Criminal Process
in Ukraine

The judicial reform in Ukraine, the establishment of a new judicial system, and the introduction of a new Supreme Court have all resulted in the necessity to introduce innovations to the procedural legislation. A number of acts have changed important provisions in the sphere of criminal proceedings, in particular at the stage of pre-trial investigation.

On the foreground are radical, from the point of view of the legislators, changes to the Code of Criminal Procedure, which were introduced primarily by the Law of Ukraine No. 2147a-VIII of 3 October 2017. The Law corrects all forms of the Ukrainian judicial process simultaneously. So, let us focus on it.

Within the framework of that Law, considerable speculation and publicity were triggered by certain provisions of the so-called scandalous amendment No.109 proposed by Andriy Lozoviy, a member of the Radical Party, which was, with some irresolution though, adopted by the Ukrainian Parliament. The reasons for that amendment have not been well understood by legal experts: some argue that they lie in the establishment of corruption schemes and an attempt to cover up complex crimes, others see the reasons in an attempt to strengthen the guarantees of the rights of the defense in the criminal process.

The first and the most scandalous part of Lozoviy’s amendment was the reduction of the pre-trial investigation period. MPs could not immediately and unequivocally answer the question as to how much the period had to be reduced. The original bill provided for de facto twofold reduction. After the adoption of the Law with all its revisions, the period of pre-trial investigation is divided into two parts and runs from the moment the information about a criminal offense was entered into the URPTI up to the moment the person is notified of suspicion, which is six or twelve months for misdemeanors or minor/moderate crimes respectively and eighteen months for serious/extremely serious crimes. The second part of the period begins at the moment of notification of suspicion and is one month for misdemeanors and two months for crimes, where after the pre-trial investigation, provided that no indictment has been issued, must be closed. However, it is still possible to extend the term up to 12 months after the person was informed of the suspicion if the pre-trial investigation cannot be completed due to its complexity.

The positive thing about this innovation is that it prevents abuses on the part of law enforcement agencies. Thus, the latter, given sufficient evidence for suspicion, often deliberately procrastinate in informing the person of suspicion, which violates the person’s right to due process. The new procedure for calculating the time limits somewhat reduces the possibility of such abuses, also bringing the procedure of pre-trial investigation closer to the European standards, in particular, to the principle that the time limits for establishing the guilt of a person must be as close as possible to the time of the criminal offense committed. On the negative side, the effective investigation of corruption crimes is first and foremost at risk. Due to the complexity of the crimes, the 12-month period is obviously insufficient. Therefore, the effective work of NABU and of the Specialized Anti-Corruption Prosecutor’s Office is under question. There is also potential abuse of law by enforcement agencies: searches, interrogations and other investigative actions prior to notice of suspicion. Without having the status of a suspect, the person cannot even appeal against such actions to the investigating judge. Regarding repeated applications for closure of proceedings whose terms of pre-trial investigation expire, and “Maidan Cases”, MPs clearly stated in that same Law that “the changes do not have retroactive effect and apply to those cases where information about a criminal offense was entered into the Uniform Register of Pre-trial Investigations after the introduction of the changes”. The “reduction” of the terms is also somewhat negated by the possibility to extend them, since the number of such extensions is not limited. Therefore, it is only an illusion of a short-term pre-trial investigation.

Another part of the scandalous amendment is the introduction of the exclusive right of the court to appoint experts. While formerly a party could itself arrange for an expert examination and submit its findings to the court, now this power is only vested in the court to which the party applies for its appointment.  The monopoly of the state expert institutions also added to the reputation of the amendment. The innovation is also questionable in terms of fiscal policy. At first glance, this, of course, will increase the workload on investigative judges, who, in addition to other responsibilities, will be forced to consider motions for expert examination. Another negative aspect is a significant procrastination in the conduct of expert examination, which, in view of the new pre-trial investigation terms, does not contribute to the effective bringing of a case with an indictment to a court of law. The lack of authority of judges to demand production of additional documents for expert examination is also a significant disadvantage, as is the lack of authority of experts to get such materials directly from the parties.

Moreover, the requirements as to the content of the motion for expert examination must also be reviewed. Since no party is obliged to indicate additional information about examinations that have already been carried out or where there are answers to some questions; the fact of application/extension of interim measures is not indicated, as well as detailed objects of research by experts. All this leaves the investigating judge without sufficient information necessary to determine whether the expert examination is really expedient, or is just a tool to drag out the case. As to the list of questions to the expert in the motion — the expediency of a question can be determined only if the judge is aware of the peculiarities of conducting one or another type of examination. Otherwise, the expediency of the questions remains controversial. The only positive thing is a kind of “filtering” by the investigating judge of a clearly inexpedient examination or examinations for which there are no de facto grounds, which somewhat simplifies the assessment of evidence by the court.

The last part of the radical amendment proposed by Lozoviy was an attempt to introduce the right to appeal against any notice of suspicion to the investigating judge. However, that norm did not get into the Law adopted by Parliament due to, in the opinion of experts, the absurdity of the novelty. In addition to the corruption risks on the part of judges and the additional burden on them due to the avalanche of motions, a logical question arises: why is it necessary to contest what has already been checked by the court when, for example, an interim measure was decided on? At the same time, the gap remained in what the bodies of pre-trial investi­gation must do if the notice is still cancelled — close the proceedings or continue them … Instead, the list of grounds in Article 303 of the CPC for appealing against the decisions of the investigator or the prosecutor was only supplemented by the right to appeal against the unclosed proceedings in connection with the expiration of the term of the pre-trial investigation after the person is given a notice of suspicion — one or two months depending on the severity of the criminal act.

Another important novelty of the criminal process was Law No. 2548 of 18 September  2018, better known as the Law of “Mask Show STOP 2”, which amended articles 284 and 303 of the CPC of Ukraine, which are related to the closure of criminal proceedings and appeals against actions of the investigator or the prosecutor. Thus, if there is an uncancelled resolution of the investigator to close criminal proceedings on grounds such as the absence of an event or of a criminal offense, this is the reason for the closure of the criminal proceedings and, accordingly, for appeals against the decision of the investigator or the prosecutor who denied the motion. The novelty is truly progressive, as it enables prevention of a repeated pre-trial investigation of a fact that has already been considered and with respect to which there are certain grounds for closure of the proceedings, that is, identical criminal proceedings. Previously, this method was often used by law-enforcement officers in relation to businessmen in order to exert pressure on their activities. Another issue is how to establish the “identity” of circumstances or the fact that the time period during which the investigator or the prosecutor must cancel the resolution is not detailed, which would provide the parties with an additional guarantee to challenge the missed deadlines. The code also does not establish grounds to deny motions. There are also controversial situations when the prosecutor believes that the uncancelled resolution is illegal and proposes this as the ground for denial of a motion. All of this is an obstacle to the full implementation of the new provisions.

Consequently, the reform of the criminal process within the framework of judicial reform brings to the modern realities of criminal proceedings important changes aimed at guaranteeing the right of the party of the defense. Strengthe­ning the right of presence of an attorney during the pre-trial investigation and fixation of the pre-trial investigation by technical means, restriction of searches, strengthening of the right of participants in the process to appeal against decisions and receipt of compensation, reduction of the terms of pre-trial investigation — all these are promising measures that, with further detailing of the regulations, proper material support and honest performance, will make it possible to effectively ensure the fulfillment of the tasks of pre-trial investigation and the implementation of the principle of the Rule of Law in general.