Saturday, April 14, 2012

Ukraine: Ukrainian Parliament Adopts EU-Style Criminal Procedure Code

SOURCE Ukraine Foreign Affairs

The Criminal Procedure Code (CPC), which was adopted by the Verkhovna Rada (Ukrainian Parliament) on Friday, opens a new chapter in the handling of criminal proceedings in Ukraine.

The new Code, which replaces the Soviet-era CPC (introduced in 1961), gives practical effect to the requests made by European bodies for improvements in the way criminal proceedings are handled in Ukraine. It is a further symbol of the democratic development of Ukraine, its respect for the rule of law and its adherence to European values, and was carried out with the particular support and encouragement of the Council of Europe Group of States against Corruption (GRECO) and the Parliamentary Assembly of the Council of Europe (PACE).

The new CPC was proposed to the Verkhovna Rada by the President of Ukraine and features many important new elements. Most notably, the new Code equalises the powers of the defence and prosecution, whereas the previous Code had granted too much power to State prosecution and law enforcement bodies.

The concepts of house arrest and electronic tagging for limited periods, as well as clear bail conditions, have been introduced by the new CPC. Jury trial is also introduced: two judges and three jury members (chosen automatically from a panel of seven people elected by local authorities) hear cases of those alleged to have committed a crime in their area.

In addition, the new Code creates an exhaustive list of crimes and details the bodies that will be responsible for investigation of these crimes. The powers of the National Security Service of Ukraine will be limited to the solution of crimes against the State, terrorism, espionage, illegal drug trafficking, crimes related to radioactive materials and weapons, and war crimes. The State Tax Service of Ukraine will be responsible for investigation of only six crimes, all of which can be punished only with a fine, and for which bail can be used only as a preventive measure. This reform has already been accepted and entered into force on 17 January 2012.

The Prosecutor's Office will no longer be responsible for the investigation of crimes. However, as a transitional measure (for five years), it will be entitled to investigate crimes allegedly committed by law enforcement officers, judges and senior civil servants. A State Anti-Corruption Bureau of Investigation will be created and will take on responsibility for investigation of these crimes, in line with the recommendation of European experts regarding limitation of the powers of the Prosecutor's Office.

Following a resolution adopted by PACE, new measures have been introduced regarding the investigation of crimes allegedly committed by high-ranking officials. Such cases will be heard in the court of the first instance by a panel of three judges, each of whom must have at least five years' experience as a judge and be permanently appointed to that role. Appeals will be heard by a panel of five judges, and cases in the court of cassation by a panel of seven judges, each of whom must have at least ten years' experience as a judge. By introducing these measures, the Verkhovna Rada has ensured that these sensitive cases are handled by judges whose professionalism and independence is beyond question.

 Ten key changes contained in the new CPC
    Old Code                     New Code
    The attorney for the         Attorneys have equal powers. A defence
    prosecution has more rights  attorney can:
    than the attorney for the
    defence                      - provide evidence;
                                 - bring witnesses to court;
                                 - independently involve experts in the
                                 - obtain a court order to access
                                   documents and to seize them;
                                 - participate in investigative actions
                                   and challenge the actions of the

    The Prosecutor's Office      The prosecutor will not deal with
    holds the power of           investigations. His role is to supervise,
    investigation                inspect and monitor the investigation
                                 process. The investigative powers of the
                                 Prosecutor's Office will remain only
                                 temporarily, for five years, for crimes
                                 allegedly committed by law enforcement
                                 officers, judges and senior civil
                                 servants. A new agency will be created to
                                 investigate these crimes.

    The report of a crime is     A criminal case is opened immediately
    only a preliminary step      after a crime is reported.
    towards the initiation of a
    criminal case; verification
    and an investigator's
    decision are needed before a 
    case is opened.              

    Bail and house arrest does   House arrest is now a measure of
    not exist                    restraint open to the court, allowing it
                                 to prohibit a suspect from leaving his
                                 house for all or part of the day for a
                                 period of up to two months. Electronic
                                 tagging is also permitted. Bail (of
                                 between 5,000 UAH and 300,000 UAH) for
                                 non-violent crimes is determined by the

    During the trial, the judge  No further investigations are permitted.
    has the right to return the  After the investigation is completed the
    case for additional          case is submitted to court, which may
    investigation                give a verdict of guilty or not guilty.

    Reconciliation agreement and A reconciliation agreement may be
    plea bargaining are not      concluded between the victim and the
    available                    suspect, if they agree on the punishment
                                 and the extent of damage caused. After
                                 the signature of a contract, the
                                 investigation or trial is terminated.
                                 There is no possibility of agreement in
                                 the case of serious crimes.
                                 Plea bargaining is now possible in
                                 agreement between the accused, the
                                 defense counsel and a prosecutor. In
                                 exchange for a defendant's plea of guilty
                                 to a less serious offence, the prosecutor
                                 will refrain from further investigation.
                                 The agreement cannot be concluded if
                                 there is a victim or if a serious crime
                                 was committed.

    The period of investigation  The period of investigation lasts between
    can last between two months  two and six months (or up to a year if
    and several years            the offence is very serious). If the case
                                 is not submitted to court within one year
                                 of the preliminary investigation, the
                                 suspect is regarded as innocent.

    The period of detention at   The period of detention at the
    the investigation stage can  investigation stage lasts between two and
    last between two and 18      six months (a year if the offence is very
    months                       serious). If the period of investigation
                                 has expired, the suspect is automatically
                                 released from custody.

    Testimony is given to the    Testimony is presented only in court, the
    investigator or the          exception being when the investigator
    prosecutor as part of a      wants to record testimonies before a
    non-public process           trial (in which case he will need to get
                                 special permission from the investigating
                                 judge, in whose presence these
                                 testimonies will be given).

    There is no jury trial       Jury trial is introduced. Two judges and
                                 three jury members jointly resolve issues
                                 of guilt, qualification and punishment. A
                                 jury is elected by local authorities.
                                 These are seven people; an automatic
                                 system selects three of them for a
                                 specific trial. The jury can judge only
                                 those alleged to have committed a crime
                                 in their area. Jury trial is an option
                                 only at the request of a person accused
                                 of committing a crime that would entail
                                 life imprisonment in case of conviction.