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3 May, 2012  ▪  Andriy Skumin

Criminal-Political Code

Passed hastily at night, the new Code of Criminal Procedure was supposed to be a demonstrative adaptation to international standards that will conceal broader opportunities for those in power to continue political repression in the Ukrainian reality

Parliament passed the new Code of Criminal Procedure at night on Friday 13th, replacing the old one passed in 1960 and amended many times since. The new document is more to do with politics than legislation. It is designed to take into account as many interests of those currently in power as possible. If necessary, it may turn into an effective instrument for the criminal persecution of opponents, at the same time saving a criminal from the team in power from the inconvenience of being held at pre-trial detention centers. In addition, the Code betrays the intent to please Europe. No wonder parliament rushed to pass it before Easter, which was on 16 April – and before the European Court for Human Rights started the hearing of the Lutsenko versus Ukraine case on 17 April.

SHOWING OFF BEFORE EUROPE

Obviously, Mr. Yanukovych’s team saw the new Code as an image-boosting project aimed at showing Europe that official Kyiv was prepared to give up soviet traditions for Western legal standards. The fact that PACE Monitoring Committee Co-Rapporteurs have already congratulated Viktor Yanukovych on the passing of the new Code of Criminal Procedure only proves this.

Many novelties in the Code really are a step forward from its 1960 predecessor.

Most importantly, this refers to the pre-trial investigation procedure. At present, the simplified algorithm for initiating a procedure based on a relevant application is comprised of three stages. First, a private individual or a legal entity files an application with an enforcement agency, the Prosecutor’s Office or the like. Second, the facts listed in the application are verified. Third, a criminal case is opened or dismissed. Of course, there can be quite a few challenges, even at this stage. To report fewer cold cases, law enforcers often refuse to open criminal cases. In 2010, only 800,000 of 3.1mn applications and notifications filed with Interior Ministry bodies, were considered to have sufficient grounds for initiating a criminal case. Meanwhile, statistics do not take into account cases where authorities have reject applications from victims.

The new Code changes the criminal case system dramatically. Pre-trial investigation begins as soon as an entry of a criminal offense is made in the Uniform Record of Pre-Trial Investigations and ends when the proceedings are closed or an indictment is filed in court. Hence, no checks are necessary prior to making an entry in the Record and no decisions on opening a case are made.

Such legislation can have different interpretations in Ukraine, though. The thing is that Ukraine has an established market of illegitimate “services”, whereby initiating a criminal case against a business rival, thus giving him a hard time, costs USD 200-500 – a bribe to an investigator of the local police office. Appealing against a decision to initiate a criminal case used to be a protectionist tool, while the new Code offers no way of challenging the legitimacy of a pre-trial investigation. Moreover, a procedure for compiling the Uniform Register has not been drawn up alongside the new Code. This is the responsibility of the Prosecutor General.  

In addition, the new Code softens requirements for the investigation procedure in favour of the suspects. The option of returning a case for additional investigation has been removed while the deadline for investigative action has been reduced to 6-12 months. House arrest has been introduced for those suspected of crimes punishable by imprisonment. People suspected of lighter crimes can be released on bail. Clearly, this will decrease the burden on pre-trial detention centers by 15-20%.

STICKS AND CARROTS

However, tougher requirements for attorneys hardly fit both international standards and the constitutional field of Ukraine. The opposition, represented by Batkivshchyna, has already announced that this is a blow to Yulia Tymoshenko’s defense. It is more like evidence that attorneys’ associations have carried out a well-designed campaign during the drafting of the Code.

The confrontation between official “attorneys” and simply “lawyers” has a long history in Ukraine. Under the 1960 Code of Criminal Procedure, which is still in effect, lawyers with no attorney license can represent defendants in court alongside attorneys. The Code passed on 13 April changes everything: only those registered in the Uniform Record of Attorneys will be entitled to do this. This may result in a reformatted market of legal services all over Ukraine and ease the influence of the government on the “right” attorneys of “wrong” defendants, as was the case in the USSR. However, this so-called “improved professionalism” of defense is unlikely to cause any objections from international organizations.

Art. 97, entitled “Hearsay Evidence”, is one of the most significant articles in the new Code. It allows the court to consider hearsay as acceptable evidence regardless of whether there is any opportunity to interrogate the person who initially gave the evidence, in exceptional cases, provided that such evidence is acceptable proof under other rules of the acceptability of the latter. The Code qualifies “an oral, written or any other statement on a certain fact based on the explanation of another person” as evidence. The problem is that any rumour someone hears in a trolleybus or by their porch can easily qualify as “hearsay evidence.”

According to experts of the Main Scientific-Expert Department of the Verkhovna Rada, “…the application of rumours that can qualify as hearsay evidence by nature is unacceptable in investigating crimes because charges should be based on evidence, the authenticity of which can be verified.” The same experts have noted another aspect of Art. 97: the provision “can be a significant obstacle to finding out the truth in a case, since an individual who gives hearsay evidence cannot be held liable for their falsity.”

The fact that the legalization of rumours in the judiciary could be seen as the legislature’s special case of incompetence if the provision had not been drafted this way on purpose. The process of debating it in parliament showed how firmly and deliberately the Party of Regions insisted on it, while ignoring recommendations to soften this provision and completely rejecting the division of evidence into basic and additional. This arouses suspicion that the new Code of Criminal Procedure is intended for use as an instrument of persecution of those who are inconvenient for the party in power, based on rumour alone.

It is too early to talk about how effective the mechanism launched by the new Code will be. Even if one assumes that the new document has more plusses than minuses, it will not lead to a revolution in the operation of the law enforcement system and the courts. The Code is new whereas the old police, prosecutors and judges remain. It changes the process to some extent but will in no way change the professional background of investigators and judges, and most importantly, will not eliminate the corrupt links they have established. 

Daniel Höltgen, Council of Europe Speaker

The passing of the new Code of Criminal Procedure is amove in thegood direction. Yet, the international communityexpects Ukraine to improve its judiciary practices, notonly the law. Verdicts by Ukrainian courts sometimes seemto be politically motivated.

Yuriy Prokopchuk, MP (BYuT)

They can let someone out on bail ranging from UAH 17,000 to 300,000. Essentially, we’ve passed a code for wealthy people because they are the only ones who can buy themselves out of jail. Some articles will be removed from the Code of Ukraine on Administrative Offenses If they pay well, their actions will qualify as administrative offenses and if they don’t – as criminal offenses.

Yuriy Vasylenko, attorney, former judge of the Court of Appeal

Data collected by attorneys is transferred to investigators who attach it to a case… however in reality, investigators in both the USSR and the independent Ukraine have always worked in the interests of the prosecution .

Volodymyr Chemerys, Board Member of the Ukrainian Helsinki Group

90% of the population who can’t afford an attorney will have no defense. The Code expands opportunities for people who have enough cash to be released on bail, among other things, and average people can’t do that. This signals that the legal system, not just economy, has been transforming in the interests of big business over the past 20 years.

Dmytro Hroisman, Vinnytsia Human Rights Group Coordinator

Prosecutors preserve and even expand functions that are not typical for them. The Constitution says nothing about a prosecutor running an investigation as will be the case under the new Code. Prosecutors just can’t stand over investigators!... The legislator has also degraded such wonderful concept as the jury. The way the Code defines it has nothing to do with a real jury. It looks more like the assessors of soviet people. A positive change is that sending a case for additional investigation is next to impossible now. When a judge sees that the prosecution or investigators have failed to prove something or didn’t do a good job, he will have to acquit the suspect… In addition, a confession or a surrender will no longer qualify as proof, which makes it unnecessary to beat up suspects to force confessions out of them.

Idan Aliev, attorney

Allowing judges to disregard evidence collected out of court is a definite plus of the new Code. This will partly solve the problem of law enforcers mistreating suspects. Other amendments are mostly nonsense and part of the government’s election public relations.

Leonid Tarasenko, Chairman of the Public Attorney Center

The defense has few powers to collect evidence today. The new Code is designed to give attorneys and defendants more options to collect and file evidence.


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