibility for driving intoxicated only in relation to river, sea and small vessels.

Law No. 720, as stated in its section II, was to enter into force “from the date of entry into force of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses” of November 22, 2018 No. 2617-VII”. However, it was published in the newspaper “Voice of Ukraine” only on July 3, 2020, i.e. after the entry into force of Law No. 2617.

CPLR assessment

According to Articles 57 and 94 of the Constitution of Ukraine, “laws … defining the rights and obligations of citizens, not brought to the attention of the population in the manner prescribed by law, are invalid”, “a law shall enter into force ten days after the date of its official promulgation, unless otherwise provided by this law, but not earlier than the day of its publication.”. Based on these provisions of the Constitution of Ukraine, Law No. 720 entered into force only on July 3 this year.

In accordance with parts 2, 3 and 6 of the CC, the laws on criminal liability adopted after the entry into force of this Code shall be included in it after their entry into force; criminal illegality of the action, as well as its punishment and other criminal consequences are determined only by this Code; amendments to the legislation on criminal liability may be made only by laws amending this Code and/or to the criminal procedure legislation, and/or to the legislation on administrative offenses. The same is stated in Article 2 of the CUAO: amendments to the legislation on administrative offenses may be made only by laws amending this Code and other laws establishing administrative liability and/or to the legislation on criminal liability and/or to criminal procedural legislation.

Thus, Law No. 720 did not abolish the criminal penalty for driving in the state of intoxication and did not restore administrative liability for these actions, as it did not amend the CC and the CUAO directly in this part.

Parliament passed Law No. 720 shortly before the criminalization of this offense, but the amendments to the CC and the CUAO under Law No. 2617 came into force before the publication of Law No. 720, which was supposed to repeal these changes. However, with the entry into force of Law No. 2617 on July 1, the amendments were included in the CC and the CUAO, and Law No. 2617 expired. Therefore, amendments to this law in order to repeal the norms of the CC and the CUAO, which have already entered into force, have no legal consequences: the text of the CC and the CUAO in this part was not changed by Law No. 720.

Now the Verkhovna Rada can restore administrative responsibility for drunk driving and other relevant actions only by amending the CC and the CUAO.

Instead, the Ministry of Internal Affairs of Ukraine and the National Police of Ukraine should provide the police with by-laws and the necessary training for police officers as soon as possible so that the current legislation on criminal offenses is properly implemented.