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Weekly analytics for 8 – 14 September 2020

14.09.2020

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




NAPC published a revised draft Anti-Corruption Strategy. What has changed regarding justice?


Event

On September 8, the National Agency for the Prevention of Corruption (hereinafter – NAPC) published a revised draft Anti-Corruption Strategy for 2020-2024 prepared based on the results of public discussions.

Compared to the original draft, the problems of justice diagnosed by the NAPC in the revised strategy have hardly changed, but the relevant section (3.1) now deals not only with the reform of the courts, but also of the prosecutor’s office and the police.

CPLR assessment

CPLR experts conducted a detailed analysis of the draft Anti-Corruption Strategy submitted for public discussion and generally supported the NAPC’s proposed approaches to combating corruption in the field of justice (more details can be found through the link).

Key provisions in the field of justice, which were preserved in the draft Anti-Corruption Strategy for 2020-2024, include, in particular, the following:

· clean-up of the HCJ and selection of new members of the HQCJ and HCJ, as well as a disciplinary body for judges with the participation of members of the public and international experts, taking into account the criteria of integrity and professional ethics;

· introduction of clear criteria (indicators) of integrity and professional ethics for judges;

· openness of disciplinary practice, including online broadcasting of disciplinary hearings;

· introduction of an effective mechanism for verifying the legality of the origin of the property of a judge and his/her relatives;

· making it impossible for the same person to hold the position of the chairman of the court for a long time.

At the same time, a number of strategic results, the achievement of which would enable to address the problems in the field of justice, have been changed. In particular, the following provisions have been excluded from the draft Strategy:

· description of the essence of the standard of proof “reasonable doubts about the integrity” (“all undeniable doubts about the integrity of the judge are not interpreted in his favor”), as well as the use of this standard in the evaluation of current judges;

· mechanism for reviewing decisions of the previous composition of the High Qualifications Commission of Judges (hereinafter – HQCJ), in particular decisions by which the High Council of Justice (hereinafter – HCJ) refused to dismiss a judge due to unmotivated decision of the Commission, as well as successful completion of evaluation by a judge despite available information about his/her dishonesty;

· open and roll-call voting of members of the HQCJ and the HCJ in the procedures for selection and promotion of judges. Instead, it is proposed to introduce an objective and transparent method of scoring in these procedures;

· empowering the NAPC, the Council of Judges and the Public Council of Integrity to initiate disciplinary proceedings against judges;

· disciplinary mechanism for deprivation of the status of retired judges for actions that are incompatible with the title of judge;

· competitive procedure for the formation of new local courts. Instead, it is proposed to review and create a network of local courts taking into account the administrative-territorial reform;

· introduction of a full-fledged jury trial.

Exclusion of these provisions somewhat reduces the potential of the Anti-Corruption Strategy for combating corruption in the area of justice, which is obviously a consequence of consideration of some remarks that came primarily from the judicial staff. However, this does not prevent the parliament from making appropriate changes at the legislative level.

In relation to the prosecutor’s office, disadvantage of the draft Anti-Corruption Strategy is the lack of a provision on the need to introduce competitive selection of candidates for the position of Prosecutor General (currently the appointment to this non-political position, as well as the selection of candidates is done exclusively in a political way). In addition, it would be more reasonable to include in this section not only the issues of the police, but also the issues of all pre-trial investigation bodies.



First results of auto-fixation of traffic violations demonstrate its effectiveness


Event

At the beginning of September, there were 100 days after introduction of auto-fixation of traffic violations on June 1, 2020.

Auto-fixation is a method of recording traffic violations (currently only speed violations) with a video camera, which is processed in automatic mode. The decision to impose an administrative penalty is sent to the owner of the vehicle, who must pay a fine within 30 days or indicate the person who actually drove the car or who is a proper user (specified in the Driver’s Electronic Office). If the fine is paid within 10 days, there is a 50% discount on the amount of the fine.

According to the police data, since June 1, 2020, 833,949 resolutions on speed fines have been issued, of which about 645,000 (77%) have already been paid. About 25,000 cases with materials were transmitted to the executive service for the purpose of enforcing a fine.

This is the result of operation of 50 auto-fixation cameras. This year, an agreement has already been signed on the installation of 220 new automatic systems on the roads of national significance, and another 400 complexes are planned to be purchased in the coming years.

CPLR assessment

Automatic recording of traffic violations has been introduced in Ukraine since 2014. In particular, the relevant amendments to the Code of Administrative Offenses of Ukraine were adopted back in 2015, and draft bylaws were prepared in 2016. The National Police of Ukraine, in expectation of the auto-fixation from 2015 to 2018, did not record any violations of the speed limit with the help of devices at all. Only the drivers who were stopped by a police officer and admitted their guilt could be brought to administrative responsibility (others who appealed had judicial practice on their side due to the lack of evidence of speeding, because the subjective conviction of the police officer is not enough). As speeding is one of the main causes of road accidents, the lack of control has had a negative impact on road safety.

Since October 2018, TrueCams, devices for semi-automatic recording of speed violations (“radars”) have appeared in Ukraine. Despite the criticism of their implementation, they proved to be quite accurate devices that generate data on speed, geolocation and which cannot be “twisted”, as was the case during the militia times.

For comparison, in the period from October 16, 2018 to January 25, 2019 (3 ​​months), 35,222 speeding resolutions were issued. Consequently, comparing the periods of 3 months, one can conclude that auto-fixation of speeding violations is 23.6 times (833,949 against 35,222 decisions) more effective than “manual” fixation by the patrol officers.

At the same time, it is difficult to assess the overall impact on road safety, as speeding control has a preventive effect, which has a positive impact on the situation with road accidents.

It is also worth noting that in late August, some people’s deputies filed a petition on the unconstitutionality of auto-fixation to the Constitutional Court of Ukraine (according to Olga Sovhya, the representative of the Verkhovna Rada of Ukraine in the CCU).

It is known that the Court has already declared the auto-fixation unconstitutional in 2010 (Decision No.23-рп/2010), but the main reason was violation of the principle of individual punishment, because it stipulated that only the owner of the vehicle is subject to prosecution, regardless of who actually violated traffic rules.

According to Yevhen Krapyvin, a CPLR expert, “compared to a decade ago, now the vehicle owner has the opportunity to indicate who the users are or another person has the opportunity to state that he/she actually drove the vehicle. Moreover, given the general principle of civil law, “ownership obliges”, the owner of the vehicle must understand who drives his/her vehicle and, accordingly, in case of a violation, pays fines. So all these stories about the “general power of attorney” and the loss of contact with the seller will not work. Finally, the “general power of attorney” masks the contract of sale, which is a sham transaction. There is a relevant case law on invalidity on these grounds (against the argument of violation of the principle of individual nature of legal responsibility). In short, I do not see any prospects for declaring auto-fixation unconstitutional.”

In summary, the CPLR positively assesses the implemented auto-fixation and hopes for the improvement of this system (establishment of new rules, increasing the number of channels for informing the vehicle owner of the fact of violation, etc.), as well as for the improvement of the road safety situation in Ukraine.