Dispute Resolution |

Viktor BARSUK ,
SeniorPartner, EQUITY

Vyacheslav KRAHLEVYCH ,
Partner, EQUITY

Tumultuous innovations

At the procedural stage of judicial reform, the main legislative efforts were aimed at the comprehensive improvement of economic, administrative and civil proceedings, embodied in the adoption of the relevant law by the Ukrainian Parliament on 3 October of last year. But almost the greatest resonance in the information space was caused by the innovations, which were proposed for introduction into the Criminal Procedure Code of Ukraine (CPC) by member of parliament Andrii Lozovoi, — with regard to the terms of pre-trial investigation.

It is possible to distinguish three fundamental innovations provided for the criminal process during the parliamentary consideration of draft law No. 6232 in the second reading. First, it is proposed to substantially adjust the terms of pre-trial investigation. Thus, currently the term of pre-trial investigation begins from the moment the person receives the notice of suspicion. The term from the moment of entering the information in the Unified Register of Pre-Trial Investigations (URPTI), which is considered the beginning of a criminal proceeding, until the moment the person is given notice of suspicion, is actually outside the range of procedural regulation. In practice, this has led to situations where so-called fact proceedings can last for years, as they are not time-limited. Such cases contain real threats to abuses by law-enforcement agencies, as investigators can systematically conduct searches, interrogations and other investigative actions without notifying the person of suspicion. Moreover, since such person does not have the procedural status of a suspect, he/she is deprived of the right to appeal against relevant actions to the investigating judge.

Amendments to the CPC provide that investigators will be limited to a clear period of three or six months (it is calculated from the moment the information is entered in URPTI) — to give notice of suspicion to the person, otherwise the proceeding is subject to closure. The main criticism of these innovations is that such short periods will block the work of investigative bodies, and most high-profile criminal proceedings would have to be closed. At the same time, the opponents of changes forget that the possibility exists to prolong the terms of pre-trial investigation by the decision of the investigating judge in those proceedings where the person was not given notice of suspicion, therefore, the extension of the term will depend on justification of the relevant petition filed by the investigator and level of complexity of each case. At the same time, in proceedings in which a person already has the official status of a suspect, the prosecutor shall extend the period. In addition, the approach is maintained whereby the period of suspension of proceedings is not included in the total period of criminal proceedings. From this point of view, legislative innovations are more positive than negative, as they help to ensure the procedural rights of the parties to the criminal proceeding.

The second important legislative know-how is to grant a suspect the right to appeal against the notice of suspicion. According to the results of complaint consideration, the investigating judge can reverse the suspicion, though his/her decision is subject to appeal. Such changes cannot be assessed unambiguously. Certainly, from the standpoint of defense, this provision provides attorneys with a broader range of tools, enabling the effective blocking of the pre-trial investigation, repeatedly submitting petitions for reversal of suspicion. However, such provisions do not quite correspond with general stages of criminal proceedings, because suspicion is essentially a document of a criminal charge, which in the future, if there is evidence, will form the basis of indictment. In addition, they discord with the philosophy of the current CPC of Ukraine, according to which consideration of criminal proceedings in their essence and investigation of reasonableness of accusations are the prerogative of a court, but not of the investigating judge. However, the mechanism for appealing against suspicion will partially remind one of the rather old complaint practice of appealing against a ruling on the initiation of criminal proceedings. Therefore, in terms of the legislative sequence, such step appears highly doubtful.

The third important point is the introduction of amendments to Articles 132 and 184 of the CPC, which regulate the jurisdiction over consideration of petitions for applying precautionary moves. It should be noted that there has been a long debate in the legal community on  determining a court’s territorial jurisdiction when the prosecution considers petitions. The problem was interpretation of the term "pre-trial investigation body", because in some cases investigative units are territorially separated from the pre-trial investigation body. For example, there was a situation when investigators of separate units of the Prosecutor General's Office of Ukraine (GPU), Prosecutor's Office of Kyiv submitted petitions not to the court for the seat of the GPU or Prosecutor's Office of Kyiv, but at the actual location of the relevant unit. A similar story happened with the National Anti-Corruption Bureau of Ukraine (NABU), whose petition was considered by the Halytskyi District Court in Lviv in view of the fact that the location of the Lviv territorial administration of NABU is Halytskyi District in Lviv. The Supreme Specialized Court of Ukraine on Civil and Criminal Cases (SSCU) has repeatedly expressed its stance on this issue. Thus, in one of the explanations it noted that in such cases the investigator shall apply to a court precisely at the place of registration of the pre-trial investigation body, and not at the place of the actual location of the structural unit. However, the SSCU later changed its legal position, indicating the admissibility of considering petitions at the location of the unit of a pre-trial investigation body.

The proposed changes clarify details on this issue, as they clearly stipulate: a petition for applying precautionary moves on the basis of an order adopted by an investigating judge is filed with a local court within the territorial jurisdiction of which the pre-trial investigation body is located (registered) as a legal entity. Similar rules have been established in terms of the order issued by the investigating judge on conducting searches.

It should be noted that such approach may be partially justified in respect of bodies operating within the city of Kyiv, because the corresponding district court of the capital will be assigned to each of them. However, the new rules can be extremely dangerous for national police divisions, namely, for territorial police divisions in the districts of regions. Today, only the main directorates of the National Police of Ukraine in regions are registered as legal entities, district divisions do not have the status of legal entities. Therefore, based on proposed changes, the investigators of such divisions will be forced to submit petitions only to regional centers — at the place of registration of the main directorate. This situation may paralyze the work of the local national police, which is responsible for investigating the majority of crimes specified in the Criminal Code of Ukraine.

Finally, it should be emphasized that the proposed specification and partial reduction of procedural terms can be considered positive developments in criminal proceedings, unlike the granting of the right to appeal against suspicion and excessive limitation of territorial jurisdiction in considering the petitions of investigators. Implementation of these innovations in practice may lead to the effect opposite to that expected by legislators.