Three months have passed since the new Parliament started working. How did the law enforcement authorities change over these period?
The sphere of criminal justice covers a wide range of activities, i.e. the activities of police and prosecutors, anti-corruption bodies investigating crimes, the “Lozovyi amendments”. And all these activities end up with the criminal procedure legislation. Since Volodymyr Zelenskyy team started their work, we hear daily about high-profile reforms, and it is difficult for even a careful reader to understand what has been done and planned to be done and what has really changed in this area.
In any public administration reform, there are at least three components: legislation, institutional practices (enforcement), and human resources – people on the ground. The problem of public discourse on reform is the misunderstanding of politicians, activists, and sometimes even experts, that any reform consists of those components. One cannot appoint a “good person” to a position and expect qualitative changes – either the person will prove to be unprofessional or cease to be “good” or his activities will be sabotaged by deputies. Similarly, one cannot hope for qualitative changes from the “ideal law”, or that dotty reforms in the individual units will affect the state of affairs. Any reform is a gradual move in all three directions.
As to the public policy documents, officials have traditionally ignored the effectiveness of long-term planning at the state level. Therefore, having a number of strategies, concepts and plans is useful in case there is a “political will” to implement them by central government. Weber bureaucracy has not yet been born in our country, because the influence of politicians on officials remains decisive. The sphere of criminal justice is no exception.
The key document here should be the Criminal Justice Reform Strategy, which the Prosecutor General Ruslan Riaboshapka has not yet presented, although he promised to do so back in October 2019.
It should be a continuation of the Criminal Justice Reform Concept of 2008 – one of the few documents that has had a major impact in this area. From the promises previously made the Prosecutor General’s Office only sent to the Commission on Legal Reform under the President of Ukraine a draft Strategy for Combating Torture in Ukraine for the period 2020-2022. It is important. However, it remains necessary to start with general (framework) documents, particularly in the area of reform of prosecution authorities.
Criminal procedure law requires systemic changes being now the main tool in hands of law enforcement. Two working groups are working on such changes – one set up in October at the Law Enforcement Committee and one launched in November under the Prosecutor General’s Office. Their main task is to prevent chaotic changes made to the CPC of Ukraine which imbalance the process and adversely affect the effectiveness of the investigation. How they will coordinate their activities and what has already been done is a separate question.
At present, the positive changes are the abolition of part of Lozovy’s amendments and the introduction of certain amendments to the Code on Criminal Procedure of Ukraine which simplified the work of pre-trial investigation bodies. It is eloquent that it has now become possible to read only a brief statement of the indictment which in practice meant a 5-minute announcement of the charge to the former State Fiscal Service Head instead of reading it for 1.5 years in dozens of court hearings.
Prosecution bodies reform is popular in a public debate. In addition to the top-level staffing changes, only prosecutors’ attestation and approval of changes to the profile law began to ensure it. As of today, the prosecutors of the Prosecutor General’s Office are undergoing “classic” certification – tests for legal knowledge, logical thinking and interview with the commission together with a practical assignment.
The attestation commissions are comprised of the members of the public delegated by non-governmental organizations. The attestation should be completed at the level of the GPU by the end of the year, in the regional prosecutor’s offices – in the first quarter of 2020, and in local ones – by September of the same year. Despite a number of criticisms, this attestation is more sophisticated than the previous ones, since there is little chance of challenging the dismissal afterwards. The reason is in the amendments to legislation which fully spelled out the attestation procedure.
However, the prosecution reform has a more far-reaching influence. For example, reducing the number of prosecutors from 13,000 to 10,000 by reducing unnecessary administrative positions (e.g. endless teaching departments). The burden on the prosecutor in criminal proceedings will not change; also, there will no crash of the investigation. Or by terminating the activities of the Qualification and Disciplinary Commission of Prosecutors and delegating its functions to the disciplinary commissions which will be created one per each region (oblast).
This move is not endorsed by international experts because of the over-empowerment of the Prosecutor General. However, it is hoped that the mentioned move is temporary. Another example is to provide the prosecutor’s office with the function of coordinating pre-trial investigation bodies, since procedural guidance provides for the management of the entire investigation, and the prosecutor makes key decisions in the investigation of criminal offenses. This is an exhaustive list of plans announced by the new Prosecutor General’s Office leadership.
The Ministry of Internal Affairs remains under the leadership of Arsen Avakov. Due to political reasons, the composition of his deputies is hardly updated, and the second person after him is his long-time political ally Anton Gerashchenko. At the same time, the President of Ukraine has to fulfill the promise made during Avakov’s appointment, i.e. it is temporary, for about six months, until a decent candidate is found among the deputies. At least, nothing different has been said since then.
The Ministry of Internal Affairs is guided by the 2020 Development Strategy and the Action Plan for its Implementation, a long-suffering document that is wished for better. But the main challenges for the police have not changed: high-level crime, and its structure, compounded by organized crime and illegal arms trafficking. The investigation officials have yet to abstain from torture or other ill-treatment, and police investigators are unlawfully detaining people. Qualitative changes in the reform of the criminal block are slow and are more concerned with the formation or liquidation of departments.
The key problem is the overload on an investigator inside police, which can reach 300 criminal proceedings at a time – but will not be solved any time soon. In November, the Law Enforcement Committee proposed that the Parliament postpones the entry into force of the Institute of Misdemeanors. It would simplify the investigation of small and medium-sized crimes, unload the investigation by delegating the function to investigate misdemeanors to special investigators. The latter would be selected from the investigation, patrol police and police juvenile prevention officers. Reasons for the delay: failure to launch the Unified Register of Pre-trial Investigations, under the responsibility of the prosecutor’s office; criticisms of the procedural part of the misdemeanors by the Ministry of Justice based on the opinion of the Council of Europe Directorate-General.
The reputation of the State Bureau of Investigation (SBI) is controversial: some accuse the director of the Bureau of political cooperation with the authorities and almost draining the materials of the former Yanukovych-era official, i.e. Portnov. The truth is somewhere in the middle: the SBI leadership is conducting its “political game”, while professional field investigators are trying to form a new practice of investigating official crimes.
At first glance, SBI Director Roman Truba successfully took advantage of the change in political leadership of the state. It was the President of Ukraine who introduced a bill to the Parliament to extend the powers of Truba to the sole leadership of the Bureau. However, this is a Pyrrhic victory, because with the efforts of politicians and activists, this bill envisages a reboot of the Bureau – the dismissal of the leadership and the competitive election of a new one.
So, when Director’s powers increase, a new person will occupy the position. At the same time, this is hypothetical, as Parliament may reject the initiative. The way in which a person is dismissed because of changes to the law is contrary to the principle of the rule of law. The law provides for the exceptional grounds for dismissal of a Director, although there is nothing about the inefficiency of its work. This was the intention of the law – the invariability of a Director despite the political changes in the country, as the SBI investigates crimes of all high-ranking officials, including Presidents of Ukraine, whose powers have been terminated. It is unlikely that the same politicians and activists would be offered to dismiss a Director of NABU without the conclusion of the audit and other grounds stipulated by the relevant law.
Забулося питання нардепів попереднього скликання про аудит діяльності Директора НАБУ з можливим його подальшим звільненням, а сам орган посилився через повноваження з автономного “прослуховування” в межах негласних слідчих дій, яке Парламент надав НАБУ та ДБР у листопаді.
Today, the National Anti-Corruption Bureau (NABU) has not yet undergone reforms to investigate corruption crimes. The question of MPs of the previous Parliament’s convocation about the audit of the activities of the NABU Director with possible subsequent dismissal was forgotten. Moreover, the NABU was strengthened because of the powers of autonomous wiretapping during secret investigative actions that the Parliament provided to the NABU and the SBI in November.
Another anti-corruption body – the Specialized Anti-Corruption Prosecutor’s Office, which handles procedural guidance in top-corruption offenses, does not receive attestation, so they work in a “regular” mode. The results of the NABU’s work are now being finalized, as the Higher Anti-Corruption Court of Ukraine has been operating since September.
The Law of Ukraine “On National Security”, passed in 2018, envisaged the reform of the Security Service of Ukraine (SSU). At least the respective bill was to be drafted by January 2019. However, the problem is still there: the draft law on reforming the SSU is still in progress. Fragments of the document were published from various sources, and without a definitive text it is impossible to estimate the direction of the reform. The key to the recommendations of international partners is that the SSU should become a classic counterintelligence body, demilitarized and without the function of pre-trial investigation. The authority of this body – crimes against national security, smuggling and terrorism – should go to the State Bureau of Investigation. However, in times of war, many citizens question this.
In addition to the decriminalization of bogus entrepreneurship in September, there have been no major changes in the area of financial crime investigations. Although the crime was used to pressure law enforcement business, the tools remain tax evasion (tax police) and terrorist financing (SBU). The main bet from the authorities is the creation of a Bureau of Financial Investigations, which will completely stop investigations of financial crimes by other bodies.
The Verkhovna Rada voted in favor of this bill in the first reading that is being considered by the Committee on Finance, Tax and Customs Policy. In fact, the investigation is carried out by a semi-legal tax police (Fiscal Service of Ukraine body) and investigators of the National Police specializing in economic crimes. Despite the statement by the government and the Ministry of Internal Affairs about the liquidation of the Department of Economics, the rules of procedure do not leave the police with a choice of procedural law, and it continues this investigation.
Last year, the initiative of former Chief Military Prosecutor Anatoliy Matios was loudly focused on investigating military and war crimes “in the hands” of the military. The State Bureau of Military Justice proposed to be created by sister of Matios was to become a full-fledged pre-trial investigation body, and military judges were scheduled to return. Currently, the SBI is successfully completing these tasks, as evidenced by 499 indictments for the first half of the year, 94% of which are war crimes. Therefore, the urgency of setting up a new pre-trial investigation body is null and void.
In November, the President of Ukraine submitted to the government 182 decrees in various spheres of public administration in an unconstitutional way. Among them is the creation of a military police force. At present, there is no concept of such a reform, so it remains to be predicted whether it will be a simple reorganization of the Military Law Enforcement Service (analogous to the Internal Security Service in the army) or the creation of a full-fledged pre-trial investigation body based on Matios’ initiative. The first option is useful for the state, the second means a return to Soviet justice.
It is difficult to evaluate the new criminal justice authorities.
On the positive side: the direction is truly European integration, despite the continued desire of law enforcement agencies to preserve the post-Soviet state of affairs. The downside is the non-publicity of decisions in small working groups and, as a consequence, criticism of the authorities for any steps by uninformed experts. After all, part of the initiative is the “good man” concept, which may have a positive short-term impact on the political arena, but will produce a positive result in the long run. For example, in terms of the prosecutor’s institutional independence or the organizational capacity of the SBI.