"Abuses by law-enforcement agencies do not allow businesses to operate in Ukraine"VICTOR MOROZ, MANAGING PARTNER AT SUPREMA LEX ATTORNEYS AT LAW, ADMITS
— Granting suspects the right to appeal against a notice of suspicion is one of the pieces of legislative know how included in the Criminal Procedure Code (CPC) of Ukraine as part of the procedural stage of judicial reform. How does this tool work in practice?
— Appealing against a notice of suspicion has a number of nuances. First, there are specific time frames: no sooner than two months from the day the person was served the notice of suspicion on committing a crime, but no later than the prosecutor files a bill of indictment to the court. At the same time, in practice, the prosecutor's office is trying to link the completion of the term for appealing against the notice of suspicion to the date of disclosure of criminal proceedings materials to the defense team. Although the very disclosure of criminal proceeding materials does not mean that the bill of indictment will be immediately sent to the court, some investigative judges agree with the approach of the prosecutor’s office and refuse to appeal against the notice of suspicion before sending the bill of indictment to the court.
Second, although legislators provided for the possibility of appealing against the notice of suspicion, many investigative judges, considering complaints for canceling suspicions based on the fact that the notice of suspicion does not contain a legal qualification of a criminal offense of which a person is suspected, refuse to satisfy them on the grounds that these issues can be resolved during legal proceedings. I cannot agree with this approach since, according to the CPC of Ukraine, the content of a notice of suspicion will have specific requirements for failing to comply with, which shall serve as the basis for its cancellation.
Third, legislators failed to provide for consequences of canceling the notice of suspicion by the investigating judge, which allows the prosecution to continue the pre-trial investigation and to serve the notice of suspicion to the person for a second time. In practice, in the event that a complaint against a notice of suspicion is satisfied, it is necessary to seek closure of criminal proceedings in connection with the expiry of pre-trial investigation term. In my opinion, it is advisable to supplement the provisions of the CPC of Ukraine with provisions regulating the issue of the consequences of canceling a notice of suspicion, in particular, to provide for the prosecutor's duty to close criminal proceedings in this case.
— The amendments to the CPC of Ukraine, which came into force on December 15 of last year, significantly improved the legislative concept of calculating the terms of pre-trial investigation. Have new time frames become a disciplining force for the representatives of pre-trial investigation bodies?
— Despite the fact that legislators regulated the pre-trial investigation time frames, these changes to the CPC of Ukraine did not become a disciplining force for the prosecution, since the investigating judge was given the opportunity, at the prosecution’s request, to endlessly extend the pre-trial investigation period and prosecutors use this opportunity actively. Although lawmakers have allowed both the defense team and the affected party to defend themselves against extending the pre-trial investigation period by filing a motion to the investigating judge for limitation of such period. This mechanism can be quite efficient since it obliges the prosecution to conduct the pre-trial investigation in a limited period and either close the criminal proceedings or send the bill of indictment to a court.
— Not all criminal procedural innovations strike root in practice. For example, in the spring of this year legislators rejected the new algorithm for filing motions from investigators, which was linked to the place of registration of the pre-trial investigation body as a legal entity. In your opinion, what mechanisms of the CPC of Ukraine should definitely be improved?
— Since the adversarial nature of judicial proceedings is one of the principles of criminal proceedings, in practice the criminal process still has a prosecutorial bias, which is why I believe that it is necessary to improve a number of articles of the CPC of Ukraine. For example, it is necessary to amend the provisions of articles regulating the collection of evidence, terms for carrying out pre-trial investigation, appeal against procedural judgments delivered by the prosecutor's office, investigative judges and court in order to ensure the real, and not the nominal adversary nature of the judicial process.
— Today, there are criminal law risks in almost all areas of activities. What kind of legislative fuses against possible abuse by law-enforcement does business need today?
— Unfortunately, international companies are afraid to invest in the Ukrainian economy, and Ukrainian business prefers to structure its business processes through foreign jurisdictions, because abuses by law-enforcement agencies do not allow businesses to operate in Ukraine. In my opinion, in order to minimize pressure from law-enforcers, it is necessary to introduce the institute of tough responsibility of investigators for abuses and actively, even indicatively, apply it in practice. And understanding that if you do not follow the requirements of the CPC of Ukraine, you will be subject to disciplinary and, probably, criminal sanctions, investigators will stop abusing their powers, and the pressure on business on the part of law-enforcement agencies will cease to exist. Any other selective amendments to the CPC are unlikely to have a have positive result.
— Search is one of the most popular investigative actions. What are your observations: did the number of abuses during searches fall after the introduction of mandatory recording by video recording media?
— The very video recording of a search does not prevent violations and abuses on the part of investigators. Thus, investigators, when carrying out a search, do not always provide access to attorneys, seize servers, and commit other procedural violations. Nevertheless, it must be recognized that after the introduction of video recording, the number of blatant, outrageous situations has fallen in number.
— How can we assess in general the steps taken by those in power to reduce pressure on business entities, particular through adoption of the so-called Stop Masks-Show Laws No. 1 and No. 2? Did they improve the business climate in Ukraine?
— As an expert involved in the development of these legislative initiatives, I can say that the foreseen innovations partially improve the business climate in Ukraine and minimize certain abuses on the part of investigators and prosecutors. In addition to the mandatory video recording of a search procedure, the mandatory admission of lawyers to a search, the responsibility of investigators for abusing their powers, the possibility for a person who does not have the status of a suspect or an accused in a criminal proceedings, to appeal against procedural judgments affecting the rights of such person, and a number of other useful tools for protection, are among the main innovations. However, most of these mechanisms are either not sufficiently regulated (for example, the procedure for bringing an investigator to responsibility for abuse of powers) or do not operate in reality (for example, the ban on seizing servers). Today, these positive legislative innovations require their logical continuation and transfer into actual practice.