Despite overall positive responses from international experts, the new Criminal Procedure Code contains many pitfalls in terms of practical implementation in Ukraine
November 20, 2012, when the new Criminal Procedure Code (CPC) came into effect, was a turning point in the reform of Ukraine’s criminal justice system. Obviously, it is too early to draw any conclusions on how effective the new rules of criminal justice are after just three months, but the first results of the new CPC are already visible.
THE SECRET GOES PUBLIC
First of all, the new CPC launched the Single Register of Pre-Trial Investigations. As a result, reports of crimes are first registered in a journal, then recorded in the Single Register within 24 hours. Statistics do show some positive changes in the number of registered reports of crimes. According to some crime victims, the system works really well and the police do not refuse to register reports of crimes. Thus, this novelty seems to be a successful outcome of the reform.
37,318 reports of serious offences account for 1/6 of all crime reports compared to 30,346 in 2012. General Hennadiy Moskal, currently an MP with extensive experience in investigating criminal offences who disclosed these numbers, often said that the number of crimes would soar in 2013. This is logical, given an almost 7,000 increase in serious offence statistics. According to Moskal, this is because the police would not register minor criminal offences, such as stealing a bicycle, but always registered serious offences. In our opinion, however, the gap may have a purely technical explanation: the police may have entered offences left over from previous years into the Single Register, not just the ones committed since the beginning of 2013.
A FALSE START?
According to TheUkrainianWeek’s sources, the number of reported crimes did indeed rise as compared to the previous year in at least five oblasts. This may be yet another result of the criminal justice reform: in December 2012, the Prosecutor General’s press-service announced that it had released 6,000 detainees from pre-trial detention centres after the new CPC came into effect. The number of those newly placed in pre-trial detention centres dropped almost threefold. As a result, the State Penitentiary Service reported that 27,500 people were in detention centres as of March 1, 2013, 1,800 of them were there for pre-trial investigation. This is compared to 33,200 people in early July 2012. Presidential Advisor, Andriy Portnov, reported that 13,000 detainees were released from pre-trial detention centres over three months since the implementation of the new CPC. However, only an analysis of repetitive criminal offences committed by those newly released from detention centres can show whether the reported data signals positive or negative trends. So far, law enforcers have not disclosed whether or not the mass release of detainees has provoked a surge in criminal activity.
The government was also unprepared to implement some provisions of the Code related to house arrest as a preventive measure. It entailed electronic tagging, worn on the leg, to control people under house arrest. Despite the UAH 16bn budget of the Interior Ministry for 2013, no funding was planned for the bracelets even though it would have cost the Interior Ministry only UAH 0.13bn or less than 1% of its entire budget. Thus, the good old means of controlling detainees under house arrest by the police remains. According to Andriy Portnov, one of the authors of the new CPC, 500 people are currently under house arrest in Ukraine.
Authorizing law enforcers to retrieve information and carry out other secret actions – a novelty of the new CPC – is another controversial aspect. Among other things, the new CPC allows investigators to interfere with private communication through audio and video surveillance; seize, revise and remove correspondence; retrieve information from telecommunications networks and electronic information systems; and secretly penetrate places they had no access to earlier, such as the home. In other words, the new CPC allows bugging, entering and searching buildings and apartments without consent and the interception of letters. Investigators are normally only authorized to take such actions if a warrant has been issued by a competent judge. But as one judge told the author of this article, “Just try finding arguments to refuse issuing a warrant to an investigator, once criminal proceedings are initiated. They’ll blame you of covering up the criminal”. This is why, according to available information confirmed by the Prosecutor’s Office, and the Anti-Organized Crime Department, investigators have flocked for warrants regarding secret actions within the first months since the implementation of the new CPC. The Prosecutor’s Office refused to disclose the number of warrants for telephone tapping as inquired by one of the Ukrainian mass media, qualifying this as internal classified information.
After three months of the implementation of the new CPC, the obvious negative aspects include the provision that allows only certified lawyers to defend people in court. This hit human rights activists hard. In Ukraine, human rights organizations used to provide professional assistance to many defendants free of charge, and they have many good lawyers. Today, this channel of protection is blocked. Rumor has it that the increase in bribes to get a lawyer’s certificate is a fact.
ONPAPERAND IN PRACTICE
The government is promoting criminal justice reform as one of the major accomplishments in the portfolio of “reforms from Yanukovych”. Paradoxically, representatives of international organizations share this opinion. At a panel discussion arranged by Ukrayinsky Tyzhden/The Ukrainian Week at Ye Bookstore on March 12, 2013, all Council of Europe’s leading experts, including Georgia’s ex-Prosecutor Eric Svanidze; ex-Director of Public Prosecutions in Ireland, James Hamilton; Danish Helsinki Committee expert Mikael Lyngbo and others, gave flattering reviews of the new CPC. Meanwhile, the opposition criticizes both the government and the Council of Europe representatives who “legitimize” the punitive system in Ukraine. In this case, each party obviously has a point. European experts rightly note that the new CPC creates additional guarantees in protecting people’s rights and freedoms during pre-trial investigation and implements European-tested procedures in the local criminal proceedings.
But there is also logic in the opposition’s stance. Having changed procedures, the new CPC does not include any changes to the circle of entities that “bring” the charged person to court - instead their authorities are even greater now. As a result of the procedure for staff appointments, Prosecutor Office bodies are completely under President Yanukovych’s control. The investigating judge as the key figure of the criminal proceeding is under the supervision of the Presidential Administration as well. And a lot can be done in the criminal prosecution of the undesirable, with the aid of such instruments as phone tapping and entering and searching an apartment or building. In other words, the new CPC has the following consequences: to a certain extent, the average citizen has greater protection and the likelihood of his/her ending up behind bars before going to court has been minimized. But this is only as long as this average citizen does not cross the government.
On March 12, the Council of Europe launched Support to Criminal Justice Reform in Ukraine, a new project aimed at assisting Kyiv in the proper implementation of the Criminal Procedure Code (CPC) that came into effect in November 2012. Subsequently, the leading Council of Europe experts met at the Ye Bookstore in Kyiv to share their opinions on ways to reform criminal justice in Ukraine.
Jeremy McBride, Barrister, Monckton Chambers, London; Chairman of the Scientific Committee of the Fundamental Rights Agency of the European Union
On the problems of the new CPC implementation in Ukraine
This document is a very important step forward to creating the European standard-compliant framework for the system of criminal justice in Ukraine. Of course, it is not just about what is written in the CPC. There must be confidence that it will be implemented properly. There are some problematic issues that prevent proper implementation. Firstly, everyone should admit that the new CPC is a big step forward, yet the people responsible for its implementation may not realize this and rely on old methods, working intentionally or by inertia like they did before. Secondly, you need to have competent professionals who understand the Code and the nature of its implementation. Also, a question about distribution of powers among various components of the criminal justice system arises. Another important aspect is the role of the administration: high courts, prosecution and the Ministry of Interior should give specific instructions on how the CPC should be implemented in practice. The change of balance between various components of the criminal justice system should also be taken into account. Passing the new CPC is not the end of the process, - it’s just the beginning.
Mikael Lyngbo, Legal Expert for the Danish Helsinki Committee for Human Rights; former Chief of Police and prosecutor, Denmark
On the reform of Ukrainian prosecution
The reform of prosecution has been a commitment of Ukraine since 1995 when it joined the Council of Europe. A number of bodies send their drafts to the Venice Commission for comments - some of them not supported by the government. Therefore, we have a series of comments on the situation in Ukraine and the work of the prosecution – and they are quite uniform. All of them point at the fact that the prosecution in Ukraine still maintains all the functions of an old Soviet prokuratura (Prosecutor’s Office – Ed.) with a combination of a powerful task within the criminal justice system, and a number of equally powerful tasks outside of it. This model traces back to the system established by Peter the Great in Russia to keep an eye on his administration. In that system, there was no separation of powers; the concept had not been invented by then. The Communist Party took it over directly, as it also supported the system of one power rather than separated powers. By contrast, European models are based on a system where each organization controls and balances the other. None of them becomes too powerful or too big individually. In Ukraine, the prosecution body is one very strong organization as yet another incarnation of the prokuratura; it can use its role in the criminal justice system to support its function in the civilian area without proper judicial control. In order to obtain the point of balance between the different components of the legal system, the prosecution has to be less powerful than it has been until now.
James Hamilton, Substitute Member of the Venice Commission; former Director of Public Prosecutions in Ireland, President of the International Association of Prosecutors
On the status of judges and prosecutors in Ukraine
There should be clear laws to protect prosecutors and judges from political interference with their work. Under the Council of Europe’s Recommendation No2019, for instance, prosecutors should be entitled to reject any recommendations or instructions they qualify as illegal. Prosecutors should demand that such instructions are submitted in written form and, even if they are, they should have the right to reject them. Of course, this is difficult in a country that has not such tradition. But such preventive measures can exist to prevent unjustified dismissal from office, withdrawal of salaries or transfer to remote corners of the country where they are reluctant to serve. There should be fair procedures on disciplinary actions whereby people will supervise both the prosecutor and the judges from an unbiased perspective and proper salary that cannot be cut at someone’s will. All these things will not guarantee that that process is completely unbiased, but they will make work easier for judges and prosecutors in terms of taking decisions that someone in the government may dislike. These are things that should be done in Ukraine… Also, I believe that the prosecution (in Ukraine – Ed.) has too many powers, they should be limited.
Lorena Bachmaier Winter, Professor at Law School, Universidad Complutense, Madrid, Spain
On the jury
In my opinion, the jury should be used more widely, especially in young democracies. However, European standards do not require a country to have a certain model of justice. Every country is free to choose its own system and decided whether they want the jury or not, or whether they prefer a mixed system. The Council of Europe does not have a clear provision or convention recommending the jury as the only right way.