The novelty effect
Last year was generous with rule-making events in the criminal sphere. Some novelties in criminal and criminal procedural law, both those implemented realized and the declared, make lawyers and business representatives particular concerned, while significantly heating up the degree of expert discussion and public tension
It’s obvious that the Criminal Procedural Code of Ukraine (the CPC) would not hold the legislative constancy bar high, despite the fact that the criminal sphere does not belong to the priorities of the current procedural stage of judicial reform. While in the first two years of its operation lawmakers were limited mainly by local corrections, judging by the trends of 2015 they decided to forward their efforts to conceptual changes. However, the progressive European orientation of the majority of the provisions contained in the CPC is leveled in the process of enforcement. And lawmakers, instead of prompt-ly responding to emerging challenges in practice, generate new ones with their sometimes inconsistent rule-making activities.
The corruption component
Special demand for the “criminal matter” emerged when Members of Parliament began to open new law-making horizons. Among them there were both inside horizons, aimed at toughening the fight against corruption, and external ones, related to the implementation of the Action Plan on visa liberaliza-tion between EU and Ukraine. At the same time, good intentions, as declared in various legislative initiatives, are not always distinguished by legal workmanship of high quality, and proposed mechanisms of their implementation raise serious concerns among experts. For example, this happened with the case of the implementing the idea on introducing a new figure of the public prosecutor in the criminal process. Members of Parliament proposed to provide him with broad powers, those granted today to competent persons conducting pre-trial investigation. The appropriate law with the eloquent title of "On amendments to certain legislative acts of Ukraine regarding the strengthening of the role of civil society in combating corruption crimes” initiated by 16 Members of Parliament, in particular Yulia Tymoshenko, Andriy Kozhemyakin, Elena Sotnik, was adopted by Parliament at the end of May of this year. However, the head of state subsequently exercised his veto to it, indicating serious risks of violation of human rights and freedoms. Although this legislative failure did not cause MPs to drop the idea to strengthen the public presence in the fight against corruption: in fact, similar legislative initiatives were introduced to Parliament again.
Intentions to refuse application of measures that are an alternative to arrest, including a pledge, to persons who are suspected or accused of committing certain categories of crimes, namely corruption and some economic, that are declared in about 10 draft bills, raise many discussions in the professional environment. The mechanism proposed in draft No. 3066 (under the authorship of Yuri Lutsenko, Anton Gerashchenko and other MPs) has high chances in terms of being implemented. A special-purpose parliamentary committee is now working on improving it.
“These legislative proposals cause mixed feelings. On the one hand, any risks provided for by law are excluded, and, of course, this ensures fulfillment of procedural obligations by the suspect or accused. On the other hand, restrictions on procedural rights are established, whereas all the circumstances, that the court is obliged to assess today, would not be taken into account, including the age and state of health of the suspect (accused)”, Stanislav Kravchenko, Deputy Chairman of the High Specialized Court of Ukraine for Civil and Criminal Cases (HSCU), notes. He also adds that it is a direct way to the European Court of Human Rights, which may establish violation of Article 5 of the Convention for the Protection of Human Rights and Fun-damental Freedoms due to the restriction of the use of preventive measures for certain categories of persons. The judgment in the “Eloev v. Ukraine” case dated November 6, 2008 is an example of an existing legal position of this international judicial body regarding the need for consideration by a court of the issue of the possibility of using a preventive measures alternative to detention.
As for the other, no less debatable rulemaking proposal regarding extension of tools of the institution of special confiscation, Mr. Kravchenko explains: the legislator by using the wording “provided that the offense was committed in cases provided for in the Special Part of this Code” at defining special confiscation in the previous version of Article 96-1 of the Criminal Code of Ukraine (CC), limited the effect of special confiscation, making it relevant only for a small part of official crimes. “The incorrectness of this wording at defining special confiscation has already been recognized by subjects of legislative initiative. Therefore, on April 13, 2014 Parliament adopted the Law of Ukraine ‘On amendments to certain legislative acts of Ukraine in the field of state anti-corruption policy in connection with the implementation of the Action Plan for EU visa liberalization for Ukraine’. The new version of this article of the Criminal Code was provided herein, which has a much broader meaning than its previous version”, our interlocutor emphasizes. Today, legislators propose to extend the possibility of applying the special confiscation without linking it to specific provisions of the Special Part of the criminal law. Stanislav Kravchenko believes that this is worth supporting as it is customary international practice. Along with this he states: the mentioned legislative initiatives are far from perfect, as evidenced by the relevant conclusions drawn by the HSCU. It is clear that not only the perfection of legisla-tive theory but also the practice of its application is important in the issue of implementation of these ideas.
Separation with difficulties
Contrary to popular belief that the trends that have emerged over the last year in the legislative policy discord with the previously declared state policy on humanization of liability for offenses in the sphere of economic activity, Stanislav Kravchenko issues a reminder: the Law of Ukraine “On amend-ments to certain legislative acts of Ukraine on the humanization of responsibility for offenses in the sphere of economic activity” was adopted. This law decriminalized a significant section of offenses and replaced imprisonment for committing relevant offenses with a fine. “This was the main purpose of humanization, and as far as I know, the legislator does not provide changes in this regard”, the expert says, summing up.
The problem of division of criminal and civil liability is still relevant. “This issue was, is and will be relevant both for Ukraine and other countries, and not only in respect of economic crimes, although, of course, it is related to them first and foremost”, the HSCU Deputy Chairman says. Mr. Kravchenko believes that there are intersectoral clashes of norms not only in civil law, but also in economic and administrative, including crimes and administrative offenses division. “First of all, these issues are conditioned upon by the existing clash of norms, blanket dispositions of articles of criminal law, lack of standardized terminology, etc. I agree with the opinion of my foreign colleagues, in particular the judge of the Supreme Court of Lithuania Armanas Abramavičius who notes: excessively active legislative activities on improving legislation, amendments to criminal legislation, generally not of a high legal technique, often lead to norms that are contradictory, vague and compete with other branches of law”, Mr. Kravchenko stresses. In his opinion, leg-islators should consider the opinion of scientists, experts and practitioners in the process of creating new initiatives.
Judicial practice shall not preserve aloofness, particularly the Supreme Court of Ukraine and superior specialized courts. Their powers directly include solving issues related to ensuring the unity of judicial practice for achieving uniform application of the rules of law by the courts. As for the superior specialized courts then, according to Stanislav Kravchenko, their cooperation, the development of common plenum regulations is important in this aspect. In turn, the criminal and civil chambers of the HSCU have already adopted two plenum regulations simultaneously revealing both criminal and civil issues of concern. Another two relevant documents are under development.
Work in progress
Referring to judicial practice, it is just forming in separate new institutions of the CPC. Such as, for example, the conciliation agreement and admission of guilt institutions and special proceedings (in absentia). “The introduction of restorative justice in Ukraine, for which the best known instrument is me-diation (its essence in the context of criminal justice is to reconcile the victim and the offender, to achieve consensus between the parties and to resolve social conflict), is a highly progressive step on the part of legislators”, Stanislav Kravchenko believes. Statistical data is a clear indicator of establishing novations, created in the best European tradition, on domestic legal grounds and effectiveness of using the institution of agreements. According to the data of the HSCU Deputy Chairman, 14,346 agreements were submitted to Ukrainian courts in just the first nine months of this year, 80% of which were approved by a court. The figure of approved transactions was the same for the same period last year. “Judicial practice evidences maintaining the trend of further effective application of agreements institution in criminal proceedings, and, of course, confirms the expectations of the legislator and the public”, the HSCU Deputy Chairman states. However, he admits: despite the stable dynamics of affirmed convictions on the basis of agreements, its mechanism is still not fully worked out by judicial practice and is insufficiently studied by science, when we consider the fact that this institution is new to the criminal justice. Therefore, available practice is not short of some shortcomings. The latter lie in the lack of experience in applying the provisions of the CPC to conclusion of agreements, absence of common approaches to solving issues arising when considering this category of proceedings, misinterpre-tation of current legislation and as a consequence — its improper application by judges, investigators and prosecutors. These shortcomings may be elim-inated by conducting appropriate generalizations, developing recommendatory clarifications, and, as a result, adopting an appropriate resolution. Accord-ing to Stanislav Kravchenko, the HSCU is working on this at present.
As to another know-how of criminal procedural law — special legal proceedings, the so-called trial in absentia. It appeared in the CPC relatively recently and it is still too early to talk about its effectiveness. According to Stanislav Kravchenko, this is firstly due to the fact that this institution was introduced only one year ago, and secondly, that this innovation relates to a separate range of subjects. The feature of these subjects is not only the committing of certain categories of socially dangerous acts, but also their further behavior (for example, if they are hiding from bodies of investigation and trial outside of Ukraine with the purpose of avoiding criminal liability). According to the data of Mr. Kravchenko, there is no relevant legal proceeding in Ukraine today; however, investigating judges have already received petitions to conduct a special pre-trial investigation. In particular, such petitions were approved in Lviv, Rivne and Donetsk.
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