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
examination;
- obtain a court order to access
documents and to seize them;
- participate in investigative actions
and challenge the actions of the
investigator.
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
court.
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.
