Enhancing Accountability for Court Abuse and Contempt: Legal Analysis of Draft Law No. 11387

On June 28, MPs Stefanchuk, Nehulevskyi, and others introduced draft law No. 11387 to the Parliament.

The document proposes comprehensive amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Code of Administrative Offenses of Ukraine to enhance liability for contempt of court and the failure of participants in criminal proceedings to fulfill their duties. The proposed draft law also addresses issues aimed at minimizing abuses during the judicial review of criminal cases.

On August 22, the Verkhovna Rada adopted this draft law in the first reading, emphasizing the need for revisions before the second reading.

Transparency International Ukraine analyzed the draft law concerning the activities of the High Anti-Corruption Court (HACC) and offered recommendations for its improvement.

Brief conclusions:

• the draft law increases fines and monetary penalties for contempt of court and improper procedural behavior but fails to adopt a comprehensive approach to enhancing the effectiveness of judicial proceedings;
• the proposed amendments to the Criminal Procedure Code of Ukraine could result in incorrect calculations of the minimum wage, leading to inaccuracies in compensation for expenses incurred by participants in criminal proceedings;
• there is a risk of unjustified overloading of judges if challenges against judges must be considered within 24 hours, and requests to cancel monetary penalties are required to be reviewed by a judge other than the one who imposed them. 

We recommend:

• amending the Code of Administrative Offenses to ensure that cases of contempt of court are handled by a different court composition than the one in which the contempt occurred. To achieve this, the court secretary should be required to prepare minutes and forward them for automated distribution to assign a different court composition;
• granting courts the authority to impose monetary penalties on defense lawyers who fail to appear at court sessions without valid reasons;
• amending the Criminal Procedure Code of Ukraine to include the definition of the subsistence minimum for able-bodied persons alongside, rather than replacing, the definition of the minimum wage;
• removing the provision from the draft law that prohibits the court which imposed a monetary penalty from considering a request for its cancellation;
• We recommend extending the time limit for considering a recusal application against an investigating judge or a single-judge trial judge to two days.

How these issues are handled now

Currently, there are issues with the effectiveness of tools designed to encourage participants in criminal proceedings to attend court sessions. These measures are either excessively harsh, such as detaining the accused, or entirely absent. The non-appearance of parties has become a systemic issue for the judiciary, significantly slowing down proceedings and undermining their efficiency and cost-effectiveness. Over its five years of operation, the High Anti-Corruption Court has postponed 1,907 hearings due to the non-appearance of participants.

The Code of Administrative Offenses imposes relatively low fines for contempt of court (Article 185-3), while the rate of holding individuals accountable for such offenses is declining. For example, statistics from the State Judicial Administration show that 35 individuals were held accountable for contempt of court in 2019, 41 in 2020, 16 in 2021, 8 in 2022, and 10 in 2023.

Monetary penalties for procedural violations under the Criminal Procedure Code of Ukraine also remain relatively low. Motions to cancel monetary penalties are reviewed by the same court that imposed them.

The Criminal Procedure Code of Ukraine lacks a definition of the subsistence minimum for able-bodied persons, despite its use in calculating collateral amounts, monetary penalties for non-appearance when summoned, and other related matters. Also, the Criminal Procedure Code of Ukraine does not explicitly prohibit transferring a recusal application against a judge to another judge for consideration.

What amendments does the draft law No. 11387 propose?

Overall, the draft law aims to reduce instances of abuse and enhance the discipline of participants in court proceedings, particularly in criminal cases and administrative offense matters.

Parliamentarians propose amending the Criminal Code, the Criminal Procedure Code, and the Code of Administrative Offenses to solve these and other problems.

For instance, the Code of Administrative Offenses of Ukraine proposes increasing administrative fines for contempt of court, as stipulated in Article 185-3. Following the amendments, the fine will increase to UAH 3,400, while repeated contempt or contempt toward the Constitutional Court of Ukraine will result in a fine of up to UAH 6,800.

In the Criminal Procedure Code, legislators propose doubling the monetary penalties for participants in criminal proceedings who fail to fulfill their duties. Amendments to Article 139, Part 1 of the Criminal Procedure Code of Ukraine, propose introducing penalties for failure to appear before a prosecutor or investigator, ranging from UAH 1,514 to UAH 3,028, and for failure to appear before an investigating judge or court, ranging from UAH 3,028 to UAH 12,112.

The amendments will also strengthen the provisions of Article 179, Part 2 of the Criminal Procedure Code of Ukraine, concerning the responsibility of suspects and accused persons who violate their procedural obligations. The court will have the authority to impose penalties ranging from UAH 1,514 to UAH 12,112.

To ensure greater legal certainty, the authors of the draft law propose specifying the calculation of the subsistence minimum for able-bodied persons in the Criminal Procedure Code of Ukraine and removing the definition of the minimum wage. The new law also seeks to mandate courts to consider applications for the recusal of a judge or an investigating judge within 24 hours and stipulates that motions to cancel monetary penalties must be reviewed by a judge other than the one who imposed them.

Most of the proposed amendments are positive and have the potential to expedite trials by promoting greater discipline among participants. However, certain updates raise concerns that should be addressed during the finalization of draft law No. 11387.

Risks and disadvantages of the proposed amendments

Imperfect procedure for bringing to administrative responsibility for contempt of court

We fully support the initiators’ position that the current administrative fines for contempt of court under Article 185-3 of the Code of Administrative Offenses are disproportionately low and should be increased. However, merely increasing the penalties without addressing other issues related to enforcement under this article will not yield sufficient effectiveness.

For instance, cases of contempt of court under Article 221-1 of the Code of Administrative Offenses are reviewed by the presiding judge of the case in which the violation occurred, raising concerns about the objectivity of such decisions. The European Court of Human Rights (ECHR), in the case of Alenka Pečnik v. Slovenia, addressed similar shortcomings in legal regulation and deemed it unacceptable for the same judge against whom the contempt was committed to preside over the case.

These legislative issues risk placing judges in a position where decisions on holding individuals accountable for contempt of court may violate the right to a fair trial, therefore addressing these problems is essential to restoring the effective application of Article 185-3 of the Code of Administrative Offenses.

To do that, we recommend implementing the following changes:

1. eliminate the provision in Article 221, Part 2 of the Code of Administrative Offenses that requires cases of contempt to be reviewed by the court where the contempt occurred; instead, ensure such cases are transferred to a different judge for consideration;
2. require the court session secretary to draft a protocol documenting incidents of contempt of court. To achieve this, Article 258 of the Code of Administrative Offenses, which specifies cases where a report on an administrative offense is not required, must be amended to exclude the reference to Article 185-3 on contempt of court.

The 24-hour timeframe for considering an application for recusal is insufficiently short

Lawmakers propose amending Article 81, Part 1 of the Criminal Procedure Code of Ukraine to mandate that courts consider applications for recusal within 24 hours. The time limit for examining such applications could positively impact the reasonable timeframe for criminal trials, and the restrictions outlined in other procedural codes further support the validity of this approach.

However, the 24-hour timeframe stipulated in the draft law for addressing this issue is unreasonably short. Setting a one-day time limit is not consistent with other procedural laws, such as the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine, and the Economic Procedure Code of Ukraine. All three codes stipulate that the court must address recusal applications without delay. However, if the application must be reviewed by another judge, a timeframe of two working days is provided.

Therefore, it would be more appropriate to align the deadline for considering recusal applications with the approach adopted in other procedural acts, as follows:

1. in cases where the recusal concerns a panel of judges (or its members), the application should be considered by the same court without delay;
2. in cases where the recusal concerns an investigating judge or a judge presiding alone, the application should be reviewed by another judge within two working days.

Having a monetary penalty canceled by a judge other than the one who imposed it will neither enhance nor expedite the process

Lawmakers propose amending Article 147, Part 1 of the Criminal Procedure Code of Ukraine to prohibit the court that imposed a monetary penalty from considering motions for its cancellation. Instead, such motions would need to be reviewed by another judge, assigned through automated distribution in accordance with Article 35 of the Criminal Procedure Code of Ukraine.

The proposed amendments lack sufficient justification. Firstly, the procedure for canceling a monetary penalty is comparable in nature to the process of reviewing a decision based on newly discovered circumstances. Secondly, these changes could negatively impact procedural efficiency in terms of time and resources.

This is because canceling a monetary penalty is not an appeal but rather involves assessing facts that were unknown to the court at the time of the initial decision. According to Article 147, Part 1 of the Criminal Procedure Code of Ukraine, such a motion may be submitted by a person subjected to a monetary penalty who was not present at the time of the decision. In such cases, the court reviewing the motion evaluates facts that were unknown when the decision was made. Therefore, this procedure, similar to the process of reviewing decisions based on newly discovered circumstances, does not necessitate the involvement of other judges.

Also, some scholars argue that allowing the court that imposed a monetary penalty to cancel its own decision is justified by procedural efficiency. Since the investigating judge or court that issued the ruling is already familiar with the circumstances, they can promptly determine whether there are grounds for canceling the ruling. This approach minimizes resource expenditure.

Furthermore, the person subjected to a penalty has the right to present objections to such a court decision during the preparatory proceedings or include them in an appeal against the case’s final decision.

Therefore, we find it unjustified to prohibit the court that imposed the monetary penalty from canceling it at the participant’s request. This amendment should be removed from the draft law.

The scope of participants in criminal proceedings subject to monetary penalties is too limited

The increase in monetary penalties under Articles 139 (consequences of non-appearance upon summons) and 179 (personal obligation) of the Criminal Procedure Code of Ukraine aims to fulfill a key objective of the State Anti-Corruption Program which focuses on expanding the grounds for imposing monetary penalties on participants in criminal proceedings for violating their obligations and increasing the penalty amounts. However, these amendments should be accompanied by an expansion of the range of individuals who may be subject to monetary penalties for non-appearance, as outlined in Article 139 of the Criminal Procedure Code of Ukraine.

Statistics from the High Anti-Corruption Court alone indicate that the second most common reason for postponing hearings is the non-appearance of defense attorneys. Over five years, 588 hearings were postponed for this reason.

During its monitoring of HACC cases, Transparency International Ukraine has repeatedly observed that the failure of defense lawyers to appear at court sessions significantly impacts the reasonable timeframe for case trials. For instance, notable examples include the hearings in the case of the former Minister of Justice from Yanukovych’s era and the case involving judges of the Kyiv District Administrative Court.

Therefore, in addition to suspects, accused, witnesses, victims, and other participants, it is reasonable to grant courts the authority to fine defense lawyers who fail to appear at court sessions without valid reasons. Coupled with the increase in monetary penalties, this measure will significantly enhance the discipline of all participants in criminal proceedings.

Amending the Criminal Procedure Code of Ukraine to include the determination of the subsistence minimum can result in incorrect expense calculations during proceedings

As part of the proposed clarifications, MPs suggest amending Article 3 of the Criminal Procedure Code of Ukraine to include a definition of the subsistence minimum for able-bodied persons.

The subsistence minimum for able-bodied persons is currently widely used in criminal proceedings to calculate bail amounts, monetary penalties for non-appearance upon summons, and similar purposes. However, the issue persists that the list of terms in the Criminal Procedure Code of Ukraine does not include a definition of this concept. This could lead to the risk of ambiguous interpretation, resulting in incorrect calculation of monetary penalties or, more critically, the determination of bail amounts.

Therefore, while we generally support the inclusion of the term “subsistence minimum for able-bodied persons” in the Criminal Procedure Code of Ukraine, we disagree with the proposed method of its implementation. Specifically, the plan to replace the definition of the minimum wage with the subsistence minimum, rather than placing them alongside each other, raises concerns.

Lawmakers propose excluding the term “minimum wage” from the Criminal Procedure Code of Ukraine, despite its extensive use in calculating expenses incurred during criminal proceedings, as outlined in Articles 121 and 122 of the Code. Excluding this term would create a gap that could result in the incorrect calculation of such expenses.

Therefore, the Criminal Procedure Code of Ukraine should be supplemented with the definition of the subsistence minimum for able-bodied persons in a new, separate paragraph of Article 3, Part 1, while retaining the definition of the minimum wage in the same article.

Conclusions and recommendations

Transparency International Ukraine supports the adoption of this draft law in the second reading but recommends further refinement before its finalization. Without revision, this draft law risks complicating judicial reviews and failing to address existing issues effectively.

In our view, the draft law should be amended as follows.

1. Enhance the objectivity of judicial proceedings for cases of contempt of court by requiring the court session secretary to prepare minutes and transfer them to another court for review. This amendment will improve the efficiency and quality of the procedure for holding individuals administratively accountable for contempt of court while reducing potential grounds for appealing the final decision.
2. Grant courts the authority to impose monetary penalties on defense lawyers who fail to appear at court sessions without valid reasons by including them in the list outlined in Article 139, Part 1 of the Criminal Procedure Code of Ukraine. This amendment will enhance the court’s tools for addressing procedural abuse and unfair behavior by one of the trial’s key participants.
3. Retain the definition of the minimum wage in Article 3 of the Criminal Procedure Code of Ukraine, while adding the definition of the subsistence minimum for able-bodied persons to the terminological section of the Code. This approach will prevent potential gaps that could arise if the draft law is adopted in its current form.
4. Remove the provision from the draft law that prohibits the court which imposed a monetary penalty from considering a request for its cancellation. The current procedure fully aligns with the purpose of reviewing measures of procedural influence.
5. Extend the time limit for considering a recusal application against an investigating judge or a single-judge trial judge to two days. This will eliminate the potential overload of judges that could arise when the law is adopted in the current version.