HOW THE PRESIDENTIAL CANDIDATES WANT TO REFORM LAW ENFORCEMENT AGENCIES AND CRIMINAL JUSTICE: PROGRAM ANALYSIS – YEVHEN KRAPYVIN

If we analyze in detail the programs of all 44 presidential candidates in Ukraine, it seems that the reform of the law enforcement agencies and the criminal justice system as a whole is hardly paid attention to. Prospective presidents toy with the promises of socio-economic reforms, fight against corruption and, at best, clearing the judiciary. But don’t we have any problems with the police, the prosecutor’s office, the new law enforcement agencies?

There is slightly more than a month left before the presidential elections and we have a record number of candidates running for office. However, each politician should be valued not only for their previous successes/defeats or connections with the oligarchs, but also for those public policy actions that he or she promises to take today. That is why critically minded audience should look at the programs of the candidates which were written by the team, rather than just believe the information slogans in the media.

Civil society has already evaluated candidates’ programs for compliance with the current anti-corruption reform, judicial reform and compliance with the Constitution of Ukraine. For my part, I would like to comment on those intentions that the presidential candidates in Ukraine have in relation to the reform of law enforcement agencies and, in general, criminal justice. And I want to do this not only in terms of compliance with the reforms that are being implemented in this area, but also in general the principle of the rule of law, which is our key to Europe in the context of legislative and institutional changes in the governance of the state.

So, without questioning the truthfulness of the current rankings of candidates, I propose to start with the program of the candidate with the highest ranking according to three sociological companies (KIIS, Socis, Razumkov Centre). I want to note that not all candidates have paid attention to intentions in the areas I have indicated or paid so little attention that there is nothing to comment on. For example, Yuliia Tymoshenko left these issues out.

Volodymyr Zelenskyi: “A suspect in corruption crime will not be released on bail. Property confiscation and a lifetime ban on holding public office will be applied to a person sentenced for corruption offense. Corruption whistleblower will be under the protection of the state and will receive financial incentives.”

Anti-corruption is one of the key issues in Zelenskyi’s program. However, the proposal of preventive measure in the form of detention (i.e., without the judge’s right to levy bail) having no alternative contravenes the Convention for the Protection of Human Rights. For a long time, the practice of the European Court of Human Rights (as well as Criminal Procedure Code of Ukraine) has been emphasizing that the state must prove the risk of escaping or obstructing pre-trial investigation otherwise in order to apply an exceptional precautionary measure and send a person to remand prison. The only exception is violent crimes in which case judge can levy bail or not levy bail making a decision on detention. We have recently seen this in the case of Manher who was given the opportunity to be released on bail despite the fact the judge could not give him such a right. Because here it is a question of social danger and the probable need for isolation of a person from society, which is never the case in economic and corruption crimes. Therefore, it is better to bring to justice the border guards who “release” officials suspected of corruption crimes with soft preventive measures rather than make changes that directly contradict Ukraine’s commitments to the Council of Europe.

Petro Poroshenko: “The criterion to measure success of law enforcement agencies reform will be the trust of citizens, the sense and the real possibility of everyone’s safety.” The very statement is very true. However, based on the example of the National Police the main criterion for the effectiveness of which is the trust of citizens (Part 3 of Art. 11 of the respective Law), we can say that such an assessment model does not work yet. Despite all the requirements of the civil society to comply with the provisions of the Law and to assess performance through independent sociological services, according to the protocol with the trust and safety criteria, it has not been done so far, and the assessment is based on quantitative and statistical indicators of crime solving that are often presented in a distorted form. So, this is so far a beautiful slogan which is repeated by everyone from Avakov to Hroisman.

Yurii Boiko: “A municipal police will be created, and citizens will be able to choose its heads”. The idea of municipal police is not new, but our state still cannot choose between the model of centralized police and the municipal police, i.e., police detached from the center in terms of management and police which is financed from the local budget. Let me remind you that in 2015, the law on municipal police was adopted in the first reading; it was because of the lack of a unified vision of authorities on the issue of police decentralization that the parliamentarians did not continue considering the law. The biggest concern of society is the transformation of municipal police into a puppet army of local politicians. We now see elements of this risk in the activities of the municipal guard of Trukhanov, Kernes, Filatov … Note that this idea is also offered by Serhii Kryvonos.

Anatolii Hrytsenko: “The Security Service of Ukraine, the Prosecutor General′s Office of Ukraine and the National Police will not patronize or ruin businesses – they will be deprived of influence on the economy and will defend the constitutional order, counteract terrorists and saboteurs, they will be engaged in counter-intelligence, fight against crime and ensuring public order.” The idea of depriving the above bodies of jurisdiction over economic and financial crimes demonstrates the urgent need for the tax police reform. Let me remind you that in 2017 the Minister of Finance Oleksandr Danyliuk was actively promoting the idea of establishing a Financial Investigation Service (FIS) which could accomplish this task, and in 2018 the Chair of Tax Policy Committee Nina Yuzhanina – suggested National Bureau of Financial Security (NBFS) which would partially give impetus to this reform. So Mr. Hrytsenko is talking about the absolutely necessary thing, because the lack of pressure on businesses by the state equals more transparent business rules, which will ultimately make Ukraine attractive to foreign investors and result in the economy growth as a whole. I wrote about this in detail before in one of my previous blogs.

Oleh Liashko: “I will implement a genuine judicial reform – I will fire all the previous prosecutors and judges, and the new ones will be elected by people at the elections, the way it is done in the USA”. The dismissal of “all the previous prosecutors and judges” is possible only in an unconstitutional way – we have been there with lustration the resolution on which is about to be approved by the Constitutional Court of Ukraine. With regard to elected positions – not all of them are elected in the USA, each state has its own specifics. Is it possible in a country where people sell votes at the presidential election “for buckwheat”, and success in single-member districts is measured exclusively by the amount of money invested in such buckwheat? I am more than sure that it is not. The same elected positions are offered by Yurii Boiko, Serhii Kaplin, Serhii Taruta, Hennadii Balashov, who is good in words, but may actually become a threat to national security.

Oleksandr Shevchenko: “Ratification of the Rome Statute and further appeals to the International Criminal Court in the Hague to prosecute for crimes against humanity in the territory of Ukraine … criminal responsibility of top corrupt officials and bribe-takers – from 10 years to life with the confiscation of property.” Ratification of the Rome Statute is the right move. Let me remind you that one of the reasons behind the slowdown in ratification is the fear of individual MPs for the volunteer battalions in the East which committed crimes in 2014-2015 and remain unpunished for them. Therefore, such a candidate’s intention is a rather bold promise and deserves attention. By the way, the same is offered by Dmytro Hnap. Regarding the second intention – today the Criminal Code of Ukraine contains a balanced system of sanctions for corruption crimes. The problem is not in the scope of sanctions, but the non-compliance with the principle of inevitability of punishment. Therefore, there is no need to reinvent the wheel, because the severe sanctions will still not be applied in practice.

Andrii Sadovyi: “Bring the requirement for the legal education as a prerequisite for appointment to the office of General Prosecutor back into the law … Adopt a law on the protection of whistleblowers and disclosure of information on damage or threat to the public interest.” Regarding the legal education of the Prosecutor General, who is a procedural person, i.e., has the authority to sign charge papers and other procedural documents, we cannot but undeniably support this. Similarly, the protection of the whistleblowers (the whistleblowers institute has long been common in the West) should be a priority for the legislator, along with the reform of the system of protection of participants in criminal proceedings. Let me note that both issues are addressed by draft laws No. 4038a and No. 8457, respectively.

Oleksandr Vilkul: “The only function of the Prosecutor General′s Office of Ukraine is to support public prosecution in court.” This statement in the program is either poorly developed, or simply Vilkul’s team does not know that in 2016 the Constitution of Ukraine was amended in terms of justice. Since then, the prosecutor’s office as a judicial body has only two functions – support for public prosecution in court and procedural guidance over pre-trial investigation. If we remove the second function, then it will be assigned to the heads of pre-trial investigation bodies, won’t it? Who are so jealous of the prosecutor in the process and are trying to influence their subordinates? This is a step back and an attempt to resolve the issue that has been discussed since 2012 with regard to the process manager – prosecutor vs. head of the pre-trial investigation body. I will repeat that, unfortunately, Vilkul either offers a worse option or simply does not know what he is talking about.

Then the presidential candidates started to compete for the most absurd idea. For example, Inna Bohoslovska offered to oblige any citizen elected to a public office to voluntarily consent to the investigative work with respect to that citizen without court authorization within 2 years of appointment. Apparently, Bohoslovska’s team should find out more about the content of “behind-the-scenes” activities of the law enforcement agencies rather than open Pandora’s box, since these two years may turn into a great platform for corruption and abuse by authorities. Yurii Karmazin, in turn, proposes to re-employ illegally dismissed professionals to police. The only problem is that 93% of the police officers continue working after certification, and those who considered themselves illegally dismissed have been successfully reinstated through administrative courts. It only gets worse further: Arkadii Kornatskyi proposes to bring back the prosecutor’s oversight over the observance of lawfulness by the authorities, that is, general supervision. This is not just a non-typical function of the prosecutor’s office (from the Soviet era), but also a huge field for prosecutorial arbitrariness – since it allows any prosecutor to come to a company and demand documents on its activity, etc. Don’t get me started on the fact that it is unconstitutional and contrary to European standards. Finally, Oleksandr Moroz proposes, first, to assign the Ministry of Internal Affairs with the functions FBI has, i.e., to create a “law enforcement monster”, because FBI is actually our SBI, NABU, a part of the investigation units of the National Police combined. Secondly, he proposes to limit the period of investigation and prosecution of criminal cases to 6 months. Even if it is possible for petty crimes, consideration of any serious crime from the moment of registration to the court sentence is simply unrealistic in such a short period. This is a direct path to torture and “beating confessions out” to quickly cope with the investigation of such cases.

Summing up, I would like to note that only certain political intentions regarding the reform of the law enforcement agencies and criminal justice can, in general, be translated into a systemic vision. If we look at the candidates’ statements as priorities, then they can be seen as “flirtation with the electorate” rather than a demonstration of systemic vision. Although this is still better than simple statements “more honest people in the authorities”, it requires more detailed discussion by society. Fortunately, some of the above candidates regularly meet with the expert community, which gives grounds to hope that the agenda for the future of the President will consist of respect for the rule of law and systemic reforms, rather than populist slogans.

Yevhen Krapyvin for Lb.ua

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