Comments on the Draft Criminal Procedure Code of the Directorate General of Legal Affairs Council of Europe (Version of December 2003 – Ref. DGI / DOC / CPC / (2004) 01)
Criminal procedure rules are among the legal pillars in every country. Responsibility for the socially most dangerous acts, the criminal offences, is always established in accordance with these rules. Since this responsibility always entails limitations of an individual’s rights and freedoms, it is of crucial importance how the procedure leading to it is organised. It has to take into account the position, rights, freedoms but also the duties of persons suspected, investigated, accused, prosecuted and sentenced for criminal offences and of persons who are victims of such offences, while at the same time establishing legal, honest and fair rules that will enable authorised institutions of every country to establish and prove the necessary facts and to find enough reasons to decide on the liberation or punishment (and its kind) for the accused.
Since basic human rights were already breached by the criminal offence that is the subject of criminal procedure, there must not be a new breach during this procedure itself. However, preconditions ensuring that the procedure will be an efficient one have to be established. The right of the accused and of the victim and also of other participants of the criminal procedure to have a fair trial, which will start and end in reasonable time, is also one of the very important rights. Sometimes all these preconditions run against one another but every country has to find the proper balance among them in order to be sure that the decisions taken by its courts will be legal, honest and efficient, leaving no doubts on the crucial questions of the criminal procedure.
When major changes in society as such take place, they are followed by major changes in the legal system, too. It is not always very easy to break with the old practices and to develop a brand new system which will meet all the requirements of modern criminal procedure rules. That is why any effort of this kind has to be welcomed and assisted in every possible way. That was the intention of the expert for this opinion, too, in order to provide Ukraine with his comments, expressed in the most positive manner and with the sincerest intentions to help in the development of a modern criminal procedure, which could become one of the models for other countries in a similar position.
Remarks, comments and proposals of the expert to the draft Criminal Procedure Code of Ukraine are first given by chapters and at the end there are some general remarks and conclusions relating to the draft as such. It is very clear that the authorities of Ukraine have undertaken major efforts to improve their criminal procedure code, and it can only be hoped that any further work on this draft will be done in the same way.
Chapter 1 – Criminal Procedure Legislation and its Tasks
In connection with Article 1 two possible problems can be mentioned:
1) Does the text of the second paragraph mean that there are other criminal procedure codes in the country? This is usually not the case in other countries since legal security of the participants of the criminal procedure requires a clear and comprehensive set of rules, given in one place.
2) Direct application of the international treaties mentioned in the third paragraph has to be welcomed, however, this is sometimes technically very difficult to achieve as those treaties are very general and do not contain self-implementing rules.
In Article 4 it would be advisable to add a solution on the rules according to which the procedure will be continued if it started according to a code that had been significantly changed before the procedure came to an end.
In Article 6 the term “pre-trial investigation” is not explained in the best possible manner since it is explained twice: first as the “inquiry and the pre-trial investigation” and later as the “activity of an investigator or…”. Just in order to avoid any misunderstanding it would be much better not to use double definitions.
Again, in Article 6 it would be useful to change the definition of “parties of criminal proceedings”, namely by deleting these two phrases: “from the side of accusation” and “from the side of defence”. To define the investigator, person conducting inquiry, chief of investigative division or of the body of inquiry … as the “side of accusation” only is not the best possible way since they have to collect evidence not only against but also in favour of the suspected or accused person (see Article 16!). And if the first phrase (“from the side of accusation”) is deleted, there is no need for the other one either.
Chapter 2 – Basis of Criminal Proceedings
In Article 8, para. 3, the problem mentioned in relation with Article 1 appears again: it looks that there really are some other criminal procedure rules?? And in para. 4 it would be advisable to mention international treaties, too.
In Article 12, paragraphs 1, 2 and 5, according to Article 8 of the ECHR (Convention for the Protection of Human Rights and Fundamental Freedoms), it has to be mentioned that the reasons for the court ruling on the admissibility of interference with private and family life have to be listed in the Law. It is strongly recommended to mention electronic means of communication (E-mail, internet) explicitly in para. 2 in order to avoid any misinterpretations and to define the “exceptions”, mentioned in the same paragraph.
It is not clear what the relations among paragraphs 2 and 4 of Article 12 are: in Paragraph 4 some ways of intrusion into private life are mentioned (taking information off the channels of communication, observations,..) but only for the protection of protected persons. The first question which will have to be solved is the question of relation among “exceptions of the privacy of the conversations” (as mentioned in para. 2) and “taking information off …” (as mentioned in para. 4), since the reasons for the latter measure are much stricter than for the first one, although they (the measures) are the same. The second question concerns the admissibility of measures which are mentioned only in para. 4: is technical obtainment of the information and observations allowed only for the purposes mentioned in para. 4 and not also for the purposes mentioned in para. 2? If this is the case, a serious problem appears: why can these methods not be used for other purposes as is the case in many other countries? “Protection of protected persons” is a reason not wide enough to give the law enforcement agencies a strong tool in their hand to prevent and investigate crime with all means available.
Para. 5 of Article 12 adds another problem: does its text mean that no court ruling is needed for visual observations since they are not mentioned?
In articles 13 and 15, according to the third Paragraph of Article 6 of the ECHR, the need for using a language understood by the suspect or accused will have to be added since this is not solved in Article 19.
In Article 19 the phrase “language of the majority of population of this very region” will have to be clarified – it is not clear, which “very region” is meant by the first paragraph.
Article 21 is entitled “Publicity” although its contents do not have anything to do with this title.
In Article 22, para. 3, some exceptions are mentioned in relation to the openness of a trial. Some questions arise on the basis of these exceptions: it is not clear what the real meaning of the exception mentioned under No. 2 is: “to provide non-disclosure of information obtained in the course of inquiry and pre-trial investigation”? Are not all information obtained in the course of inquiry or pre-trial investigation? If this is the case, all trials will have to be closed. Even if this is not the case, strict implementation of this exception will make “openness of a trial” a non-existent category.
Reasoning behind para. 4 of Article 22 is not in conformity with the demands stated in para. 1 of Article 6 of the ECHR – it goes to far: the fact that some information was obtained during intrusive electronic surveillance is not enough to exclude the public from the trial. What counts is not the formal fact of intrusion in the course of inquiry and pre-trial investigation but the substance of the obtained information and the court should be entitled to decide on the basis of the contents when to exclude the public from the disclosure of such documents.
Chapter 3 – Courts
Articles 28 and 29 do not fit into this chapter dealing with powers, composition and supervisory activities of the court institutions since they are dealing with the powers of two persons – representatives of the institutions.
Chapter 4 – Public Prosecutor
In Article 31, para. 3, the expressions “his/her sense of justice” and “internal convictions” are used without any necessity. The public prosecutor is guided by law (as s/he understands it = the sense of justice and internal convictions) and by instructions of Prosecutor General of Ukraine and that is enough.
From Article 33/1 it is possible to understand that the public prosecutor who was involved in the pre-trial procedures does not represent prosecution in the trial. There are some positive (another independent judgement on the prosecutorial actions before the main trial) but many more negative consequences of such solution. Only the prosecutor who took part in the pre-trial proceedings knows all details about the case, knows the good and the weak points of the prosecution and, finally, s/he is normally personally interested in bringing the case to an end. Second control, imposed by the new prosecutor, gives no added value – the first prosecutor is responsible for legality and quality of prosecutorial actions in general, too.
In Article 34/1 and 34/2 the cases of “general category” are mentioned without any further explanation. It is expected that an appropriate definition of “general category” is to be found in (an)other law(s).
Chapter 5 – Investigator, Chief of Investigative Division
A general comment has to be mentioned: why specifically mention the Chief of Investigative Division? S/he is the head of the investigators anyway with all the powers of a superior civil servant, authorised by his/her position to certain actions and no explicit mentioning of his/her powers as a head is really necessary. For example, the powers of the Chief of investigative division mentioned in Article 40 are normal powers of the head of the service with one exception, which is mentioned in para. 4. It is difficult to understand why the head of investigative division, who is responsible for the legality of actions of his/her subordinated officials, must not reverse a resolution of an investigator. In practical terms, investigators might be young, without experience, and a mistake can happen. Waiting for the public prosecutor to decide on the basis of a motion of the Chief might cause some harmful consequences. A much better solution would be to give the Chief of investigative division the power to reverse the resolution of the subordinated investigator and to give the investigator the possibility to challenge this reversal with the public prosecutor.
From articles 36/3, 37/3, 40/6, 43/3 and 44/3 it can be understood that ways for different cases of disagreements are widely open. Basically this is an understandable solution (in order to find the truth and to prevent misbehaviour of certain officials) but it would be advisable to make those procedures more clear, especially those concerning the decisions of superior officials and their consequences in cases where they would agree with the officials who started the disagreement-procedure and not with their superior.
In Article 38 the terms of “sense of justice” and “internal convictions” are used again – see comments to Article 31/3.
Chapter 6 – Bodies of Inquiry
In Article 41 no less than 10 different bodies of inquiry are mentioned. It is not realistic to expect that all these bodies and their heads will be capable to deal with the strong and broad powers mentioned in articles 42, 43 and 44. How can heads of diplomatic and consular establishments and captains of sea and river crafts act in a legal and professional manner if inquiries are not part of their real occupation?
Remarks concerning the position of the chief of a body of inquiry are the same as those concerning the Head of an investigative division in Chapter 5.
Concerning Article 44, first of all, it has to be repeated that it is simply impossible for all 10 bodies of inquiry and their employees to fulfil the tasks (powers) given in this article, especially since not all of them are real specialists in the field of inquiry.
The authorisation for the persons conducting an inquiry given in para. 2 is too wide. Resolutions of these persons cannot be binding for all juridical (that probably includes public institutions, too) and natural persons, simply due to the fact that there are no specific conditions for such resolutions. Having in mind all the bodies that can issue such resolutions and the absence of more detailed rules, it is strongly recommended to change the system of these resolutions.
Chapter 7 – Suspect
In Article 45/1 there are three grounds that make a person a suspect. The last two are clear but the first one (“concerning whom a criminal case has been brought”) is not. In Article 220 the expression “institution of a case” is used and probably this is the correct meaning of the phrase used in 45/1 -1. If this is the case, two resolutions have to be written at the same time: one according to Article 45/2 and the second one according to Article 221/1. This is not the most practical approach, especially due to the fact that no international legal treaty asks for a formal document on finding somebody a suspect.
What is the reason for informing somebody non-present about the fact that s/he was found suspect as mentioned in 45/4? Any investigative or procedural actions performed by persons conducting the inquiry, investigators or public prosecutors against a particular person will have to be conducted in a legal, proper way, respecting all the suspect’s rights. Just the fact that somebody has been acknowledged as a suspect does not threaten his/her position or rights and it does not have the meaning of “charging somebody with a criminal offence” as mentioned in Article 6/3 of the ECHR.
Following this decision the inquiry will start and this is far away from charging somebody with a criminal offence. Informing him/her about this decision will have only one consequence: the evidence will be destroyed, the proceeds of crime will be hidden and the suspect will escape. In order to have an efficient inquiry or investigation this paragraph will have to be deleted.
It is understandable that the suspects who are detained or in respect of whom preventive measures are applied have to be informed about the resolution but in Article 45/5,6 something very important is missing: according to Article 6/3-a of the ECHR the accusations have to be announced to him/her “in a language which he understands”. It is also not sure if the resolution on finding somebody a suspect is mentioned in Article 19. If this is not the case, this (text about the language) will have to be added somewhere – either in Article 45/5 and 6 or in Article 19.
In Article 46 paragraphs 4 and 5 mention the suspect’s activities which are usually (in other countries) considered as criminal offences. If this is the case in Ukraine, too, these paragraphs are unnecessary.
As a conclusion to this chapter the suggestion must be given to reconsider the whole idea on the very formal approach to the fact that somebody could be a suspect of a criminal offence and to delete the idea of the resolution on finding him/her suspect from the law.
Chapter 8 – Accused
Again, one wonders why issue a formal document, a resolution, on the fact that somebody is recognised as an accused as mentioned in Article 47? ECHR does not ask for that and it would be satisfactory if the person were familiarised with the letter of accusation mentioned in Article 304. If before that some actions are taken against the person in question, s/he can be informed according to Article 6/3-a of the ECHR “of the nature and cause of the accusation”, which does not ask for a specific form of information.
There is a list of rights and duties of the accused person in Article 48. It would be advisable to check if really all his/her rights are mentioned in Paragraph 1 or to start the introductory sentence with the phrase “among others”. As far as duties are concerned, especially paragraphs 3 and 4 – see comments to Article 46/4 and 5.
The text of Article 53 underlines the comment from the first paragraph of this chapter on the useless nature of the resolution on considering somebody as accused – it is obvious that issuing the resolution will take place before the inquiry and pre-trial accusation and the main goal of these two procedures is to establish the facts, which should already be mentioned in the resolution. So, why draw a document which will very likely be changed in accordance with the findings of the inquiry or pre-trial investigation? On the basis of what activities was the complete evidence (mentioned in Article 49) collected and this document drafted if inquiry starts after its issuance?
The same comments apply to the “accusation” mentioned in this Article and in the previous one (52): why bring accusation before the inquiry or pre-trial investigation if the facts yet have to be established?
And what is the meaning of the term “accusation” – is this the same as the letter of accusation from Article 304 or something else, not defined in this chapter?
As a conclusion to this chapter the suggestion must be given to reconsider the whole idea of the very formal approach to the fact that somebody could be accused and to delete the idea of the resolution on finding him/her accused.
Chapter 9 – Defender
The possibility of “immediate relatives” acting as defenders as mentioned in Article 54/2 does not correspond to the demand of Article 6/3-c of the ECHR, which explicitly asks for “legal assistance”. It is clear that there is no request in the law for “immediate relatives” to have legal knowledge, so they cannot offer any legal assistance. This is underlined by their auxiliary role in cases where the participation of the defender is obligatory (Article 54/4) and raises the question of why let them into the procedure if they cannot do anything to improve the legal position of the accused?
The statement that “a defender can be admitted to participation in the case at any stage” is not clear enough. It will have to be completed by at least some precise conditions on his/her admission. Otherwise a defender will be in the position to literary take part in every activity during the inquiry or pre-trial investigation, even in ones where certain restrictions have to be introduced (for example in the case of undercover operations) or, s/he will not be admitted to participate at all (see Article 55/2) until a resolution, another useless formalised act will be adopted. There have to be precise criteria for the first admittance of the defender to participate in the case and not only the very general one.
List of possible defender’s intentions, given in Article 55/1, is good but to a certain extent restrictive. Is it sure that the defender cannot go after any other improvement of the client’s position than the ones mentioned? Maybe a general expression on that would be more useful than a list of possible views of the defender’s activity.
In point 1 of Paragraph 2 of Article 55 the problem already mentioned in the comments to Article 54 re-appears: first questioning of the accused (this might be contrary to Article 6/3-c of the ECHR) and performance of investigative actions have the priority over the defender’s rights.
There are other limitations in point 3 (the defender can only peruse records of specific investigative actions) and point 13 (the defender does not have access to a secret document). Such restrictions are against the right to a fair trial as described in Article 6 of the ECHR and are a consequence of a very formalised and detailed procedure and of the over-general right of the defender to participate in the case from the very beginning, when the rights of his/her client are not threatened in any way.
The list of possible actions in the second paragraph of Article 55 is another unnecessary formalisation: in the same way as goals of the defender’s activity can be described in a general manner, also his/her actions can be described in the same way, at least in this part of the law.
Concerning point 6 of Paragraph 3 of Article 55 – see comments to Article 46/4 and 5.
It is not clear what the purpose is of limiting the defender’s right to communicate with the media before the pre-trial investigation is finished as described in Article 55/3/6? Secrecy of the investigation, protection of his client or protection of institutions dealing with the case? Such a limitation might be challenged in the line of Article 10 of the ECHR.
In Article 56/1/3 the term “relative” is mentioned. There is no definition of this term in Article 6.
Exclusion of the defender on the basis of the reason mentioned in 56/2/4 is too rigid a measure. There have to be other means of disciplining the defender and not to exclude him/her as a defender. It is not very difficult to envisage a situation when the exclusion on this basis would be considered as a breach of Article 6 of the ECHR.
Here the general problem of admitting the suspect, the accused and the defender to participate in the inquiry or in the investigation appears again, establishing the mandatory participation of the defender in some cases where the formal resolution on finding somebody a suspect is adopted.
The system of the invitation of a defender as described in Article 58/1 and 2 is a rare one. Usually the public body (prosecutor or court) officially and without a special request of the accused or defendant invites the defender to all events where s/he may participate. With such “automatic” invitations a lot of problems can be solved, including the one mentioned in para. 4.
What does the expression “if they agree” in Article 58/6 mean? The ECHR in its Article 6/3-c uses completely different criteria: when the interests of justice so require, the expenses of the defender are provided by the state. In all other cases the beneficiaries have to bear the expenses, whether they agree or not.
What is the purpose of informing the advocate association about removal of the defender from the case? This is not a punishment – it is just a measure to protect the impartiality of procedures!
There should be no obligation for the suspect, the accused or the defendant to prove the reasons for the renunciation of the defender as mentioned in Article 60/3. To have a defender is their right and not an obligation (except in cases of mandatory defence) and they can at any time decide to appoint a new defender. If the reason for the solution provided in the law is fear of delays in the procedure there are other possibilities to sanction such behaviour. The court cannot reject a renunciation because that would mean that the suspect, the accused or the defendant is forced to use a defender s/he does not want to use. Of course, even in the case of renunciation, the obligation for a defender to continue with his defence until the new defender takes it over has to be included in the law.
At the end of this Chapter a strong recommendation should be given to reconsider the whole idea on the defender’s first participation in the procedure.
Chapter 10 – Victim
Why is another formal resolution (on recognising a person as victim) in Article 61/ 4 needed? This is usually established during normal proceedings and only in cases where the court does not admit the victim’s participation in the case, there should be a right to appeal.
It has to be welcomed that victims, on the basis of powers in Article 62, have a very strong position in the Ukrainian criminal procedure, but again: listing their powers in this part of the Code could be considered as their limitation, too, since they will not be entitled to do anything else during the procedure and this is not always the case.
In relation to Article 62/3, 4 – see comments to 46/4 and 5.
Chapter 11 – Civil Plaintiff and Civil Respondent in a Criminal Case
There is a great problem concerning the policy for civil claims in the criminal procedure in Article 63. First of all, it is not very reasonable not to give the court the possibility to decide not to solve the problem of civil claims if that would take too much time and the criminal procedure itself would become too long. In such a case the plaintiff would have to be instructed to launch civil proceedings. Another problem that appears in this article is why the renunciation of the claims by the plaintiff would deprive him/her of the right to start civil proceedings? It would be normal that only if the criminal court rejects the claim, the plaintiff cannot start the civil procedure. In all other cases the decision has not been made yet and civil proceedings can be launched.
Concerning powers of civil plaintiffs and civil respondents, listed in Article 69 – see comments to articles 62 and 55/2.
Concerning Article 69/5 – see comments to Article 46/4 and 5.
Chapter 12 – Legal Representative, Representative in Criminal Case, Person
Providing a Bail
Concerning articles 70/4, 74/5 – see comments to Article 46/4 and 5.
Chapter 13 – Witness, Court Expert, Specialist, Attesting Witness, Interpreter
There is an exclusion from the witnessing duty in Article 76/2/6 for persons who directly performed operative-search activities, concerning methods of their activity and circumstances of obtaining the evidence in concrete criminal cases. Such a general exclusion represents a breach of the right to a fair trial as given in Article 6/3/d. The defendant has to have the right to be completely informed about the operational methods and circumstances of obtaining the evidence in order to point out possible illegal methods or other irregularities, which can easily happen during the inquiry or investigation and to defend him/her-self against the results of these methods. Of course, there has to be a possibility to protect some information but this must be done on a case-to-case basis and not on the basis of a general restriction.
The wording of Article 76/3/2 and 76/6/1 is not clear: against which disclosure are some persons protected?
In Article 79 a very simple question will have to be solved: what happens in there is no possibility to ensure the participation of (both) attesting witnesses – if, for example, it is late, nobody wants to take this role, they are afraid? Can the procedural action be taken and under what conditions?
Chapter 14 – Ensuring of Security of Persons Who Participate in Case
It would be expected that protective measures apply not only to secure the administration of justice, as mentioned in Article 81, but also to protect people’s lives, health and property.
According to Article 83/1/2 the person under protection has the right to be informed of concrete security measures taken to protect him/her. This might cause some problems since they really do not have to know all the details of protection – the suggestion would be to add “to the extent possible”.
In general, the content of this Chapter is not very often seen in criminal procedure codes. It is the duty of law enforcement agencies to protect people, their lives, health and property in all circumstances and no special criminal procedural rules are normally required – unless, of course, there are special reasons for that in the country adopting the code. However, the contents of Article 88 deserve to be included in this Code.
Chapter 15 – Circumstances that Exclude Participation in Criminal Proceedings
This Chapter lists separate reasons for the exclusion of 6 different groups of participants of criminal proceedings. This makes the text of this Chapter very long (in other criminal procedure laws grounds for the exclusion are given for all participants together) yet still not comprehensive enough: there are some categories of persons whose duties concerning the exclusion are regulated exclusively in this Chapter (judges, investigators) and some categories whose duties are part of other chapters – interpreters, specialists, court experts in Chapter XIII.
Chapter 16 – Procedural Actions and Decisions
It would be useful if a note was made somewhere on the information to participants that they were informed on the use of technical means of recording as stated in Article 101/1.
The content of Articles 102 and 103 is too technical and does not belong in this Code.
The solution provided in Article 110/2 on limited powers of the persons conducting the inquiry (their decision has to be approved by the chief of investigative division) opens the question of the real need for the powers of these persons: if they cannot take decisions alone then they do not need to have the power to do so and it can be given to investigative bodies as such. Of course, that would change the whole system of inquiries and investigations, which may even be a better solution than the current one.
Chapter 17 – Procedural terms
It would be useful to give an explanation of the phrase “good reasons” given in Article 114/2. It is not so important that the reasons are “good”, it is much more important that the term is based on circumstances determined in advance.
Chapter 18 – Procedural expenses and their recovery
If a case is dismissed the procedural expenses usually cannot be imposed on the defendants as it is stated in Article 116/2: they were not found guilty and there is no reason at all to make them pay the expenses. It would be suggested to delete this part from the third sentence of para. 2 and to appropriately reformulate para. 4: the concept “if the case was dismissed” means exactly the same as “defendant was found innocent”.
Concerning Article 117/2 – see comments to Article 58/6.
Chapter 19 – Detention of a suspect
It would be a good idea to add the word “reasonable” before the word “suspicion” in the first paragraph and before the word “suspecting” in the third paragraph of Article 118 in order to make it in compliance with the text of Article 5/1-c of the ECHR.
In the second paragraph of Article 118 some reasons for detention are listed but there are no real grounds given for such decision: a close link between the suspect and the (possible) crime is not enough! There have to be additional conditions for that (linked with the ground given in Article 5/1-c of the ECHR: “for the purpose of bringing him before the competent legal authority” – for example: the suspect is trying to escape, s/he is influencing the witnesses,.. – similar to what is listed in Article 126). If not, the compliance of this Article with Article 5 of the ECHR is questionable.
There are some additional grounds for detention given in para. 3, however, they do not further elaborate the grounds given in para. 2 as they represent a set of new possibilities for detention.
Article 5/2 of the ECHR asks for prompt information of the person arrested, in a language which s/he understands, of the reasons for the arrest and of any charge against him/her. There is no such provision in this Chapter. A record of detention described in Article 119/3 cannot be considered as prompt information since it is clear from its content that the time of the detention is not the same as the time when the record is drawn up. The difference between these two points in time might be quite considerable sometimes. The solution is very simple: at the moment of the detention, the detained person should be informed orally, in the language s/he understands, of the reasons and charges against him. This has to be followed by a record of detention, where the fact on the oral information and on the language used should be recorded. An additional suggestion would be to hand this record to the detainee against his/her signature on a copy, which is kept by the official person.
From the grounds for a detainee’s release given in Article 121/1/1 it is clear (again) that the reason for the detention is merely a suspicion of crime. Bearing in mind what was already stated in the previous paragraphs of this Chapter and also practical implications (will all suspects be detained?), a strong suggestion has to be given to change the system of detention, at least reasons and grounds for this measure. Detention should be an exception and not a rule!
It would not be very wise to allow the detainee to notify other persons of his/her detention by telephone personally as mentioned in the last sentence of Article 123/1. This can be easily misused for other purposes (e.g. warning other perpetrators).
Chapter 20 – Preventive measures
What is the reason for, and the consequences of, a written statement given by the suspect, accused or defendant as described in Article 127/3? Does everyone who is not the subject of preventive measures have to sign this obligation? Are there any legal consequences for him/her if s/he breaks the promise?
The term “not impede establishment of truth in the case”, which is used in several places, including Article 129/1/3, might cause some problems. If the suspect/accused/defendant is preparing his/her defence in accordance with Article 6/1-b s/he is technically impeding the establishment of truth in his/her case. So maybe another expression would be more appropriate, referring to his/her illegal activities in the preparation of the defence.
Possible obligations of the person given in Article 129/2/2,3,5,6 have nothing to do with the aim of preventive measures as given in Article 126 and will have to be deleted.
The text of Article 131/2 is not specific enough. In order to avoid any unnecessary confusion it would be much better just to state that in all cases two (three, four,..) guarantors are needed. What are the responsibilities of the guarantor mentioned in 131/4, 131/5, 131/6?
The measure provided in Article 135 (dismissal from office) is so serious that it should be reconsidered. It is in fact a penalty. Depriving a person of his/her employment can take place only after the conviction of the person is final and not before. This measure clearly runs against the spirit of the right to a fair trial as given in Article 6/2 of the ECHR.
Article 136/2 does not mention from which period the wages of citizens will be taken when establishing the value of the bail.
There is no reason to impose the obligation on the internal affairs body to inform a detained person’s work or education administration on the home arrest as stated in Article 137/4. This may cause unnecessary stigmatisation (contrary to Article 6/2 of the ECHR) and adds additional (and useless) workload on the internal affairs bodies. If there is a problem, the suspect can inform the administration himself/herself.
It is not clear what is meant under the term “electronic means of control” in Article 137/4 and it would be useful to add an additional explanation on that, bearing in mind the right to respect for private and family life as described in Article 8 of the ECHR.
There are serious doubts about the compliance of time limits for familiarisation of the accused taken into custody mentioned in Paragraph 6 of Article 139 with the right to a fair trial as specified in Article 6/3-b of the ECHR. What is the reason not to allow the accused to see the materials collected from the beginning of the custody, which would shorten the time he/she needs to prepare the defence? Ten days will only rarely be enough but also with the extension of the term the situation will not improve: there simply cannot be any time limit for the accused to prepare the defence. What can be done is to fix the earliest possible point in the procedure when the right of familiarisation appears but afterwards no time limits are allowed. But it gets even worse in Paragraph 7: if the time available is insufficient, the custody can be prolonged??? To prolong the custody to enable a person to properly exercise his/her right to defence is an unlawful infringement of the basic human right of liberty under Article 5 of the ECHR. These two solutions (term + prolongation of a custody) would very easily be challenged as being contrary to the ECHR and they have to be changed.
From Paragraph 10 of Article 139 it can be seen that the period of custody depends on the gravity of crime committed and it can even reach three years. This gives the impression that the intention of the custody as a preventive measure mentioned in Article 126 and its grounds as mentioned in Article 127/1 are not respected in this article (139). The conditions given in Articles 126 and 127/1 should be the ones on which the length of custody will depend and not the gravity of crime! And a general remark: periods mentioned in para. 10 are simply too long: 1, 2 or 3 years of custody more than exceed the right of the state to interfere with someone’s liberty before the final conviction and clearly breach Article 6 of ECHR.
On the basis of the general idea according to which only the gravity of crime influences the length of custody, there are no other reasons mentioned for the abolishment of custody (e.g. if the conditions from Article 127/1 are not met anymore) in Article 139 but only the expiration of the established periods.
Since the division of powers concerning different preventive measures in Article 145 is not very clear (especially concerning the substitution or abolishment of concrete measures) it has to be recommended to change the text of the article in such a way that only the person who is in charge of a certain stage of the procedure can decide on the substitution or abolishment of the measure in force at that stage.
The last part of the application on taking a preventive measure, described in Article 146/2, (“information why another preventive measure may not be applied in respect….”) might result in this part of the application being very long and saying little about the need to apply the concrete measure proposed. It would be better to replace it by the information on the circumstances supporting the need for the use of the proposed measure. An example for that can be found in Article 147/2.
On the basis of the general idea according to which only the suspicion of crime influences the decision on the detention, there are no other reasons mentioned for the abolishment of the detention in Article 148/1/1. Of course, the person has to be released if the suspicion concerning his or her commission of crime is proved not to be true or the period of detention is over but there have to be other reasons for the abolishment of detention. What happens in a case in which all pieces of evidence have been collected, the person has admitted the crime and has no intention to escape? According to the text of Article 148 s/he can still be taken into custody. Once again, this concept will have to be re-examined.
The length of detention should not be extended as it is stated in Article 148/3 and especially not for 10 days or even for 15 days on the basis of an application by the suspect or accused (what can be a reason for such an application by the suspect or accused???). If there are conditions met for the person in detention to be send to custody, s/he has to be send there, if not, s/he has to be released!
The period of detention in custody or home arrest may not be extended (as described in Article 150) in order to enable the investigators to complete their work. They have to do it within the terms established or the person has to be released. Bad work on the part of the investigators must not influence the length of custody. Therefore Article 150 will have to be changed.
At the time of any decision concerning custody (start, extension or abolishment) the defender has to be present, otherwise there is a breach of Article 6/3-c of the ECHR. The text of Article 150/3 concerning the presence of the defender runs directly against this rule.
At the end of this Chapter the suggestion has to be given to change the system of preventive measures completely, to make it simpler and in compliance with the ECHR by taking into consideration comments made in relation to concrete articles.
This chapter can be made shorter, clearer, more effective and in accordance with the basic human rights as envisaged in ECHR.
Chapter 21 – Other Measures of Procedural Compulsion
In Article 152 there is not a word on the duty/possibility of the summoned person to inform in advance the person conducting the inquiry, or the investigator, of the reasons for his/her non-appearance. How will the information on the existence of good reasons mentioned in 152/2 be obtained?
It would be very useful to add at least a modest description of possible ways of the execution of the resolution on forcible bringing in Article 153.
What is the reason to forcibly place (by means of a resolution) witnesses or victims into medical establishments as described in Article 154/1? This is a very unique solution, very rarely seen in other countries. It would be better not to use this forcible measure against these two categories of persons. A much better solution would be to make a proposal for them to take part in medical examinations and if they do not follow it, they can suffer negative consequences in the procedure.
Chapter 22 – Subject, Process of Proof and Obligation to Prove
According to Article 159/2 natural and legal persons have to submit all documents to the authorised officials. The problem of secrecy of these documents is not mentioned at all and it is not clear if this is the intention of the draft (that no secrecy can be an excuse for not sending the documents to the authorised official) or it is just an oversight.
Concerning “internal convictions” mentioned in Article 162 – see comments to Article 31/3.
In Paragraph 2 of Article 164 the words “that influenced or could have influenced their reliability” are unnecessary. If evidence was obtained in violation of the Criminal Procedure Code it simply cannot be used as a ground for accusation. Otherwise the right to a fair trial as described in Article 6 of the ECHR cannot be respected.
Chapter 23 – Procedural Sources of Evidences
In Article 168/3 the last sentence from Article 169/3 has to be added.
There is no word on the language which can be used during testimonies of a suspect, accused, defendant, convict or acquitted person in Articles 168 and 169.
Both Article 168/3 and Article 169/3 have to be completed with the last part of the last sentence of Article 169/6. Persons mentioned there do not bear criminal responsibility for refusing to give testimonies or for giving deliberately false testimonies otherwise they would not enjoy the privilege against self-incrimination.
Chapter 24 – Criminal Prosecution and its Types
In Article 177 there is a division of types of criminal prosecution. It is not known what the criteria for this division are since there are some very serious offences listed under the private-public prosecution. The power of the prosecutor and court (which person in the court?) to start the public prosecution in these cases “if they consider it necessary” shows that there are no real grounds for such division. In other countries usually the gravity of the offence is the most important element. This is also said in the first paragraph of the Article 177 but not respected in the catalogue of offences for private-public prosecution (i.e. following articles of the Criminal Code126, 129,130,131, 152,153,154,162,163,…). Adding the “correction” for the prosecutor and court without any real description and conditions for their decision is just a small improvement of the situation.
The list of subjects of criminal prosecution in Article 178 is not clear: there are 4 categories of persons who are involved in the prosecution by definition and one category (victim), for which it is left to be seen whether this will happen.
There is no real reason for the distinction between the discontinuation of the prosecution that rehabilitates and prosecution that does not rehabilitate the person as stated in Article 182/1. It is very logical and in compliance with Article 6/2 of the ECHR that every discontinuation of the prosecution rehabilitates the suspect, accused or defendant. Otherwise, there is an implicit breach of the mentioned Article of the ECHR. The whole concept of the Ukrainian Criminal Procedure Code is developed on the basis of this “artificial” and mistaken distinction. In order not to repeat the comments later on it has to be said that the whole concept has to be reconsidered and changed since it just complicates the procedure and establishes new possibilities for mistakes and breaches of the basic human rights. If the situation in Ukraine is the reason for the introduction of such solution (meaning that according to the opinion of the majority a person is guilty as soon as criminal proceedings against him/her have been instituted) the problem can be solved with other means and not by additionally complicating the proceedings.
Chapter 25 – Procedure of Termination of Criminal Prosecution
In relation to the general concept (rehabilitating and non-rehabilitating grounds!) of Articles 183,184,185 – see comments to Article 182. It is very simple: all grounds are rehabilitating.
Also, the meaning of the expression “where the act does not contain corpus delicti” in Article 183/1/2 is not clear.
The (unnecessary) right of the accused or his/her relatives mentioned in Article 184/2 and 184/3 is the consequence of the mistaken concept mentioned in the comments to Article 182/1.
Prosecution in a criminal case must be terminated if the limitation period expires. The phrase “may be terminated” in Article 185/1 is not strong enough.
The concept of the entire Article 186 is wrong since according to it, it is not necessary to dismiss the case even if the fact of the expiry of limitation has been established. The principle of so-called “legal security” does not allow any continuation of the proceedings in the case of expiry and the text of this Article will have to be changed.
There can be no right of the accused or of the defendant to object the amnesty as mentioned in Article 187/3 – see comments to 182/1.
The obligation of the court in Article 188/1 is not strong enough: if the action of the accused or a defendant is not a criminal offence any more, the decision on the dismissal of the case is a mandatory one. The phrase “the court has the right” is wrong, the court has the obligation. No consent of the accused or defendant for that is needed (as stated in 188/3)!
Concerning Article 188/4,5 – see comments to 187/3.
The phrase “person is no longer socially dangerous” in Article 189/1 and 4 is not a very clear one and opens the door for possible misuses at the court.
Concerning Article 190/5 – see comments to 182/1.
In para. 1 of Article 193 it is stated that persons from age 11 (to 14?) are not criminally responsible. If persons are not criminally liable there can be no sanctions for them and the text of Article 193/3 is not in compliance with this principle.
Articles 194, 195 and 196 introduce something very unusual: the individual responsibility of the perpetrator is replaced by the collective pecuniary responsibility of his/her enterprise, institution or organisation. Since one of the main principles of this Code is equality before the law and since one of the main international principles is a principle of individual responsibility for criminal offences there is a serious question whether the solution provided in 194-196 is not in conflict with these principles.
In this way the personnel of an enterprise is turned into a court especially in cases provided for in Article 196. It has to be recommended that this whole concept be reconsidered.
Chapter 26 – Causes for Beginning of Criminal Procedural Activities
Due to the content of Article 10 of the ECHR (Freedom of expression) the obligations of mass media given in Article 201/3 will have to be implemented with caution.
In Article 202/2 another conceptual problem appears: it is said there that anonymous information cannot serve as a basis for the initiation of proceedings. This runs against the practice of almost all European law enforcement agencies as at the time when terrorism and organised crime are developed to a very high level it cannot be expected that all citizens will be willing to expose themselves to potential retaliation from the offenders.
A much better solution is to initiate the preliminary verification and then stop them if they will not confirm the information anonymously reported.
The possibility introduced in Article 207/1 confirms the reasoning in comments to Article 202/2: communication via the telephone may very easily be anonymous or even pseudonymous.
The terms for the preliminary verification given in Article 209 seem to be very short.
Are the interviews mentioned in Article 213 and explanations mentioned in 214 not the same method?
Why are two documents required on demanding the materials in Article 216 – the resolution and the record? Just the record based on oral demand would be enough.
There is a strong need to add some conditions for performing a controlled purchase or controlled receipt of a paid service and to add the description of these two methods – this is required by the principle of legality. It is also not sure if really all parts of Article 105 can be used for drawing up a report on the outcome of these methods – how and when can the record be read to all persons participating in the performance of the investigative operation if some of them were not aware that they were taking part in a controlled purchase, for example? Will they really want to sign the record?
The content of Article 218 is the same as the content of 216/5 – the term “materials” can be used for “objects and documents”, too.
At the end of this Chapter a general comment has to be given: basically, the contents of Article 226 and articles following it mean that there are two different investigative bodies: body of inquiry and investigator. Although they are authorised to perform their actions at two stages of the procedure and although this is a division based on the tradition and history in Ukraine, they are still both authorised and capable to perform basically the same actions. Would it not be better to have only one single investigative body? This would simplify the procedures very much as well as shorten them.
Chapter 27– Inquiry
Does the list of possible actions in Article 227/1 mean that may not perform any other investigative actions? It this a closed list?
What is the distinction of the pre-trial investigation in full and the one which is not conducted in full as mentioned in Article 228/3?
Concerning the first sentence in Article 228/4 – see comments to Article 45/1.
Chapter 28 – General Provisions of Pre-Trial Investigation
The term “necessary” used in Article 230/2/1 is not specific enough and gives too much discretion to the public prosecutor and court. Some conditions for this decision will have to be added.
Is there any description given on the term “brief pre-trial proceeding” mentioned in Article 230/2/4?
To link the place of conduct of pre-trial investigation to the scene of a crime as stated in Article 231 is completely unnecessary unless this solves the problem of jurisdiction.
In Article 232 six different institutions with investigators are mentioned. Although the request for specialisation of the law enforcement bodies can be heard very often in Europe, such a list of investigative bodies might appear to be too extensive.
Why adopt a special resolution on the establishment of a group of investigators mentioned in Article 236/2? This is a working method, which does not at all change anybody’s (suspect, accused) legal position and such a resolution is just another unnecessary document, which may easily be challenged, too.
The term “person who is accused in non-promised in advance concealment of a grave or especially grave crime” in Article 238/1 is not clear.
It is not clear to whom the information mentioned in Article 240 can or cannot be disclosed. If it is to the general public then all participants of the procedure and not only those mentioned in Article 240/3 have to always be warned about the duty to obtain the permission before disclosing the information. Maybe it is not necessary to issue a direct written warning but the warning has to be somehow recorded.
What is the definition of “urgent cases” mentioned in Article 241/3? Without such (legal) definition the principle of legality will hardly be observed in the course of performing such investigative actions.
The use of technical and other means described in Article 241/6 has to be explained more thoroughly (reasons, forms and conditions) in order to prevent breaches of the right to respect private and family life (Article 8 of the ECHR) and of the privilege against self-incrimination.
Article 244 points out a wider social role of the criminal procedure and its main participants. In the majority of legal systems this role has been abandoned since the criminal procedure case is seen as an individual procedure against an individual person but it is up to Ukrainian authorities to decide to maintain this role or not.
Chapter 29 – Questioning, Confrontation, Presentation for Identification, Verification of Testimonies at the Scene, Investigative Experiment
There is a contradiction between the first and the second paragraph of Article 245: if a subpoena is served by a telegram or telephone message as stated in 245/1, there can be no receipt as mentioned in 245/2. It would be useful to mention somewhere that negative consequences of non-appearance can follow only on the basis of a written receipt of the invited person.
It would be better to use another term for the body that will provide the search – instead of “corresponding body” a more specific term is easy to find.
How will the prosecutor verify the identity of the person detained as stated in Article 246/6?
It would be practical to add in Article 248/1 the institution where the questioning will be conducted and to clarify the term “place of staying of a person” – is it his/her home?
The use of photography, audio and other means mentioned in Article 248/4 has to be announced to the questioned person and recorded, too.
The possibility of a person to demand the giving of written testimonies, mentioned in 248/6, is unnecessary since it may complicate and extend the time of the questioning and can easily be misused for other purposes of the person questioned.
The list of persons entitled to participate in the questioning has to be given in Article 248/8.
Maybe it would be a good idea to add a period (time limit) for which the questioning of the suspect in Article 249/3 will be postponed in order to enable the defender to take part – 1 hour, two hours, three hours,..
The content of Article 249/4 echoes Article 169 but in an incomplete manner so it would be advisable to add a direct reference to it.
Concerning the last sentence of Article 250/1 – see comments to 248/1.
Concerning Article 250/3 – see comments to 249/3.
In Article 251/1 “nationality” and “composition of his/her family” are really not important for the case. “Nationality” might even cause some concern in respect of Article 14 of the ECHR.
There is no solution in Article 251/3 for a case where it would not be possible to state the answers in the first person and word for word. How should it be done otherwise (there should be a detailed description!)?
What is the reason for informing the public prosecutor specifically on the refusal to testify or to sign referred to in Article 251/6 if these are the rights of the suspect and the accused?
In Article 252/4 the privilege given to some categories of persons mentioned in Article 76/3 is not stated and this has to be done.
Concerning the term “nationality” in Article 254/1 – see comments to 251/1.
Concerning the first part of Article 254/3 – see comments to 251/3.
Concerning the second part of Article 254/3 – see comments to 248/6.
It would be a good idea to add “or his/her photo” after the words “It is forbidden to present in advance a person” in Article 258/1.
Concerning Article 258/2: what about privileges given in Article 76/2 and 3?
It would be very easy for defenders to challenge the identification based on the last sentence of Article 258/6: if the witness has already seen the person in photographs, cinema materials, or video recordings, a repeated identification of a live person may not be allowed.
In Article 259/2 the privileges from 76/2,3 will have to be included.
The use of photography, audio and other means mentioned in Article 260/3 and 261/1 has to be announced to the persons taking part in the actions and recorded too.
In Article 261/2 the privileges from 76/2,3 will have to be included.
It is not very clear what the “investigative experiment” mentioned in Article 262 is? It would be a good idea to add some additional information. How can actions, situations or circumstances be reproduced?
Chapter 30 – Inspection, Examination, Exhumation, Seizure, Search, Arrest of Correspondence and Taking Information from Communication Channels
The definition of the term “necessary” in Article 263/2 and conditions for it will have to be added.
The only case which usually allows the performance of an (urgent) inspection of the accommodation or other possessions of a person without a court order is given in Article 263/4. Having said that, Article 263/5 raises some doubts on its conformity with Article 8 of the ECHR.
In Article 266 it would be a good idea to solve the problem which might appear if the person does not want to present him/herself for the examination. The text on the possibility of an examination performed by somebody of the opposite sex is not very clear: does the person have to ask for an examiner of the same sex (what does the term “an examination entailing baring of an examined person…” in Article 266/2 mean?) or is this always the case (excluding, of course, a medical examiner or doctor)? Only the latter possibility is in conformity with the basic human rights. It would also be a good idea to explain the term “urgent cases” in Article 266/5.
What is the reason for notifying close relatives of the deceased of the time of exhumation as stated in Article 268/1? This can cause unnecessary practical problems before and during the exhumation.
Since the term “good” in Article 270/1 is not specific enough, it would be better to replace it by “grounded”. In Paragraph 4 it is mentioned that only in cases where there is no consent of the person a resolution of a judge is needed. This is not a very good solution since all cases of interference with the right to private life usually require a court order – the resolution mentioned in para. 3 is not enough.
The intention of the seizure mentioned in Article 271 is not only to seize the evidence but also the proceeds of crime (or as it is better, if not entirely satisfactorily, put in Article 270 “to attach property with a view of ensuring a civil claim”). This is a demand of several international conventions and it will have to be added to this Article. There is really no need to split this measure into two: firstly on the basis of the resolution of an investigator or … and secondly on the basis of a reasoned resolution of a judge as this is the case in paragraphs 3 and 4. This measure does not interfere with the human rights in a manner that would require a resolution of a judge. That means that also in cases where there is no consent of the person the resolution of an investigator or a body of inquiry approved by the prosecutor (or even without this approval) would be enough.
It would be more practical (natural) if the two sentences in para. 6 of Article 272 would be given in the reverse order – first the one on the search and then the one on the seizure.
Not only the person conducting an inquiry and investigator as mentioned in Article 272/10 but also all the participants of the seizure or search must not disclose the facts about these measures and circumstances discovered.
In Article 276/1 it would be much better to replace the term “good” by something else (grounded, reasonable,..). One of the most important demands in a modern criminal procedure is the principle of “equality of arms”, meaning that there has to be a balance between the threat of the crime in question and the threat to the human rights represented by measures used to investigate and prosecute this crime. Interference with the right to respect for private and family life (as given in Article 8 of the ECHR) as it is described in Article 276 is an interference that has to be particularly well grounded. Therefore it is not just enough to say that this measure can be applied for all criminal offences but only for the most dangerous ones. In Article 276/1 the catalogue of criminal offences will have to be given instead of just mentioning “committed crime”.
For the same reasons the absolute time limit for the performance of this measure will also have to be included somewhere in Article 276.
Sometimes the investigator will not be in possession of the exact data on the identity of persons as asked in 276/4 and 5, so it would be a good idea to add the possibility of conducting this measure also against persons who are not fully identified yet but there are circumstances on the basis of which their identity can be established later.
In all cases the aim of the measure from Article 276 is to “establish the truth” as described in 276/7, so this cannot serve as a basis for an urgent measure given in this paragraph.
Is it really practical to conduct an inspection of correspondence as described in Article 277/1 at a communication institution? In this way it will be difficult to ensure the confidentiality of the measure. Modern technical solutions offer other possibilities.
Only the original of the correspondence and not its copies (mentioned in Article 276/2) can have enough evidential weight for a criminal case.
It will be physically almost impossible to draw a record of each case of conducting this measure (as asked in 277/3) in compliance with Articles 104 and 105. Especially in cases with a large amount of correspondence there will have to be an investigator appointed just for this job. It would be better to simplify it, at least to the extent that for the cases where the correspondence is not seized the record on the inspection of this correspondence would be more simple.
The text of Article 277/5 probably refers to 277/7 and not to 277/8 as stated now, so see the comments to Article 276/7.
Chapter 31 – Conduct of Court Expertise
In Article 279/1 it would be much better if substantial reasons for the appointment of the court expertise would be given and not the list of possible actions of this expertise. The list given might sometimes appear as non-sufficient and too rigid and the court would then have no chance to appoint the expertise for some other questions, too. The list given also opens a serious question of admissibility of some actions (especially those mentioned in lines 6 and 7) before the institution of a criminal case as stated in 279/7.
A complex expertise as described in Article 288 is still an expertise and there is no need to have a separate paragraph on it.
Chapter 33 – Termination of Pre-Trial Investigation
Concerning line 3 of the first paragraph of Article 296 – see comments to Article 182/1. There is no need for a resolution described in this line!
The accused has to have the right to familiarize him/herself with records of all investigative actions and not only those mentioned in Article 299/1 since this is a clear breach of Article 6/3 of the ECHR! The same remark has to be taken into consideration for all articles of this chapter!
Concerning Article 300/9 – see comments to Article 139/6!
In Article 305/1/1 it is not clear what the nature of the given list is – is it just a proposal or does the court have to follow the list mandatorily?
Concerning Article 307/3 – see comments to Article 244.
Chapter 34 – Powers of a Public Prosecutor in a Case Received From a Body of Inquiry or Investigator
What is the meaning of the term “corpus delicti” in Article 309/1/2? It is obvious that it is not used in the way as it is known in the theory of law.
Concerning Article 309/1/10 – see comments to Article 244.
The time limits given in Article 310/2 are very, very short and it would be a good idea to add a possibility for their (justified) extension.
Does the public prosecutor have to separately inform the accused of the court to which the case would be referred as mentioned in Article 315/1? Is this not clear enough from the letter of accusation and from the general rules on jurisdiction?
Chapter 35 – Appeal against Actions and Decisions of the Chief of Inquiry
It would be recommendable to give reasons (e.g. breach of material law, breach of procedural law,..) for the possible appeals mentioned in Article 317/1 and 2. The way those two paragraphs are written now all justified and non-justified grounds may be used for the appeals and they can even be made without a ground.
The phrase “where the person whose actions or decisions are appealed against does not recognize this as necessary” in Article 317/3 has to be replaced by a more detailed description of conditions either for the decision to cease or for the decision not to cease the execution of the action or decision, otherwise the right to a fair trial as given in Article 6 of the ECHR might be endangered.
Concerning Articles 318, 319, 320 and 321 – see comments to Article 317/1 and 2.
Why is the time given to the judge in Article 322/2 to consider appeals different for the cases of refusal to institute a case and for the cases of refusal to dismiss a case? There is no grounded reason for such solution.
Chapter 36 – Criminal Jurisdiction
Without going into a deeper debate, Ukraine might wish to reconsider the idea of having special military courts as mentioned in Article 325/2.
There is no definition of “particularly responsible positions” in Article 326/1/3 in this draft law.
“Certain reasons” in Article 328/1 have to be defined or a reference to appropriate articles of this law has to be made.
What is the reason for the prohibition of disputes over jurisdiction given in Article 331? Despite the prohibition disputes will appear – they will be either positive (more courts claiming that they have the jurisdiction over a case) or negative (more courts claiming that they do not have the jurisdiction over a case). It would be much better to add some articles on solving such disputes.
Chapter 37 – Pre-Trial by a Judge
What is the reason for this part of the Code? Does there have to be an additional safeguard in the form of a special pre-trial procedure at the court? As the case has already gone through so many stages and checks (inquiry, investigation, prosecution) and all possible decisions mentioned in Article 333/4 can be made by a judge at a trial, there is really no need for this additional step in the criminal procedure. It is also obvious that in this way the elements of the common-law system are included into an otherwise very continental procedural system.
Despite the general remark given above some detailed comments to the specific provisions of this chapter have to be given:
It cannot be a task of the judge at this stage of procedure to make a decision on evidential matters as stated in Article 333/4/6. S/he can decide on legal and not on factual questions. At the moment when the case reaches the court the quality and the quantity of evidence could be the subject of decision only in relation to the final judgement. Opening the possibility of sending the case back to investigation again and again gives no legal security to the accused and it might be misused as a cover-up for bad decisions or bad work of the bodies of inquiry, investigators and prosecutors. Somewhere the line has to be drawn.
The time limits in Article 336 are very, very short and it would be a good idea to add the possibility for their (justified) extension.
Three days for the last notification on the trial for a defendant as mentioned in Article 337/1 are not enough to get ready for the trial and this time limit has to be extended in order to meet the requirements of Article 6 of the ECHR.
The defendant has to have the right to see all records of investigation and not only the ones carried out with his/her participation or on his/her petition as stated in Article 338. This is a clear breach of the right to a fair trial as described in Article 6/3-b of the ECHR.
The task given to the public prosecutor in Article 341/1 is an unnecessary delay in the procedure since the decision on the suspension of a case can easily be taken by the judge.
When the procedure has reached the stage of pre-trial, what is the reason for further assistance to investigators and prosecutors by the judge as stated in Articles 341/2 and 343? If mistakes were made, it is clear who (finally the prosecutor) and until when (before sending an accusation to the court) should correct them. To start another round of investigation does not serve any purpose since there were enough possibilities to prepare a proper accusation. The defendant in the described case can never be sure that the investigation against him/her is over since it can start again and again. See also comments to Article 333/4/6.
Chapter 38 – The Main Trial
The solution provided in Article 344/2 is an excellent one.
Article 283 on page 209 is numbered incorrectly – instead of 283 it has to be number 350 and this number will be used in this opinion:
There is no need to mention “moral certainty” in Article 350/1 since this is not a legal category.
Does the description of the situation in Article 350/2 mean that there are two different prosecutors involved in each case: one who referred the case to the court and another one to represent the prosecution in court? If this is the case, it has to be changed. Involving two different prosecutors in a single case at different stages can only harm the prosecution since the second one can never study the case to the extent that the first prosecutor knows it. Mistakes are easily made and no-one feels responsible for the case.
The role of the prosecutor sitting at the trial is to follow the development of the case and to do everything to satisfy the interests of the prosecution. That also means that s/he is the one who should be aware of the fact that during the main trial signs of a crime were established of which the defendant was not accused and not the court as stated in Article 358/1. Based on the same reasoning Article 359/1 is not the best one either. The task of the court is to decide on the basis of facts presented by the prosecution and defence and not to get involved in prosecutorial tasks.
Basically the same thing has to be said about Article 360, with one addition: if the court establishes the fact of a criminal offence against justice, there will be no prosecutor who will allow him/herself not to produce an accusation against the offender since there will already be a resolution of the court that somebody has behaved in the wrong way. So the implementation of Article 6/2 of the ECHR comes under question again. Legally a much clearer solution would be to let the prosecutor follow the trial, to give him/her the power/duty to produce new accusations (at the same trial or at the new one) based on the development of the trial and to let the court judge.
Concerning Article 361 – see comments to Article 244.
A general prohibition on the presence of victims as stated in Article 362/4/1 is not the best solution. There is only one reason why they should not be admitted and that is the case where they are also witnesses. In all other cases they should be admitted to the courtroom.
The fine mentioned in Article 363/1, 4 will have to be defined somewhere in the Code. What is the reason for not introducing the possibility of sanctioning a defender with a fine too (Article 363/3)?
When the trial has started there is no returning of the case back to the prosecutor as mentioned in Article 366! If there were mistakes in the procedure before the trial, the court will take this into consideration when it decides on the judgement. See also comments to Articles 341/2 and 343.
Concerning Article 368 – see comments to Articles 241/2 and 343.
Chapter 39 – Preparatory Part of the Main Trial
The time limit given in Article 376/3 is too short. In a major case no defender will be able to familiarize him/herself with the materials in a three-day term. Such a short term in almost all cases (except the easiest ones) could be considered a breach of Article 6/3 – b of the ECHR.
If the victim is not needed as a witness, does the forcible bringing mentioned in Article 377/1 still have any meaning?
If the trial is postponed nobody may be questioned! If the court has reached the decision to postpone the trial due to the absence of some participants, they would not be in a position to exercise their rights concerning the questioning in a trial where they are not present. Therefore, Article 381 is a very questionable one, especially if the defendant or his/her defender is absent (a clear breach of Article 6 of the ECHR!).
Chapter 40 – Judicial Investigation
The solution provided in Article 387/3 is an excellent one.
Is the defendant allowed to decline an answer to a specific question even if s/he is not using the right not to testify in general as mentioned in Article 388/1? This will have to be mentioned in this Article.
Are witnesses questioned on the basis of Article 391 entitled to refuse to answer a specific question?
What is the reason for the limitation to the “written” form of questions for the expert as stated in Article 397/2? There is no reason why these questions could not be asked orally, too.
Instead of “conclusion” the term “opinion” should be used in Articles 397/6 and 398.
There is no solution on the participants allowed to be present during the examination of material evidence at its location in Article 401.
It is very rare that during the main trial investigative actions as mentioned in Article 405/7 are performed. This has to be an absolute exception and when it happens the presence of trial participants has to be ensured.
Chapter 41 – Court Pleadings. The Last Plea of a Defendant
Since this is not a part of investigation and a matter of proving, in order to be practical and in order to guide the trial participants towards precise and coherent pleadings no replications (as mentioned in Article 408/6) should be allowed.
Chapter 42 – Rendering and Pronouncement of Judgement
The “inner conviction” mentioned in Article 413/3 is not a legal category.
The meaning of the term “corpus delicti” in Articles 415/1/2, 418/6/2, 419/4 is not clear.
What could be the reason to impose punitive measures on the defendant and to decide that s/he does not have to serve them, as mentioned in Article 415/1/7? If this is the case, no punitive measures should be imposed at all.
After the trial has come to an end, no additional investigation, as mentioned in Article 417/1, is allowed and the case has to be decided on the basis of the existing evidence. Otherwise the court procedure will never come to an end.
Concerning Article 418/5 – see comments to Article 182/1.
In the judgement every piece of information should be explained and no prohibitions such as the one in Article 427/5 are allowed – how will the second-instance court decide in case of an appeal if it cannot see whether and how the first-instance court took into deliberation the information going against its decision (on acquittal in this case)?
It is not very wise to make the court decide on the beginning of the sentence as stated in Article 428/1/5 since the court probably does not know everything – for example, the capacities of the Ukrainian prison system.
Judges in the course of a trial represent the court as an institution and the judgement represents Ukraine and one of its courts and there is really no need or reason to allow judges who found themselves in the minority when deciding on a case to write their dissenting opinion, as mentioned in Article 429/2. In this way the best basis for an appeal is given since the participants of the case who are not satisfied with the court decision could just follow the reasoning of this opinion to produce an appeal.
Concerning Article 430/1-3 – see comments to Article 244.
Concerning Article 437 – see comments to Article 417/1.
Chapter 43 – Peculiarities of Proceedings at a Jury Trial
What is the reason to introduce a completely different way of procedure in the form of a jury trial, as mentioned in this Chapter? European continental law systems usually do not use the jury trial. There is also a substantial question: solutions provided in this Chapter mean that in the most difficult cases (life imprisonment) it will not be professional judges with experience and legal knowledge but a group of 7 jurors usually without any legal background, with no experience in the procedure and without very firm ideas on the rules of judicial investigation who will decide? The judgement in these cases will be brought on the basis of feelings, internal convictions and personal opinions of the jurors and not on the basis of the facts established during the case according to the procedural rules. It has to be suggested to Ukrainian authorities to seriously reconsider the idea of introducing this completely foreign element into their legal system.
Despite the general remark given above comments to concrete articles are given as well:
Why should only the accused have the right to ask for a jury trial, as stipulated in Article 440/2; and why give the other accused persons the right to object to exercising this right, as stipulated in Article 441/3? The problem of jurisdiction has to be solved in advance by this Code and no participants of the trial should be entitled to influence the solution provided by the law.
The juror has to have the right to participate in the examination of all evidence without any further conditions as given in Article 446/2/1.
There is absolutely no reason to challenge the jurors in an unreasoned way as mentioned in Article 448/2,3. There has to be a reason given in Articles 91 and 92 to challenge a juror. All the rest is just playing with statistics and giving the impression on a really fair trial.
In Article 449/3/3 it is not clear if the presiding judge has to find out if the jurors are informed or not informed about the circumstances of the given case. Having in mind the fifth paragraph probably the word “not” is a mistake.
Why must there be such a formality as described in Article 449/4: why do the questions have to be in writing? They can be asked orally and noted in the record in order to save some time.
It would be better to fix the number of talesmen (Article 450/1,3) in the Code and not leave it to the discretion of the presiding judge (if s/he is the one deciding?).
Without listing the grounds for a possible proposal of persons mentioned in Article 451/1 (to discharge the jury) in this Code this article might become an excellent opportunity for defendants and other participants to prolong the trial and to misuse their rights. Therefore, the grounds will have to be added.
Is the oath of the jury mentioned in Article 453/1 not mandatory? If it is not, the reasons for having a jury sworn will have to be added. The text of the oath could be made much shorter, simpler and more meaningful.
In Article 454 the possibility exists to withdraw a juror who, according to the presiding judge, has lost his/her impartiality. This is not strong enough – if impartiality is lost, the judge must have an obligation to withdraw such juror. Therefore, instead of the word “may” the words “has to” should be used.
The term “considerable” in Article 455/6 will have to be described – either in this Article or somewhere else. The question cannot be left simply to the judge to decide if the violations were of a considerable nature or not.
Why do the questions in Article 455/7 have to be in writing? This is just a way of spending some time without any reasonable grounds.
There is only one reason to stop the speech of a trial participant – if it is insulting or indecent. Any other case of stopping the speech (as mentioned in Article 456/3) might be considered as a breach of Article 6 of the ECHR.
There is no reason to put additional questions in the questionnaire beside those mentioned in Article 458/2, especially not those mentioned in Article 458/3. Some of these questions cannot be answered by a juror without good legal knowledge.
The system described in Article 459/2 and 3 cannot bring anything positive to the procedure. It is just another unreasonable prolongation of the trial. It would be much better to fix the main questions (i.e. those in article 458/2) for all cases in advance in this Code and no separate questions are needed.
When the jury has started its deliberation there should be no way back to the investigation as described in Article 464. The jury has to decide on the basis of the acquired evidence and if the jurors do not have answers to all questions they will have to decide accordingly. See also comments to Articles 417/1 and 333/4/6.
Possible problems mentioned in Article 465/2 and 3 can appear only because of the complicated system of questions posed to the jury (see comments to Article 458).
Concerning Article 470/1 – see comments to Articles 417/1 and 333/4/6.
Concerning Article 470/3 – see comments to Articles 430, 359, 360 and 244.
Chapter 46 – Peculiarities of Proceedings in Cases on Juvenile Crimes
The terms “state of general development” and “development level” will have to be made more precise otherwise they can be easily understood as having the same meaning.
Questions listed in Article 489 are too detailed – collecting information in this way might take a long time and will certainly add to the juvenile’s stigmatisation. It would be better to let the judge decide which information is relevant for the case.
Maybe it would be a good idea to replace the limit “sixteen” with “eighteen” in Article 495/1 – the general development level of juveniles is very different so there is no real reason to limit the participation of a pedagogue or a psychologist only to cases where the juvenile has not reached the age of sixteen.
Why is the consent of juveniles needed for their placement under supervision of their own parents in Article 497/2?
All cases against juveniles have to be tried in closed sittings and not only those mentioned in Article 499 referring to Article 22/3/4. Public trial can negatively affect juveniles between the ages of 16 and 18, too.
Chapter 47 – Application of Educational Enforcement Measures to …
This whole Chapter is a mistake: if juveniles have not reached the age of 14 they are not able to understand such a reaction to their deeds. The procedure provided in this Chapter can be misunderstood by them and can negatively affect their development to such an extent that they will feel the consequences their whole lives. The same goals as pursued with the activities of the investigators, prosecutors and judges described in this Chapter can be achieved by the district or city juvenile service in a much more proper way. A very strong proposal should be given to delete this Chapter and to develop special procedures within juvenile services. Therefore no comments to the concrete articles are given.
Chapter 48 – Peculiarities of Proceedings in Cases of Irresponsible….
It is not clear if the defender or legal representative of a person handled in accordance with this Chapter has the right to appeal the decision on the appointment of a forensic psychiatric examination of the person after being informed in accordance with Article 514/4.
Chapter 49 – Peculiarities of Proceedings in Cases Containing State-……
Why is a special Chapter needed for that? Usually (in other legal systems) also cases involving the most protected secret information are conducted according to the general rules with some additional restrictions on the public access. This is also the basic idea of Article 6 of the ECHR and no other peculiarities are generally allowed: all participants of the trial have to know everything about the trial they are taking part in but they must not reveal the secrets to other persons. Nevertheless, some comments to concrete articles are given:
If documents mentioned in Article 523/2 do not contain all the information relevant for the case including those protected by state or other secrecy, the right to a fair trial as described in Article 6/3-a,d is breached.
Who are the unauthorised persons mentioned in Article 523/3? If they include the defendant and his/her defender there is a clear breach of Article 6 of the ECHR again.
In Article 523/3 the categories of protected secrecy are very different and putting them under the same regime it will only cause unnecessary problems for the judges of the Ukrainian courts and European Court for Human Rights.
The prohibition preventing the accused from keeping all relevant material with him/her all the time without further conditions and explanations might be considered a breach of Article 6/3-b of the ECHR.
It is suggested that the word “banking” in Article 526 should be replaced by the word “financial” – it is much wider since it includes banking institutions as well as other financial institutions (stock-market,..).
Does the term used in Article 526/1/1 “a natural person who is a subject of entrepreneurial activity for a specific period of time” mean that no financial information on a person who is not a subject of entrepreneurial activity may be acquired? If this is the case, this part will have to be changed in order to include every natural person. Not only entrepreneurs are involved in criminal activities but also natural persons as such.
It would be advisable to add two things in Article 526: the time limit in which the demanding authority has to receive an answer and a sanctioned obligation for the institutions providing the information not to disclose the fact that the information was asked for and/or delivered to the requesting authority.
Chapter 50 – Proceedings on Verification of Judgements, Resolutions and …..
The right given to “any other person” in Article 528 is too broad – the list of categories of persons has to be closed in order not to allow for any misuse of this right.
All time limits given in Article 529 should count starting from the moment when a copy of a document against which the appeal is launched is delivered to the person entitled to appeal.
An appeal as mentioned in Article 530 should also contain motivated grounds for the appeal – it is not enough to link possible reasons for the appeal with the term of “illegality” only since there might be some other reasons to launch the appeal.
According to the text of Article 535/2, does the Court which has rendered the judgement set the date for the hearing of the Appellate Court? This will cause some very serious practical problems.
Chapter 51 – Appeal Hearing
Does the text of Article 537/1/3 really mean that a “normal” appeal against decisions of the appellate court is possible, too? If this is the case, Ukraine will be almost the first in the world to establish the possibility to appeal the court’s decision in such a broad way – the decision brought on the basis of an appeal obviously can be appealed again in a regular procedure.
Why is the prosecutor in Articles 538/2 and 542 in a privileged position? If his/her presence is mandatory at least the presence of the convicted person and his/her defender has to be mandatory as well.
It is too much to expect from the Appellate Court to deal with the problem of additional judicial investigation needed as stated in Article 539/1/1 and 539/2. The court can ask for additional information and it is up to the first-instance court to decide on the way of obtaining this information.
Concerning Article 544 – see comments to Articles 470/1. 417/1 and 333/4/6.
Article 546 does not allow the appellate court to verify anything else but the reasons and motions given in the appeal. Some other legal systems are familiar with the possibility for their appellate courts to go beyond the scope of an appeal by themselves and to verify first-instance decisions concerning so-called “absolute” mistakes, either in the criminal substantial or procedural sense. Very good examples of those mistakes would be violations of the Articles 310 and 315 of this Code by the public prosecutor.
Concerning additional investigation mentioned in Article 547/1/1 – see comments to Article 544.
In Article 549/2 some possible forms of one-sided character or incompleteness of an inquiry or investigation are listed. They set very formal rules, which are really not needed, especially considering a very good substantial description given in the first paragraph.
It would be better to give an additional, more objective explanation of the “obviously unjust” punishment which is mentioned in Article 553.
There is really no need for the appellate court to decide on sending the case back to the public prosecutors for additional investigation as mentioned in Article 555/1,2 and 7 – see comments to Articles 544, 470/1, 417/1 and 333/4/6. If the appellate court decides to send the case back for a new trial, the first-instance court can take this decision easily. It is too much to expect from the appellate court to deal with possible ways of improving the first-instance judgement or resolution (ruling) so much in depth – it would be enough just to point out what were the failures in the prosecutorial or first-instance court procedure and to send the case back for a new trial.
Article 557 refers to Article 183/1/1-4 but there are not 4 paragraphs in Article 183. There are only two.
Chapter 52 – Cassation Proceedings
Is it really necessary to give the possibility to file the cassational appeal to as many persons as mentioned in Article 565, including “any other persons where their interests are affected by a judgement, resolution or ruling” as stated in 565/1/9?
Even in the cassation procedure, as stated in Article 573, it is possible to submit new evidence. That does not happen very often.
Concerning the additional investigation mentioned in Articles 576/1/2, 577/2 – see comments to Articles 555, 544, 470/1, 417/1 and 333/4/6.
The grounds for reversal or alteration of a previous decision in the cassation procedure mentioned in Article 578/1 are basically the same as the grounds for reversal or alteration of the first-instance decision as stated in Article 548/1. This means that this Code, basically, introduces two appellate procedures, one after the other. This does not contribute to rational and efficient proceedings and should be reconsidered seriously. The situation gets even worse in the next chapter.
Chapter 53 – Review of Court Decisions Under the Second Cassation Procedure
In Article 585/1/2 again all grounds listed in Articles 578 and 548 are repeated. This means that an ordinary “appellate” procedure with some additional conditions is possible again. This theory is confirmed by the very wide list of appellants in Article 587/1 and by the form of the petition in Article 587/3.
The solution given in Article 588/3 is not the best one – phrases “no less than three” and “no less than five” do not give a real idea on the number of judges taking part. Nothing is said in this chapter on the possible decisions of the Supreme Court in the cases of second cassation procedure.
Chapter 55 – Execution of a Judgement, Resolution and Ruling of a Court
It is interesting to see in Article 599/1/3 that criminal laws with retroactive effects are possible in Ukraine. Since this is the area of the existing Criminal Code it is hoped that this retroactivity is only limited to the benefit to the convicted persons.
The terms “labour colony” as mentioned in Article 600/1/6 and “correctional labour” as mentioned in Article 612 are gradually disappearing from modern criminal substantial and procedural codes.
The phrase “not particularly grave crime” used in Article 603/1/2 is not precise enough in the light of the fact that the gradation of gravity of crimes is otherwise very well developed in this Code.
It would be wise to add in Article 618/7 that also cases where persons entitled to rehabilitation caused (by their statements, acts,..) the criminal proceedings themselves are exempted from this Article.
It is a bad idea to introduce the duty of the court, public prosecutor and investigator to apologize as stated in Article 619/2. First, they were just performing their duties, and second, apologies will not help the rehabilitation of these persons.
Chapter 56 – Proceedings as to Renewal of Lost or Destroyed Cases
The concept of this Chapter is very strange: how can judgements, rulings or resolutions be lost?
Chapter 57 – Immunities of Diplomatic Missions and Consular Offices of Foreign States
Does the term “personal immunity” mean that the persons referred to in Article 631/1 may not be detained or taken into custody?
Where and how can persons mentioned in Article 633 testify if they give the consent to that? It would be recommendable to add some rules concerning this problem.
Chapter 58 – Legal Assistance in Criminal Cases at Conduct of Certain Procedural Actions
In relation with Article 641/2 it might happen that the foreign authorities will obtain the evidence fully in accordance with their legislation but the legislation itself is not in accordance with the basic international human rights standards. It would be advisable to add a solution on the evidential force of such evidence in this Article.
The substance of Article 647/2 is a very friendly gesture but it will be very difficult to apply it in practice. As a minimum, it would be a good idea to add the requirement of the reciprocity for the demanding state concerning the possibility of Ukraine to ask for the same solution.
It would be a good idea to define the term “undesirable” in Article 655/1.
It is not very clear if the “external economic links” in Article 657 cover the illegal contraband (drugs, weapons, radioactive material,..), too. It is also necessary to add some explanations of the term “certain cases” – which are those cases, under which conditions and how can this measure (controlled supply) be performed?
It would be a good idea to delete the word “international” from the phrase “international terrorist organisation” in Article 661 in order not to cause problems for the practitioners. Even without this word the substance and high value of this Article remain the same.
Chapter 59 – Extradition
One of the grounds for the refusal of extradition given in Article 671/2/4 is also the absence of reciprocity from the requesting state. Usually this ground is combined with another one: the absence of international legal instrument. Only reciprocity is not enough to allow or to refuse extradition, there has to be an international legal instrument mentioned, too. It is strongly recommended to include this criterion in Article 671/2/4.
The grounds for the refusal mentioned in Article 671/3/1,2 have to be mandatory – under no circumstances can extradition be granted if these two grounds exist.
Chapter 61 – Proceedings in Criminal Cases by Way of Criminal Prosecution
Article 692/2 will have to be extended with an additional condition: usually it is not enough that evidence obtained prior to transfer of proceedings was obtained only in accordance with the legislation of the requesting state. It must not be obtained contrary to the basic international human rights standards as set in international legal instruments.
It is obvious that the Ukrainian authorities wanted to draft a new Criminal Procedure Code with as many safeguards against misuses as possible but the result is not the most convincing one – just to mention some of the most serious problems encountered (details are given in parts II – LVII):
– the solutions for the language used in the procedure are not complete,
– the public nature of procedure is not optimal,
– too many bodies of inquiry,
– all decisions at all stages of the procedure are very formal and appealable,
– the position of the defender is not strong enough,
– incomplete regulation of investigative means,
– factual and time-limited possibilities of the defendant concerning challenges of the investigative actions, methods and collected results (evidence),
– very complicated relations among the bodies of inquiry and investigators,
– unclear grounds for detention,
– preventive measures with a character of sanctions,
– very long period of detention,
– mandatory medical treatment of witnesses and victims,
– illegally collected evidence is sometimes admissible,
– the acquittal of the criminal procedure does not rehabilitate the defendant (or suspect or accused) automatically, thus causing unnecessary stages of the procedure,
– the expiry of periods of limitation does not always mean the end of procedure,
– children are not excluded from the procedure and corrective measures in general,
– individual responsibility of the perpetrator can be replaced by collective responsibility of their companies,
– anonymous reports on crime do not represent a strong enough reason to start inquiries,
– some definitions are very general or not given at all,
– some intrusive methods can be conducted without the appropriate court order,
– so-called “special investigative means” (wire-tapping, secret observations,..) are not regulated precisely enough, they can be used for too many criminal offences,
– some time limits for the participants in procedural decisions are extremely tight,
– unlimited possibilities to challenge the factual situation at (literally) every stage of the procedure and to return back to the investigative stage of the proceedings,
– artificial and harmful combination of continental and common-law (pre-trial, jury,..) procedural institutes,
– prosecutorial tasks of the court,
– postponement of the trial does not always entail the postponement of all procedural actions at trial,
– unclear possibilities of the defendants concerning their privilege to non self-incrimination,
– the courts do not have to explain all grounds for their decisions,
– the partiality of jurors is not always the reason for their exclusion,
– proceedings against juveniles are sometimes public,
– too many special types of procedures (for state secrets, for lost trial documentation,.),
– possibilities to collect financial data are too narrow,
– too many open and hidden possibilities for the appeal,
– basic international human rights standards are not included in international legal assistance.
The final result is a very complicated criminal procedure with almost insurmountable obstacles, which can prolong the proceedings but not protect their participants against the breaches of their basic human rights. Especially complicated cases (organised and economic crime), where the strongest defenders are usually involved, will never come to an end. On the other hand, there are too many (possible) breaches of the ECHR. The proposed draft would have only minor chances to be implemented in practice.
With all due respect for the past efforts in the drafting of this Criminal Procedure Code it has to be strongly suggested to the Ukrainian authorities to seriously reconsider the whole idea of the proposed criminal proceedings, to stick to the compatible (either continental or common-law) criminal procedure institutes, to simplify the procedures and to unconditionally respect international legal instruments in the field – in one sentence: to re-draft the existing text or to draft a new one.
Office of the Government of Slovenia for Prevention of Corruption
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