Рада з питань судової реформи

Chapter 10. Increasing Effectiveness of Justice Sector in Fight Against Organised Crime and Corruption

While sound and comprehensive policies for combatting corruption have already been designed by way of the recent Anti-Corruption Strategy, an additional emphasis has been made in the JSRS Action Plan to make a sensible contribution of the justice sector in the anti-corruption efforts. In particular, internal mechanisms will be developed for increasing accountability and dealing with corruption within the judiciary and prosecution, as part of the institutional development of these two key sector stakeholders. In addition, this separate Sub-Chapter will foresee concrete steps to be made by the prosecution, judiciary and other sector stakeholders in effectively detecting and preventing corruption. Attention will be paid to the development of institutional capacities of prosecutors to effectively lead investigations in corruption and organised crime cases. Furthermore, greater application of research, analysis and risk management to guide crime detection and prevention policies will be promoted, coupled with greater factual control of the executive investigation services by the prosecution and enhanced inter-agency cooperation in detection and prevention of crime at the domestic and international levels. Moreover, substantive and procedural legal framework will have to be improved to bring Ukraine closer to EU Acquis in criminal justice, most notably the legislation in the field of combatting organised crime. Common standards in substantive and procedural criminal law would also facilitate judicial cooperation in criminal matters, facilitating building of closer cooperation with Eurojust, other EU agencies and Member States.

Abbreviations list
ADR Alternative dispute resolution
AP Action Plan
APU/PAU Presidential Administration of Ukraine
ASSETBTC Bar Training Centre
CB Chamber of Bailiffs
CC Constitutional Court
ВНЗ Вищі навчальні заклади
CCBE Council of Bars and Law Societies of Europe
CCLAP Coordination Centre for Legal Aid Provision
CEIS Criminal Executive Inspection
CEPEJ European Commission for the Efficiency of Justice
CJ/CoJ Council of Judges of Ukraine
CJR/JRS Council for Justice Reform (or Justice Reform Council)
CoE CM CoE Committee of Ministers
CoE/CoE Council of Europe
CP Council of Prosecutors
CPE Performance Evaluation Framework
CSO Civil society organizations
DCMIS Detainee case management system
DFATD Department of Foreign Affairs, Trade and Development, Canada
DG Just Directorate-General for Justice and Consumers of the European Commision
DOJ United States Department of Justice
EaP The Eastern Partnership
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECtHR European Court of Human Rights
EPP Evaluation of Prosecutors’ Performance
EU MS EU Member State(s
EU European Union
EUAM European Union Advisory Mission for Civilian Security Sector Reform Ukraine
FLA Free Legal Aid
FoI Freedom of information
GDP Gross domestic product
GOU/GoU Government of Ukraine
HAC Higher Administrative Court
HCCH Hague Conference on private international law
HCJ High Council of Justice of Ukraine
HEI High educational institutions
PCF CoE/EU Eastern Partnership Programmatic Co-operation Framework
PDP Personal data protection
PEE Performance effectiveness evaluation
PEO Private enforcement officer
PFM Public financial management
PG Prosecutor General
PMF Performance Management Framework
PPO Public Prosecutor’s Office
PPP Public-private partnership
PR Public Relations
QALA Quality and Accessible Legal Aid Ukraine Project
RBC Regional Bar Council
RPO Regional Prosecutor’s Office
PQDCs Regional Qualification and Disciplinary Commission
SC Supreme Court
SDP Strategic development plans
SEP Sector expenditure plan
HELP European Programme on Human Rights Education for Legal Professionals
HQC High Qualification Commission
HQDC Higher Qualification and Disciplinary Commission
HR Human Resources
HRTF Human Rights Trust Fund
HSC Higher Specialised Court
IMF International Monetary Fund
IMS Information management system
IOP Interoperability
INL US Department of State Bureau for International Narcotics and Law Enforcement Affairs
IRZ German Foundation for International Legal Cooperation
IS Information system
ISD Internal Security Department
JC see CJ
JIT Joint investigative team
JSRS Justice Sector Reform Strategy
LPO Local Prosecutor’s Office
LPP Legal Professional Privilege
M&E Monitoring and evaluation
MIS Management information system
MOE Ministry of Education of Ukraine
MOF Ministry of Finance of Ukraine
MOH Ministry of Health of Ukraine
MoI/MoIA Ministry of Internal Affairs of Ukraine
MOJ/MoJ Ministry of Justice of Ukraine
MOR Ministry of Regional Development, Construction, and Communal Living of Ukraine
MOU Memorandum of Understanding
MSP Ministry of Social Policy of Ukraine
MTBF Medium-term budgetary framework
NACB National Anti-Corruption Bureau of Ukraine
NALS National Academy of Legal Science of Ukraine
NAPU National Academy of Prosecutors of Ukraine
NBC National Bar Council
NCP National Conference of Prosecutors
NPM National Preventive Mechanism
NSJ National School of Judges
OSCE Organization for Security and Co-operation in Europe
SGS Self-governance system
SGUA Support Group for Ukraine
SIT Special investigative techniques
SJA State Judicial Administration of Ukraine
SJGB Single Judiciary Governance Body
SLA Service-level agreements
SOP Standard operating procedures
SPS State Penitentiary Service of Ukraine
SSU Security Service of Ukraine
TC Training Centre
THB Trafficking in human beings
TOT Training of trainers
UNBA Ukrainian National Bar Association
USAID United States Agency for International Development
USAID FAIR The FAIR Justice Project of USAID
VET Vocational educational training
WG Working Group
Action Implementation Deadline Performance Criteria
End of 2016 End of 2018 End of 2020 Measures/Outputs Responsible Body / Means Outcomes
Area of Intervention 10.1 Increased Efficiency by Streamlined Competences in Criminal Investigation
10.1.1 Streamlining of duties and powers of each body involved in criminal investigation 1. Reviewed regulatory framework on bodies involved in criminal investigation PPO, MOJ, Parliament / Decisions, statutes and rules amended

- Practical and effective procedural and disciplinary oversight by PPO over police officers conducting criminal investigations

- Clear delineation of mandates of each investigative body dealing with various types of crime, including PPO, MOI, IRS, NACB and other relevant bodies

Area of Intervention 10.2 Enhanced Capacities in Fighting Organised Crime
10.2.1 Promoting greater specialisation, application of research, analysis and risk management to guide crime detection and prevention 1. Specialised units fully operational, tasked with fighting cybercrime, trafficking in human beings (THB), money laundering, illicit drugs and arms dealing, terrorism, other major organised crime categories PPO / Decisions, contracts, job descriptions, placement plans, trainings, SOPs, manuals, forensic and other technical equipment, hardware and software procured

- Specialised capacities of justice agencies to deal with organised crime

- Core EU legislation in fighting organised crime and implemented in Ukrainian law, including directives and framework decisions on confiscation, money laundering, THB, and cybercrime

- Research and analysis units at PPO producing risk assessment reports, defining risks and threats and providing guidance for activities of specialised units dealing with each major category of organised crime

- Risk assessment reports updated and exchanged regularly between authorised domestic and European and international counterparts, serving as feedback to constantly update SOPs

- Constant feedback and flow of information between research and analysis units and specialised units fighting organised crime

- Risk management serves as key guidance for intelligence operations and application of special investigative techniques (SITs)

- Specialised methodological and forensic capabilities for fighting each major category of organised crime, including cybercrime, THB, money laundering, illicit drugs and arms dealing, terrorism

2. Implementation of EU Acquis in fighting organised crime PPO, Parliament, MOJ / Decisions, statutes and rules amended, directives transposed
3. Standard operating procedures (SOPs) developed and reviewed regularly for each major organised crime category, including provisions for undercover operations, effective joint investigative teams (JITs), and procedures for resolving jurisdictional issues PPO / Decisions, reports,SOPs

4. Risk assessment reports developed and produced regularly, recommending improvements in fighting each major organised crime category. SOPs updated regularly by reference to risk assessment PPO / Publications, reports, SOPs
5. Practice guides and training modules on investigating each major organised crime category developed, disseminated online, and updated regularly NAPU, PPO / Decisions, trainings, publications
10.2.2 Enhancing domestic and international cooperation in criminal investigation 1. International cooperation networks involving Eurojust and other important European and international counterparts in place PPO / Decisions, MOUs, cooperation plans, review reports

- Cooperation and constant flow of data between national and international counterparts (Eurojust, EU MS investigative bodies etc.) regarding crime detection and prevention

- ‘Task force’ approach, joint investigative teams and other modalities of enhanced domestic and international inter-agency cooperation applied regularly

- Increased mutual recognition of forensic reports, expert opinions, administrative decisions, extradition requests, in context of international cooperation in criminal matters

2. Electronic communication channels between justice sector and other bodies, and international counterparts in fighting organised crime, in place and used effectively PPO, law enforcement agencies / Decisions, MOUs, hardware and software in place, trainings, manuals, review reports
10.2.3 Development of mechanisms and procedures to recover proceeds of crime 1. Reviewed regulatory framework on confiscation of proceeds of crime PPO, MOJ, Parliament / Decisions, statutes and rules amended

- Criminal law providing for confiscation, non-conviction based confiscation, third party confiscation, freezing of assets in line with new EU legislation etc.

- Formalisation of standards of proof with regard to different confiscation procedures, with particular emphasis on clear and foreseeable regulation of reverse onus

- Signature, ratification, and application of mutual legal assistance instruments and international communication channels involving Ukraine, EU, and other international counterparts, in order to implement confiscation, asset freeze, and other orders with regard to proceeds of crime

2. Asset recovery agency fully operational MOJ, Parliament, PPO / Decisions, statutes and rules amended
Area of Intervention 10.3 Increased Checks and Balances Provided by Justice Sector to Counteract Abuse in Criminal Investigations
10.3.1 Development of internal and external oversight mechanisms 1. Reviewed regulatory framework on case assignment and management PPO, MOJ, Parliament / Decisions, statutes and rules amended

- Clear, foreseeable, and applicable rules for case assignment and management systems at PPO and criminal investigation services, providing safeguards for functional independence of prosecutors and investigators

- Clear, foreseeable and applicable rules on use of weapons and SITs

- Mixture of consultative and coercive approaches in performance management systems

- Risk management effectively used as performance management tool

- Involvement of whole chain of command in internal control mechanisms

2. Reviewed regulatory framework on the use of lethal and non-lethal weapons PPO, MOJ, Parliament / Decisions, statutes and rules amended
3. Reviewed regulatory framework of oversight system of use of special investigative techniques (SITs) by PPO or courts, extending (not only) to authorisation but also conduct of intelligence and undercover operations PPO, MOJ, Parliament / Decisions, statutes and rules amended
4. Risk assessment reports produced regularly, recommending improvements in management at each branch of law enforcement system PPO / Decisions, reports
Area of Intervention 10.4 Increased Effectiveness in Combatting Corruption by Dedicated Capacities of Justice Sector
10.4.1 Development of capacities of prosecution and judiciary to deal with corruption cases, including ‘elite’ corruption 1. Specialised units at PPO for investigating corruption, especially ‘elite’ corruption, fully operational PPO, NABU / Decisions, contracts, job descriptions, placement plans, trainings, practice guides, manuals, forensic and other technical equipment, hardware and software procured

- Enhanced degree of protection from undue pressure in law and practice for prosecutors and judges dealing with corruption cases;

- Interoperable IS between PPO, judiciary and law enforcement bodies dealing with corruption cases

- Information on successful and unsuccessful prosecutions of corruption available online;

- Research and analysis units at PPO and courts regularly suggest improvements in regulatory framework and practice in order mend gaps established in analysing unsuccessful attempts to prosecute corruption in selected types of wrong-doings

2. Specialised sections of judges for dealing with corruption cases, especially ‘elite’ corruption, fully operational SJGB, NABU, CJ, SC, HCSs, Courts of Appeal, District Courts, SJA / Decisions, contracts, job descriptions, placement plans, trainings, practice guides, manuals
3. Reviewed regulatory framework on protection of prosecutors and judges from undue pressure when dealing with corruption cases PPO, CJ, NABU, MOJ, Parliament / Decisions, statutes and rules amended
4. Practice guides and training modules for prosecutor and judges dealing with corruption cases developed, disseminated and updated regularly PPO, NABU, Training Centres and Academies / Decisions, trainings, publications
5. Statistics on prosecutions and trails of corruption cases published and analysed in Annual Activity Reports of PPO and judiciary PPO, NABU / Reports

Impact Indicators for Chapters 8-11

  1. User satisfaction surveys (conducted as part of PPO performance management system, or by external observers) attest increased trust of society in PPO in particular, and/or criminal justice system in general (baseline: 2015; suggested 2016 target - increase by 5%; 2018 target - increase by 15%; 2020 target - increase by 25%).
  2. Criminal trial monitoring surveys conducted by external observers attest improvement of affairs in fairness of proceedings (baseline: 2015).
  3. 10 % annual decrease in number of structural violations found by ECHR with regard to criminal proceedings (baseline: relevant ECHR judgments pronounced in 2015; only pilot judgments or repetitive cases taken into account).
  4. 5 % annual decrease in number of cases at ECHR establishing divergences in practice of Ukrainian courts in applying national legislation, or establishing breaches of independence or impartiality of tribunal, or fairness of proceedings or defence rights, or ‘reasonable time’ requirement in criminal process (baseline: relevant ECHR judgments pronounced in 2015).
  5. Improved implementation of general measures in view of any ECHR judgment regarding Ukraine in criminal proceedings (baseline: number of pending cases before COE CM where general measures are indicated at end of 2015; suggested 2018 target - total decrease by 15%, decrease of enhanced supervision cases by 25%; 2020 target - total decrease by 25%, decrease of enhanced supervision cases by 35%).
  6. 20 % annual decrease in findings by COE CM on failure to enforce individual measures in any ECHR judgment regarding Ukraine in criminal proceedings (baseline: 2015).
  7. 5 % annual increase in use of home arrest, electronic surveillance and other forms of alternative bail as proportion of cases of detention on remand (baseline: same point in time one year ago for which annual statistics available).
  8. 5 % annual decrease in overall length of criminal proceedings (from moment of ’charge’ to ‘final decision’) (baseline: 2014; from average length previous year).
  9. 5 % annual decrease in overall length of criminal proceedings (from moment of ’charge’ to ‘final decision’) (baseline: 2014; from average length previous year).
  10. Pre-trial reports developed (baseline: proportion of relevant cases at material time; suggested 2016 target – 20% of cases, 2018 target – 30%; 2020 target – 40%).
  11. Work provided to at least 50 % of all prisoners (baseline: proportion at material time; targets to be split per type of penitentiary establishment and category/profile of prisoner (i.e. juveniles, women etc.).
  12. At least 20 % of offenders engaged in vocational-educational training (VET) or other education and rehabilitation programmes (baseline: proportion at material time; targets to be split per type of penitentiary establishment and category/profile of prisoner).
  13. 5% annual decrease in re-offending rates of offenders under probation (baseline: proportion at material time; targets to be split per type of penitentiary establishment and category/profile of offender (i.e. juveniles, women etc.).
  14. Ukraine’s standing in various relevant international indices relating to performance of criminal justice system improves, including Governance Indicators and Rule of Law Index (World Bank Institute), WEF Global Competitiveness Report, rankings by Freedom House, World Justice Project (Rule of Law Index), Transparency International (CPI etc.), Bertelsmann Stiftung Transformation Index (BTI), WB Doing Business Index (baseline: 2015).
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