Inflation of Criminal Law: How to Prevent Depreciation of Punitive Sector

In 2016, Hanna Yudkivska, then a judge of the European Court of Human Rights, published an article “Twilight of Human Rights and the European Court.” In this material, Yudkivska, on the example of specific cases, spoke about the depreciation (inflation) of human rights due to their too broad interpretation. And this, according to the author, makes their effective protection impossible.

Consideration of human rights from this perspective, as well as a number of recent high-profile criminal proceedings, prompted me to look at criminal law from a similar angle. And here’s what came out of it.

1. Criminal law is the ultima ratio of the state’s response to violations of the rules established by it.

It is criminal law that provides the most severe restrictions on human rights.

Unfortunately, MPs who like to use legislative initiatives to improve their own ratings do not follow this rule.  Non-return to Ukraine after the imposition of martial law, sanctions for ignoring the air raid alert, and a significant surcharge on goods during the war — all this could have become crimes due to parliamentarians’s decisions, despite the obvious groundlessness of attributing such acts to the sphere of criminal law regulation.

This phenomenon can be called legislative populism, which leads to a violation of the basic principles of criminal law and the emergence of “dead norms” — for example, Article 364-2 of the Criminal Code of Ukraine, which establishes liability for “button-pushing” (non-personal voting).

2. Dynamic interpretation of criminal law provisions is possible in exceptional cases

Interpretation of the law is a rather troublesome matter. Especially when this process is complicated by linguistic or logical errors made in the text of the law. Therefore, it is necessary to be especially careful about overcoming these shortcomings during the trial of criminal proceedings.

Another matter is the obsolete nature of the provisions of the legislation used during the trial. Such problems can be eliminated either by amending the legislation or by its dynamic interpretation.

The dynamic result of interpretation can be obtained when the same provisions of the laws acquire new meanings under the influence of internal or external factors. For example, if the concept of “correspondence” in the middle of the last century meant only the exchange of letters by mail, now, it can also be understood as communication in messengers.

At the same time, in my opinion, a change in the interpretation of the provisions of the Criminal Code of Ukraine will not contradict the principle of legality, under such conditions:

1. When the law does not contain an exhaustive definition of a certain concept or provides discretion to clarify its meaning.
2. If the legal position that was established in the application of the provisions of criminal law does not correspond to current circumstances.
3. And also if such an interpretation does not worsen the position of the person.

In the case where a certain interpretation of a legal norm differs from the established one and is not fully based on the literal understanding of the legal status and worsens the situation of the person, the court should formulate a legal conclusion with a new approach to interpretation. But it is necessary to apply it not in this particular case, but to indicate that it can be used in the following similar situations. Of course, such powers are most appropriate for the Supreme Court.

Take, for example, the case of the head and member of the Accounting Chamber accused of appropriating an apartment through privatization.

The prosecution believed that the former chairman of the Accounting Chamber Roman Mahuta and a member of the Accounting Chamber Mariia Shulezhko illegally took possession of the official apartment in the order of privatization. The investigation convinced that Shulezhko did not need official housing, but she received it after her nephew privatized the apartment and gave it to her. At the same time, the prosecution did not cite formal violations of the current legislation.

The court found that the prosecution did not provide evidence of the crime. The court then paid special attention to the quality of legislation on exclusion of housing from the official list because:

–        it lacked clear criteria and conditions under which it could be established that the head of the institution applied for the exclusion of housing from the official list for no reason. And this complicates the assessment of their actions in the context of abuse of office;

–        it has long been known about the problem of shortcomings in the statutory regulation of the treatment of official housing to improve the living conditions of employees of enterprises, institutions, and organizations — this is indicated by explanatory notes to draft laws No.2723 of April 4, 2013; No.5149 of September 20, 2016, as well as the provisions of the Law on the HACC, which expressly prohibits the exclusion of apartments from the official list.

Thus, in this case, there were no grounds for a dynamic interpretation of the provisions of Article 191 of the Criminal Code of Ukraine, in particular, the concept of “abuse of office.” It should be noted that the pre-trial investigation and trial of this case lasted from June 23, 2016, to April 6, 2023, without considering the appeal and cassation review, which is still ahead.

3. The assessment of the reasonableness of the suspicion is a certain filter of unlawful criminal prosecution of a person.

The court assesses the reasonableness of the suspicion during the consideration of certain motions of the prosecution, for example, on the application of an interim measure or on the extension of the period of pre-trial investigation.

There is no unambiguous understanding of the concept of “reasonableness of suspicion.” This can be demonstrated, for example, by the decisions of the investigating judge of the HACC and the panel of the HACC Appeals Chamber in the case on suspicion of Andriy Kobolyev.

Analyzing the decision of the HACC in this case, I have already noted that when choosing an interim measure, the prosecution must provide evidence at least of the existence of the crime event, as well as that, based on his position, the suspect could have committed this crime; for example, to prove the use of the powers of Andriy Kobolyev contrary to the interests of his service, as well the fact of him having special powers.

It is clear that the process of pre-trial investigation is dynamic, and evidence can also be obtained after the notification of suspicion and choosing an interim measure. The pre-trial investigation body may also change the criminal legal qualification, and this affects the subject of proof. However, it is the assessment of the reasonableness of the suspicion that can exclude arbitrary criminal prosecution of a person.

Conclusions

Firstly, criminal law is an act that determines the most significant encroachments on public order. Attempts to overcome not the most serious social problems through their criminalization contradict the goals of the existence of criminal law and also devalue criminal law in the eyes of citizens.

Secondly, in criminal proceedings, the rights of a person who is brought to criminal liability are limited. Their property is seized, interim measures are taken against them, their reputation as a member of society suffers. If the person is later acquitted, this indicates that all these sufferings were in vain, and they have a legitimate right to compensation.

Thirdly, criminal justice is an expensive business. The assessment of the reasonableness of suspicion, which is not given so much attention at the stage of pre-trial investigation, can be a filter for cases that subsequently have no prospect at the stage of trial.

Therefore, any proposals to amend the criminal law must undergo a thorough professional evaluation and discussion. The practice of interpreting the provisions of the Criminal Code of Ukraine should be changed only in exceptional cases with proper argumentation. And the reasonableness of the criminal prosecution of a person should be checked even at the pre-trial investigation — to prevent arbitrariness of law enforcement agencies.

This publication was prepared with the financial support of the European Union. Its content is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of the European Union.