The High Council of Justice approved the advisory opinion on the draft laws "On Amendments to the Criminal and Criminal Procedural Codes of Ukraine for Strengthening Liability for Corrupt Criminal Offenses in the Sphere of Justice" (No. 9438, No. 9438-1).
In the explanatory notes, the initiators of the draft laws express the expectation that such legislative changes will prevent the commission of corrupt offenses in the future and ensure a fair measure of punishment for offenders - imprisonment for a term of ten to fifteen years. It is noted that especially during the period of martial law, accountability for corruption should be more stringent than during peacetime.
In preparing the advisory conclusion, the High Council of Justice took into account the position of the Supreme Court, set out in the Resolution of the Plenum of the Supreme Court No. 18-1 dated August 4, 2023, as well as information from the Council of Judges of Ukraine, the National School of Judges of Ukraine, and the Main Scientific and Expert Department of the Verkhovna Rada of Ukraine.
The High Council of Justice emphasized the inadmissibility and unacceptability of any manifestations of corruption in all spheres and indicated the unconditional readiness to take measures for self-purification. However, it highlighted that strengthening of criminal responsibility should apply to all spheres, as corruption, as a manifestation of a systemic phenomenon, requires a systemic counteraction.
The level of societal danger posed by corrupt offenses pertains to all aspects of state governance, which is equally unacceptable in the activities of officials across all branches of the government.
In view of this, the High Council of Justice pointed out the need for significant refinement of draft laws, taking into account comments and reservations.
In particular, the High Council of Justice draws attention to the fact that the new sanctions in the draft law propose the most stringent criminal liability for corruption-related criminal offenses in the sphere of justice compared to the sanctions of the articles specified for corruption-related criminal offenses in other spheres.
The proposed new provisions classify all crimes as severe and extremely severe. On the other hand, similar corruption offenses committed by officials in the sphere of official activity and activities related to the provision of public services are punished much more mildly and provide for a less severe sanction depending on the presence of mitigating circumstances and/or the amount of undue advantage.
The Council warns that intensifying responsibility in the sphere of justice only combats the consequences of the systemic phenomenon, which is corruption within a separately defined field, even though this phenomenon is equally spread across all spheres of public life and is not inherent exclusively to the justice system.
Furthermore, such an approach contradicts the established principle of the Criminal Code of Ukraine, according to which when imposing a penalty, the court must take into account the severity of the committed crime, the personality of the guilty person, and the circumstances that mitigate or aggravate the punishment.
Furthermore, the High Council of Justice considers the legislative initiative of draft law No. 9438, which proposes the introduction of an Independent section XVII-A 'Corruption Criminal Offenses in the Sphere of Justice' to the Special Part of the Criminal Code of Ukraine, to be inappropriate. The HCJ believes that this violates the internal structure and logic of the systematization of criminal offenses. In addition, not all criminal offenses for which responsibility is proposed to be included in the new section are corruption-related. For instance, bribing a witness does not encompass all the elements of corruption as defined by the Law of Ukraine 'On Prevention of Corruption.
Also the HCJ points out that draft law No. 9438 proposes to include criminal offenses in the sphere of justice in a standalone section. However, according to the Articles 131-1 and 131-2 of the Constitution of Ukraine, the system of justice includes not only the courts but also the prosecutor's office and the bar. Nevertheless, the draft law does not propose, in line with its stated objective, to enhance criminal responsibility for bribery of a prosecutor or a lawyer.
Regarding the qualifying feature of corruption-related the criminal offenses in the sphere of justice “committing actions during martial law” in draft law No. 9438 and draft law No. 9438-1, the HCJ notes that it is more advisable to systematically address this issue through the adoption of a separate normative legal act. This act would unify the use of the corresponding qualifying feature in the articles of the Criminal Code of Ukraine for differentiation of criminal responsibility for criminal offenses.