Justice system gets a Euro remont

Business Ukraine, November 2012
Serhiy Verlanov, manager with the tax and legal department
Alexander Protsyuk, attorney with the tax and legal department

The New Criminal Procedural Code of Ukraine: towards a more civil approach?

Starting on 20 November, the new Criminal Procedural Code of Ukraine (the Code) came into force. According to the authors of the Code, its aim is to implement European values and principles into the criminal justice system, with human rights as a corner stone. Of course, compared to the ‘Soviet’ Code, the new Code provides a significant number of changes which should transform the criminal investigation system. But will it bring European values and principles?

One of the most important changes is related to the initiation of the criminal case, which will no longer exist. In its place the Code introduces the initiation of criminal proceedings.

Under the previous law, an investigator who received information about a crime had up to 10 days to collect evidence and decide whether or not to initiate a criminal case. Additionally, the person accused of committing a crime had the right to challenge the resolution on the initiation of a criminal case, which used to be the first step in defending their innocence.

According to the Code, an investigator is obliged to insert information about the crime into the Unified Register of Pre-trial Investigations (the Register) within 24 hours after receiving such information. This is the moment when the criminal proceeding starts, i.e. the investigator has the right to conduct all investigative actions (including questioning, searches, and involving external expertise). For example, for tax evasion cases this means that criminal proceedings start automatically when a tax audit act with a notification-decision is passed to the tax police. The new Code does not provide the right to challenge an entry into the Register. Therefore, there is no possibility to immediately stop the proceedings as was previously the case.

Criminal proceedings are, though, limited in time. When there is sufficient evidence indicating that a certain person committed a crime, an investigator sends a notification of suspicion to such person. From the moment when the notification is delivered to the person, the investigator has limited time to finalise the investigation (generally two months, which may be extended up to 12 months).

Additionally, under the Code the investigator is not obliged to inform a person on the opening of a criminal proceeding, and it is also unclear how information from the Register will be provided. Hence, a person may learn that there is a criminal proceeding against them only when a notification on suspicion is received.

Another major change in the criminal proceedings is that functions regarding control over investigations have been transferred from the prosecutor’s office to the court of general jurisdiction, particularly to specially appointed investigative judges which have already been appointed in all courts. The responsibilities of those judges include control the legality of criminal proceedings, resolving claims, choosing preventive measures, etc.

The Code establishes an exhaustive list of preventive measures: personal obligation, personal bail, deposit, domestic arrest and detention (from minor to gross). It is the investigative judge who decides on the particular preventive measure. Meanwhile, the investigator or prosecutor applying for a certain preventive measure should prove that each lesser measure will not be effective.

One of the positive changes is that the amount of any required deposit is now limited (e.g. regarding tax evasion in a gross amount it will be from UAH 22,360.00 to UAH 89,440.00) and only the court may impose a surety of more than is stipulated in the Code and only in exceptional cases. In comparison, the old law provided that the amount of deposit could not be less than the damage caused by the crime.

The Code also includes other important changes such as:

  • only an attorney-at-law registered in the Unified Register of Attorneys of Ukraine may act as a defender of a suspect in criminal proceedings;
  • the defense has the right to file a motion to the investigator to conduct investigative actions, and in case of unreasonable rejection, to challenge such rejection to the investigative judge;
  • the Code provides the parties to criminal proceedings with the right to record investigative actions by any technical equipment (e.g. photo and video cameras, mobile phones, etc.);
  • a court should adopt either a guilty or non-guilty verdict in the case, and it is not able to send the case for additional investigation.

So, does the new Code move Ukrainian criminal proceedings towards a more civil approach? On one hand, the new Code takes a step towards providing the defendant with certain additional rights, limiting the amount of deposits and placing better control on investigators through the investigative judge. On the other hand, it allows investigators to carry out investigations, including on an undisclosed basis, for an almost unlimited time. Ultimately, only the practical implementation of the Code will show the direction of the country’s transformation.