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Pondering the minutia – Rule of law reform Ukraine

April 6, 2016

As a policy wonk that generally peers into matters no deeper than strategy, thus somewhat avoiding tactics and minutia,  picking just a few rule of law issues within the minutia of the Ukrainian press in 3 different regions from a single day’s reporting, a reader may ponder things like “guidelines“.

Judicial sentencing guidelines (and thus proportionality and consistency for like offences), crime recording guidelines et al.

The first example is the arrest of 5 men from Odessa that carried out a string of robberies on foreign citizens.  Naturally each of their offences will be recorded as robbery.  But will it also be recorded as a race crime?  Clearly in specifically targeting foreign Asian victims it is a prominent part of the modus operandi when carrying out their crimes of robbery it is a question to be asked.  Will any subsequent crime recording identify that?

The recording of offences committed by these offenders and thus subsequently detected will have a positive effect upon robbery statistics – and race crime statistics if the latter is also recorded, but that does not necessarily mean that a race crime will be recorded simply to detect it, despite the positive detection rate it would have on such a category of crimes.

Perhaps it is a matter of the robbery offence and undoubted prison sentences (of whatever period) that will follow are sufficient?  Will the perceived more serious crime of robbery being the only officially recorded statistic.  What are the guidelines for crime recording?  Are they national or regional?  Official or inferred?

With regard to pondering the proportionality of judicial sentencing, the case of a former police chief from Pervomaisk raises questions.  Clearly the fact he is now a former police chief indicates he has been sacked – but that has nothing to do with judicial sentencing or whether there are any sentencing guidelines for the judiciary.

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It seems unlikely that most readers would consider a UAH1,700 (about $67) fine proportionate as a judicial outcome for a (then) serving police chief who tipped off organised crime subject to drug trafficking operations/investigations.  (A reader may also ponder why he was charged with “leaking information” by the Prosecutor’s Office rather than either conspiracy to pervert the course of justice or perverting the course of justice at a very minimum.)  It seems, prima facie, far from a proportional sentence after deliberately and maliciously blowing colleagues drug trafficking operations against organised crime and instead going into bat for the other side.

There is then the internal workings of the judiciary themselves.

Are there any guidelines regarding at what point a judge should either be suspended or ejected from the judicial ranks by the disciplinary bodies? The case of Vladislav Oberemko raises such questions.  Should it take until 6th April 2016 for the High Council of Judges to recommend his removal from the judiciary for offences (videoed and subsequently shown in Ukrainian MSM and social media) committed in February 2015 (some of those offences of which have yet to come to trial)?

When it comes to the rule of law, there is an expectation not only of equity before it, but also proportionate and predictable outcomes – which is why many nations have guidelines for those involved to take into account when carrying out their roles within the system.  Such guidelines also serve to highlight those outcomes that may (legitimately) fall outside the normative, thus drawing automatic attention (and perhaps review) when they do.

Do Ukrainian guidelines exist within the relevant rule of law institutions (if so they are seemingly ignored)?

There seems to be no predictability nor proportionality that sits comfortably with a “reasonable person“.

Both predictability and proportionality will be (at least subconsciously) measurements when it comes to the rule of law reform across Ukraine for its constituency.  Indeed, despite the painfully slow reformation of the entire system of rule of law in Ukraine, institutional guidelines to produce some form of predictable and proportionate outcomes before the citizenry do not need to wait for glacial structural change.

Perhaps standardising the outcomes of the minutia via institutional guidelines should be seen as more of a priority tool when it comes to changing public perception in the immediate term?  Perhaps predictability and proportionality in sentencing should also become a specific benchmark against which judges are assessed henceforth?

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