On November 20, the new Criminal Procedure Code came into force in Ukraine. These regulations will now define the fate of a suspect from the moment of his detention to the announcement of a sentence in court. Moreover, the Code stipulates new rights and obligations of investigators, prosecutors, lawyers and judges. New Code is a significant document, as courts of our country consider about 250 thousand criminal cases annually.
Shorter and faster
So, the investigation process of criminal cases will become shorter. The new Code does not provide for usual notion "institution of a criminal case". According to the new document, the investigation will start immediately, passing by formal stages. Let's simulate a hypothetic situation.
In the August article "Catch me if you can or peculiarities of shopping in the capital" our correspondent wrote about having her purse and phone stolen in one of Kyiv trade centers and about her ordeals after reporting the crime. The same day she wrote the application, but the criminal case was not instituted at once, but after some time. Police did not violate the law, as according to the old Criminal Procedure Code, investigators and prosecutors could study the case for 3-10 days and only then start investigation or deny the institution.
From now on, investigators do not have to do the paper work, but to enter the received information on a crime directly in the Single registry of pre-trial investigations. As soon as the data is introduced, the investigation on the case starts. Interior Ministry press office told ForUm that the Single registry was created several months ago. Its maintenance support, administering and monitoring is now the task of regional prosecutor's offices.
Moreover, pre-trial investigation will be limited in time. The old Code did not set time limits for investigation and detectives could investigate grave crimes ever so long. The new document sets the maximum term of investigation - 12 months. In case investigators detain a suspect, they can keep him in a pre-trial detention center until a measure of restraint is defined, which must happen within 60 hours (72 hours by the old Code).
Funny bracelets
Further fate of the detained suspect (to stay in a detention facility or go home) will be determined not by court, as it used to be, but by a special authorized investigating magistrate. This is a new figure in the criminal process. If a person is the suspect of a serious crime or resisted arrest, most probably, he will be placed in a detention facility. However, the maximum term of keeping the suspect in the pre-trial center is one year (18 months by the old Code).
At the same time, authors of the new Criminal Procedure Code say that the majority of suspects will not face detention facility. For the pre-trial investigation period, they will stay free under personal recognisance, bail or house arrest.
In case of house arrest, a suspect will wear special electronic bracelet on a leg for law enforcements to know his location.
"Such measure of restraint has its advantages. First of all, the suspect can have better nutrition and ret at home. Secondly, he can keep following his routine. Thirdly, don't forget that only court can decide whether the suspect is guilty. If the suspect is innocent, he does not need "to take course in prison universities". And finally, the state will save a great sum of money. According to the data of State penitentiary Service, the detention of suspects cost the state budget about UAH 85 million, and transportation to courts and back cost about UAH 20 million," lawyer Oksana Makeyenko told.
Interior Ministry press office also told ForUm that this year pre-trial detention facilities have discharged almost two thousand people. Now there are 35 thousand suspects being kept in detention facilities against 37 thousand in 2011 and 40 thousand in 2010. The authors of the new Code promise that the number of detainees will keep decreasing. However, it is still unknown when the detention in facilities will be replaced with house arrest. According to the head of Main investigative department of Interior Ministry of Ukraine Vasyl Farynnyk, tenders for purchase of 'bracelets' have not been announced yet. Thus, until the magic devices are available, police officers will have to check upon arrestees personally.
Between right and wrong
The new Criminal Procedure Code has a number of controversial innovations, criticized by some and welcomed by others. According to the new Code, for example, wiretapping and spying can be authorized by the special authorized investigating magistrate only. From now on the magistrate will decide on all issues regarding human rights, including summoning of witnesses and suspects, compulsory convoy to investigative agencies, etc.
In this respect, senior research scientist of Volodymyr Koretski Law and State Institute Mykola Siryi reminds that six thousand judges working in Ukraine were investigators and prosecutors once, thus are used to perform as accusers. But the expert of the Center of political and legal reforms Oleksandr Banchuk is convinced that new Code will oblige investigating magistrate to be more attentive to possible violations. "For example, it won't be possible to split a cause, to summon tens of witnesses irrelevant to the case," he noted.
Meanwhile, Ukrainian businessmen are happy with the fact that arrest of property can be carried out only by the order of investigating magistrate and only in case if investigators and prosecutors can prove that this very property was used or can be used for committing a crime. Such regulation provides better safety for Ukrainian entrepreneurs, and law enforcements will not be able to seal business just because.
Another controversial norm concerns lawyers. According to the new Code, only lawyers registered in the Single registry of lawyers and legal practices can advocate suspects in court. Relatives and law specialists cannot be defense attorneys. On one hand, critics say this norm limits human rights. On the other hand, specialists note that this norm is necessary to prevent frauds. There were cases when dishonest students of law faculties wanted to earn extra money and offered poor assistance or when businessmen established fly-by-night companies with lawyers just out of school working there. Formally they did not violate the law, thus it was impossible to bring them to responsibility.
Moreover, changes concern not only lawyers, but also prosecutors. From now on prosecutors are charged with determining the course of investigation and investigator's actions, as it is a prosecutor, not investigator, to present the case in court and answer for legitimacy of collected evidences. Some Ukrainian politicians complain that such norm will give prosecutors superpowers. But Prosecutor General of Ukraine Viktor Pshonka believes that the given norm will make his subordinates more responsible.
The new Criminal Procedure Code also cancels acknowledgement of guilt, meaning there will be no point to "hammer out" testimonies. However, the press office of the Interior Ministry explained that sincere acknowledgement would remain. If certain Mr. Petrenko wants to confess a crime, investigators will register it in the Single registry of investigations. It will be forbidden to seek testimony of a person, who was not read his right to remain silent. Investigators cannot torture, threaten or humiliate a suspect. However, investigators could not do this even under the old Code.
Having talked to lawyers, legal experts and attorneys we have a clear impression that many of them still do not fully understand how they are supposed to work. Moreover, for the majority it is more convenient to see only negative points. The situation was very well described by the president of Human Rights League Ihor Godetski, who said: There are pessimists and optimists among lawyers. I believe I am a realist and I see both positive and negative consequences of the new criminal Procedure Code. The Code arises many questions, but still it is good that there is a development."
We cannot live like that
Adoption of the new Code was inevitable. The fact is that the old regulations have been in operation since 1960 and the parliament has introduced already 159 amendments for the years of independence. Finally, the Council of Europe representative Drago Kos declared that the Code could not be revived, and it would be easier to adopt a new one.
The old Code had Soviet punitive approach. According to it, the courts had a mission to root out criminality. Nikita Khrushchev, initiator of the Code in 60s, even promised Soviet people to show the last criminal on TV.
Today the Code of 1960 is considered out of date and drastic, but under Khrushchev its regulations were almost revolutionary. Take into account that under Stalin regime the Code did not limit the discretion of prosecutors and provided for such post as "super prosecutor", who was in charge of all investigative institutions. Detectives did not investigate, but played the role of "local agents". There was no pre-trial investigation in Soviet Union, meaning nothing could stop law enforcement officials to shoot you right after the institution of a criminal case. The Code followed the principle of comrade Stalin "It's better to let 10 innocent men be punished than let one guilty go free."
The new Criminal Procedure Code is not a revelation, of course, but the majority of specialists agree that its positive or negative consequences can be estimated only after some years of operation, when law enforcements and lawyers will get used to its conditions and requirements.
Alina Yeremeyeva
Shorter and faster
So, the investigation process of criminal cases will become shorter. The new Code does not provide for usual notion "institution of a criminal case". According to the new document, the investigation will start immediately, passing by formal stages. Let's simulate a hypothetic situation.
In the August article "Catch me if you can or peculiarities of shopping in the capital" our correspondent wrote about having her purse and phone stolen in one of Kyiv trade centers and about her ordeals after reporting the crime. The same day she wrote the application, but the criminal case was not instituted at once, but after some time. Police did not violate the law, as according to the old Criminal Procedure Code, investigators and prosecutors could study the case for 3-10 days and only then start investigation or deny the institution.
From now on, investigators do not have to do the paper work, but to enter the received information on a crime directly in the Single registry of pre-trial investigations. As soon as the data is introduced, the investigation on the case starts. Interior Ministry press office told ForUm that the Single registry was created several months ago. Its maintenance support, administering and monitoring is now the task of regional prosecutor's offices.
Moreover, pre-trial investigation will be limited in time. The old Code did not set time limits for investigation and detectives could investigate grave crimes ever so long. The new document sets the maximum term of investigation - 12 months. In case investigators detain a suspect, they can keep him in a pre-trial detention center until a measure of restraint is defined, which must happen within 60 hours (72 hours by the old Code).
Funny bracelets
Further fate of the detained suspect (to stay in a detention facility or go home) will be determined not by court, as it used to be, but by a special authorized investigating magistrate. This is a new figure in the criminal process. If a person is the suspect of a serious crime or resisted arrest, most probably, he will be placed in a detention facility. However, the maximum term of keeping the suspect in the pre-trial center is one year (18 months by the old Code).
At the same time, authors of the new Criminal Procedure Code say that the majority of suspects will not face detention facility. For the pre-trial investigation period, they will stay free under personal recognisance, bail or house arrest.
In case of house arrest, a suspect will wear special electronic bracelet on a leg for law enforcements to know his location.
"Such measure of restraint has its advantages. First of all, the suspect can have better nutrition and ret at home. Secondly, he can keep following his routine. Thirdly, don't forget that only court can decide whether the suspect is guilty. If the suspect is innocent, he does not need "to take course in prison universities". And finally, the state will save a great sum of money. According to the data of State penitentiary Service, the detention of suspects cost the state budget about UAH 85 million, and transportation to courts and back cost about UAH 20 million," lawyer Oksana Makeyenko told.
Interior Ministry press office also told ForUm that this year pre-trial detention facilities have discharged almost two thousand people. Now there are 35 thousand suspects being kept in detention facilities against 37 thousand in 2011 and 40 thousand in 2010. The authors of the new Code promise that the number of detainees will keep decreasing. However, it is still unknown when the detention in facilities will be replaced with house arrest. According to the head of Main investigative department of Interior Ministry of Ukraine Vasyl Farynnyk, tenders for purchase of 'bracelets' have not been announced yet. Thus, until the magic devices are available, police officers will have to check upon arrestees personally.
Between right and wrong
The new Criminal Procedure Code has a number of controversial innovations, criticized by some and welcomed by others. According to the new Code, for example, wiretapping and spying can be authorized by the special authorized investigating magistrate only. From now on the magistrate will decide on all issues regarding human rights, including summoning of witnesses and suspects, compulsory convoy to investigative agencies, etc.
In this respect, senior research scientist of Volodymyr Koretski Law and State Institute Mykola Siryi reminds that six thousand judges working in Ukraine were investigators and prosecutors once, thus are used to perform as accusers. But the expert of the Center of political and legal reforms Oleksandr Banchuk is convinced that new Code will oblige investigating magistrate to be more attentive to possible violations. "For example, it won't be possible to split a cause, to summon tens of witnesses irrelevant to the case," he noted.
Meanwhile, Ukrainian businessmen are happy with the fact that arrest of property can be carried out only by the order of investigating magistrate and only in case if investigators and prosecutors can prove that this very property was used or can be used for committing a crime. Such regulation provides better safety for Ukrainian entrepreneurs, and law enforcements will not be able to seal business just because.
Another controversial norm concerns lawyers. According to the new Code, only lawyers registered in the Single registry of lawyers and legal practices can advocate suspects in court. Relatives and law specialists cannot be defense attorneys. On one hand, critics say this norm limits human rights. On the other hand, specialists note that this norm is necessary to prevent frauds. There were cases when dishonest students of law faculties wanted to earn extra money and offered poor assistance or when businessmen established fly-by-night companies with lawyers just out of school working there. Formally they did not violate the law, thus it was impossible to bring them to responsibility.
Moreover, changes concern not only lawyers, but also prosecutors. From now on prosecutors are charged with determining the course of investigation and investigator's actions, as it is a prosecutor, not investigator, to present the case in court and answer for legitimacy of collected evidences. Some Ukrainian politicians complain that such norm will give prosecutors superpowers. But Prosecutor General of Ukraine Viktor Pshonka believes that the given norm will make his subordinates more responsible.
The new Criminal Procedure Code also cancels acknowledgement of guilt, meaning there will be no point to "hammer out" testimonies. However, the press office of the Interior Ministry explained that sincere acknowledgement would remain. If certain Mr. Petrenko wants to confess a crime, investigators will register it in the Single registry of investigations. It will be forbidden to seek testimony of a person, who was not read his right to remain silent. Investigators cannot torture, threaten or humiliate a suspect. However, investigators could not do this even under the old Code.
Having talked to lawyers, legal experts and attorneys we have a clear impression that many of them still do not fully understand how they are supposed to work. Moreover, for the majority it is more convenient to see only negative points. The situation was very well described by the president of Human Rights League Ihor Godetski, who said: There are pessimists and optimists among lawyers. I believe I am a realist and I see both positive and negative consequences of the new criminal Procedure Code. The Code arises many questions, but still it is good that there is a development."
We cannot live like that
Adoption of the new Code was inevitable. The fact is that the old regulations have been in operation since 1960 and the parliament has introduced already 159 amendments for the years of independence. Finally, the Council of Europe representative Drago Kos declared that the Code could not be revived, and it would be easier to adopt a new one.
The old Code had Soviet punitive approach. According to it, the courts had a mission to root out criminality. Nikita Khrushchev, initiator of the Code in 60s, even promised Soviet people to show the last criminal on TV.
Today the Code of 1960 is considered out of date and drastic, but under Khrushchev its regulations were almost revolutionary. Take into account that under Stalin regime the Code did not limit the discretion of prosecutors and provided for such post as "super prosecutor", who was in charge of all investigative institutions. Detectives did not investigate, but played the role of "local agents". There was no pre-trial investigation in Soviet Union, meaning nothing could stop law enforcement officials to shoot you right after the institution of a criminal case. The Code followed the principle of comrade Stalin "It's better to let 10 innocent men be punished than let one guilty go free."
The new Criminal Procedure Code is not a revelation, of course, but the majority of specialists agree that its positive or negative consequences can be estimated only after some years of operation, when law enforcements and lawyers will get used to its conditions and requirements.
Alina Yeremeyeva
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