Section 1. Monitoring of recommendations on the reform priorities for 2020– May 2021
1. To improve the institution of criminal misconduct. High-quality legislation on criminal misconduct will facilitate the proper and prompt investigation of small crimes, unload of pre-trial investigation bodies and allow to focus released resources on investigation of serious crimes.
With the entry into force of the institute of criminal offenses in Ukraineon July 1, 2020, in general, the efficiency of pre-trial investigation and trial of minor crimes has increased. Due to the reorganization of the infrastructure of the National Police, the burden on the investigative bodies of the pre-trial investigation has halved.
According to the results of the first studies, the overall impact of criminal offenses on the system is positive. The system itself has become more humane as the number of detentions has decreased and the number of precautionary measures applied during the investigation is minimal. The average length of a pre-trial investigation has accelerated about twice, and a trial without the presence of a court and the participation of the parties (this option was chosen by the majority of suspects) has freed up time for judges to hear more complex cases, which has also expedited trials.
The current version of the legislation on criminal offenses does not account for all the critical remarks of Council of Europe experts expressed in the Opinion of the DirectThe current version of the legislation on criminal offenses does not account for all the critical remarks of Council of Europe experts expressed in the Opinion of the Directorate-General for Human Rights and the Rule of Law DGI (2018) on Bill 27 7279-d before the second reading in Parliament. First of all, this applies to the trials on criminal offenses with a simplified procedure.
A practical negative aspect of criminal offenses is the increase in the severity of punishment for certain criminal offenses. If previously the minimum fine was UAH 850 (about 25 euros), now it is amounts to UAH 17 000 (about 500 euros). This amount is sometimes unaffordable for a convict with limited income, so they simply disobey the court's decision expacting that the same court can later replace the sentence with community service, which is a more severe form of punishment under the law, but in fact a less severe punishment for that person.orate-General for Human Rights and the Rule of Law DGI (2018) on Bill 27 7279-d before the second reading in Parliament. First of all, this applies to the trials on criminal offenses with a simplified procedure. A practical negative aspect of criminal offenses is the increase in the severity of punishment for certain criminal offenses. If previously the minimum fine was UAH 850 (about 25 euros), now it is amounts to UAH 17 000 (about 500 euros). This amount is sometimes unaffordable for a convict with limited income, so they simply disobey the court's decision expacting that the same court can later replace the sentence with community service, which is a more severe form of punishment under the law, but in fact a less severe punishment for that person.
2. To establish of the Bureau of Economic Security in accordance with international standards and best practices of a single body, which would be responsible for the investigation of economic crimes.
On March 25, 2021, the Law of Ukraine "On the Bureau of Economic Security", approved due to the achievements of the MPs, entered into force. The formation of the Commission for the selection of candidates for the position of Director of the Bureau of Economic Security of Ukraine is completed (all members are appointed, except for one of the three by the quota of the Parliament). At its first meeting on June 15, the commission elected a chairman and secretary and announced a competition to take place from June 16 to July 7.
The text of the law can be assessed positively with restrained optimism. There is still a lot of work to be done to create a new body, which determines the effectiveness of this reform in general.
There may be an institutional conflict between the Government's financial and fiscal responsibilities and the BEB's mission as a pre-trial investigation body, which may lead to Government interference in the BEB's work.
The text of the law does not contain restrictions on the recruitment of persons who have recently worked in the State Fiscal Service of Ukraine (tax police), specially authorized economic protection units of the Security Service of Ukraine (hereinafter - SBU) or the National Police. The Parliament did not use the quota principle of forming the BEB (following the example of the State Bureau of Investigations), when the number of former employees of the relevant units who can get into the service is limited to a certain percentage. This would have ensured high-quality staff renewal.
3. To reform of the SBU, adopt new legislation on the SBU without the functions of pre-trial investigation and places of detention.
The working group of the Parliamentary Committee on National Security and Defence prepared a draft for the second reading of the draft law "On Amendments to the Law of Ukraine" On the Security Service of Ukraine "to improve the organizational and legal framework of the Security Service of Ukraine" (ed. № 3196- d from 26.10.2020), which proposes to set out the Law "On the Security Service of Ukraine" in a completely new wording.
The proposed wording envisages a number of progressive changes, including a reduction in the scope of authority, a reduction in staff by 10,000, a change in the focus on counterintelligence, the removal of investigative functions, and the demilitarization. It is still difficult to assess the effectiveness, as the sectoral committee and the vote in the Parliament, which is expected in the fall of this year, are still ahead..
The proposed wording does not provide for the existence of places of temporary detention.
Proposals to over-expand the SBU's powers in the counterintelligence sphere and to monopolize "wiretapping" are threatening, which poses a threat to the independence of the NABU and SBI investigations. It is necessary to adopt a separate law on making appropriate amendments to the CPC for its final deprivation of investigative functions.
4. To harmonize of laws with the Constitution of Ukraine. In particular, to change the subordination and functionality of the National Guard of Ukraine and the State Border Guard Service of Ukraine towards militarization and transfer of law enforcement functions to the police.
No action has been taken. Relevant draft law of the President of Ukraine (№ 1007 of August 29, 2019) has not yet been considered even at the level of the sectoral committee of the Parliament.
5. To deprive the Parliament and the President of the unconstitutional functions related to NABU and SBI with their transfer/return to the executive branch of power.
The Constitutional Court of Ukraine declared the powers of the President of Ukraine in relation to NABU as unconstitutional by the Decision of 16.09.2020 № 11-r/2020.
On March 15, 2021, a revised government bill was submitted to the Parliament (№ 5070 of February 15, 2021).), which provides for the transformation of NABU into a central executive body with direct subordination to the Cabinet and the appointment of its Director on the proposal of the tender commission, which is formed from members on the proposal of the Cabinet and the National Security and Defense Council. This legislative initiative should be welcomed as one that finally offers a solution to the constitutionality of the formation of new law enforcement agencies.
On March 16, 2021, the Parliament sent the draft law on amendments to Articles 85 and 106 of the Constitution of Ukraine, which proposes to empower the Parliament to approve, and the President - to appoint in agreement with the Parliament directors of NABU and SBI to the Constitutional Court of Ukraine for obtaining an opinion on the constitutionality.
Activists of anti-corruption organizations negatively assessed the governmental bill and see a threat to NABU's independence in the proposed novels.
The proposed solution to the problem through amendments to the Constitution of Ukraine can hardly be considered constitutional, as the CCU once clearly stated that the powers of NABU and SBI are the powers of central executive bodies, the appointment of heads of which belongs to the Cabinet and this approach cannot be fundamentally changed in view of the basic provisions of Article 6 of the Constitution of Ukraine, which establishes the principle of separation of powers into legislative, executive and judicial.
6. To legitimize the video surveillance by providing the legal basis and secondary legislation for the creation and operation of public video surveillance systems.
No action has been taken yet.
7. To completely abolish the “Lozovy amendments” to the CCP of Ukraine, namely the system for calculating the duration of pre-trial investigations and the possibility to file appeal on the suspicion notice according to the Law No. 2147-VIII.
No action has been taken yet.
Section 2. The current major main challenges in implementing the reform.
The main challenge is the actual beheading of a large number of law enforcement agencies. Thereby, the competition for the position of SBI Director has not even started, and the body has no permanent head since December 27, 2019.
The procedure for electing and appointing the NABU Director is still uncertain, and the powers of the current Bureau Director Artem Sytnyk expire in April 2022.
Since August 2020, the position of the head of the Specialized Anti-Corruption Prosecutor's Office has been vacant. The competition for the position began on January 20, 2021 and continues to this day and is accompanied by a number of scandals.
After one appointment of Serhiy Knyaziev as the head of the National Police of Ukraine according to the departmental competition procedure, the current head of the National Police Ihor Klymenko was appointed without any competitions on September 25, 2019. The Law on the National Police does not provide for mandatory competitions for senior management positions.
The main initiative in the field of law enforcement reform, as shown by key adopted laws (on the introduction of criminal offenses, the establishment of the Bureau of Economic Security, etc.), belongs to the MPs, not the Government or the President.
This approach demonstrates a certain inability of the executive branch to offer a systematic vision of law enforcement development, and most importantly - to achieve the adoption and implementation of its own vision of public policy in this area.
In general, the focus of reforms (apart from the creation of the BES and the SBU reform) has shifted from institutional aspects to the personalities of managers or the procedure for their appointment (between which one can put an "=" sign). Police reform has already been neglected. It is still too early to talk about the successful completion of reforms and the transition to sustainable development.
Section 3. Recommendations on reform priorities for 2021–2022
The monitoring revealed that some of the recommendations on priorities have been ignored altogether, while others are at different levels of completion of the implementation stages. Some aspects are still the subject of parliamentary debate, which delays their implementation.
All previous priorities must be maintained. At the same time, additional emphasis should be placed on standardizing the approaches to personnel policy for senior law enforcement officials. Filling vacancies is crucial for making and implementing drastic changes and policy-making.
In addition, the standardization of approaches to the professional status of investigators and other law enforcement officers remains extremely important - in the issue of military ranks, accrual of cash (minimum share of the bonus in it), social guarantees, disciplinary offenses and the procedure for prosecuting them, common approaches to civil (public) control over the activities of those bodies.