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)
This opinion is concerned with the Draft Criminal Procedure Code of Ukraine adopted in December 2003. It has been prepared at the request of the Council of Europe and examines the compatibility of this draft code (herafter ‘the Code’) with the requirements of the European Convention on Human Rights and its Protocols.
Legislation such as the Code has an important role to play in ensuring that the rule of law in society is maintained as those who break the criminal law should, insofar as is practicable, be brought to justice; if perpetrators of crimes are allowed to escape with impunity the law is diplaced by arbitrariness. However, the law must also govern the process by which justice is done and this requires both clarity in its formulation and due respect for the human rights and fundamental freedoms of all involved. The position of persons suspected and accused of crimes is of particular importance because the authority which a criminal justice system must yield in order to be effective gives plenty of scope for their rights and freedoms to be infringed. Although no system of justice can ever ensure that persons will not be wrongly convicted and punished, there must be scrupulous efforts to ensure that this risk is minimised to the greatest possible extent and that the end of securing ‘justice’ is not used to justify the use of improper means to obtain it. However, important as respect for the rights and freedoms of a suspect or accused is, the formulation of legislation such as the Code must also ensure that the rights and freedoms of those who may be victims of offences and anyone else caught up in the criminal justice process. This makes the formulation of such legislation especially challenging but ensuring a successful outcome is likely to be of inestimable value for the society in which it will operate, although it needs to be borne in mind that ensuring it is properly applied is potentially an even greater challenge.
The opinion examines the chapters of the Code in turn and concludes with an overall assessment of the compatibility of the draft laws with the Convention and its Protocols. However, it does not appraise the other laws to which reference is made in various provisions in the Code and it has thus not been possible to assess whether or not these either solve some of the problems of compatibility which are identified in this opinion or give rise to other such problems.
This is an inordinately long document and, although there appears to be a genuine effort to meet many of the requirements of the Convention, its clarity suffers from the over-complex nature of the provisions and the way in which the latter make much the same point in slightly different ways. The effect is undoubtedly go to be that it will be found to be a difficult document to navigate and this is likely to impede its effective implementation. This is particularly troublesome as there is no doubt that the content does embody an attempt to make a cultural shift in the approach to the handling of criminal proceedings. This shift may not be as substantial as is needed but its fulfilment is dependent upon the guidelines being easy to follow. Moreover the complexity of the structure in the process is such that there must be serious doubts as to whether this Code will make any contribution to reducing the time taken by criminal proceedings and thus help to forestall breaches of the reasonable time requirement in Article 6(1) of the Convention.
Section One: General Provisions
Generally there is nothing wrong with the content of this section but it could be substantially pruned with no loss of value. Some clarifications that may be needed in the formulation of provisions or as to their actual effect in order to avoid breaches of the Convention are noted but if this pruning takes place they can be addressed in the context of other parts of the Code.
The first five articles of this chapter state the object and scope of the Code, as well as the legal hierarchy into which this measure is to be located. Nothing here is problematic but much in the provision dealing with the last of these (Article 1) affords a foretaste of the unnecessary duplication of other provisions or measures that is endemic in the Code. Such duplication is certainly evident in the provision dealing with definitions (Article 6); many of the terms could be deleted – notably those which are the subject of specific chapters or articles and those which undoubtedly figure in the Constitution and other legislation. However, given the methodology of the Code it is also surprising that certain terms – such as ‘accused’, ‘convict’, ‘defendant’, ‘defenders’ and ‘victims’ – do not appear in it, although (with the exception of defendant’) these are defined in later provisions (Articless 45, 47, 54 and 61). Moreover, insofar as a distinction is made in subsequent provisions of the Code between the position of ‘immediate relatives’ and ‘close persons’ (eg, Article 54(2), it would be desirable for it to be clear in the definition that partners (whether hetero- or homosexual) are included in the former as otherwise a failure to respect the right to family life of those concerned under Articles 8 and 14 of the Convention is likely to ensue. It should also be noted that there appear to be two different definitions of ‘pre-trial investigation’ in Article 6 and, unless this is just a translation eror, some recasting of one of the terms is clearly needed.
The content of the provisions setting out the basis for criminal proceedings reiterates the legal hierarchy point, adding only the important point about the inadmissibility of evidence obtained illegally or unconstitutionally, and sets out a series of other points essentially embodying the human rights standards that should govern a code such as the present one. However, while the setting out of them here might serve somed educational purpose, this is something that is undoubtedly already achieved by the constitutional guarantees and it will be much more significant for those to whom the Code applies for its detailed provisions to give efect in a concrete manner to the requirements of the Constitution and the Convention. The present provisions goes beyond a mere statement of principle but this does not mean that they will be more useful as it is more likely that attention will still be paid in practice to the detailed provisions in later chapters than to the terms of the present articles. Moreover, even if they are taken into account, the need to refer to the detail in both them and the later chapters does not really facilitate the task of those charged with giving effect to the criminal justice process and creates uncertainty as to what is the actual source of authority for particular decisions. This is significant because of the qualifications on the broad statements of principle or the failure to give full effect to the latter in the more detailed provisions. Thus the absolute exclusionary rule for illegally obtained evidence in Article 8(4) and the assertion of the adversary principle in Article 20 – which surprisingly is separated from the principle of the establishment of the truth in Article 16 and does not expressly refer to the right to cross-examine witnesses – is is not reflected in the more detailed rules. It is also surprising that the need for judicial control over interferences with rights is not listed as a key principle governing criminal proceedings. Overall it would be more useful to have at this point simply a brief iteration of the key principles governing this process and then leave their elaboration to the chapters in which they are of particular relevance.
It would useful to know whether there is any legislative definition of ‘tortures, cruel or inhuman treatment’ for the purpose of Article 10 and other provisions in the Code as these are clearly matters on which all those involved in the criminal justice process need guidance.
It may only be a matter of translation but it should be noted that it is unclear whether the term ‘other correspondence’ in Article 12(2) is wide enough to cover electronic forms of communication, particularly as ‘e-mail’ is specifically mentioned in Articles 276(2) and 640(2). This is obviously important for the effective protection of privacy given the developing means of modern communication. Moreover the statement of principle in Article 12, if retained, ought to recognise that private data covered by Article 8 of the Convention may be held on someone else’s property, whether in a physical form or electronically.
The privilege against self-incrimination might usefully be included with the presumption of innocence in Article 14 as one of the bases for proceedings.
It should be noted that the heading for Article 21 has nothing to do with its contents.
The personal information referred to in Article 22(4) does not necessarily need to be protected in order to fulfil the requirements of Article 8 of the Convention; there will be a need to make a judgement in individual cases whether there ought to be a restraint on it becoming generally public.
Section Two: Subjects of Criminal Process
The provisions in this section could also benefit from some simplification and possibly relocation to more substantive chapters. There are, however, a considerable number of points where clarification, either in the formulation of the provisions or in the context in which they are to operate, is needed.
The observations in the paragraph 7 are equally applicable to most of the provisions dealing with courts, a public prosecutor, an investigator and chief of investigative division, bodies of inquiry, a suspect, an accused, a defender, a civil plaintiff, a legal representative and a witness since the powers, rights and duties are also set out in subsequent provisions dealing with specific aspects of the criminal justice process. It may be felt necessary to establish the exclusivity of certain powers for the courts – Article 26(2) – in view of the role previously played by prosecutors but this is really unnecessary given that the Code will replace any possible legislative base for this. Moreover some provisions – such as the supervisory role of the Supreme Court and the Court of Appeal (Article 30) – undoubtedly repeat those set out in other legislation or would be more properly found in the legislation actually establishing the bodies concerned. Furthermore, the existence of others such as those on prosecutors and investigators (Articles 31-40) and the rights and obligations of a suspect, an accused, a defender, a victim, a civil plaintiff or respondent, a legal representative and of a person providing bail (Articles 46, 48, 55, 62, 69, 71, 74 and 75) could well create confusion as to the extent of the rights, powers and duties being referred to since there is no qualification to be found in them as compared with other provisions in the Code dealing with them more specifically. Overall it would be more useful for the points that need to be retained to be integrated into the chapters where they are of particular relevance.
It is inappropriate to encourage prosecutors and investigators to make decisions on bases other than the law and publicly accessible instructions so the stipulation in Articles 31(3) and 38(3) that they can act by reference to their ‘sense of justice’ and ‘internal convictions’ ought to be deleted.
There is a need for clarification of the notion of impeding ‘performance of investigative actions’ in the context of restricting access to a defender in Articles 46(1), 48(1) and 55(2); it should not be understood as including advice as to rights, including the right not to make a statement or to testify.
Although the prohibition in Article 48(3) on an accused seeking to persuade a witness, victim suspected persons or other accused persons to refuse to give testimony is generally an appropriate measure to prevent the due administration of justice, there is a need to make it clear that it has no application to those releatives and family members who have the right under Article 76(3) to refuse to give testimony as otherwise there would be an unjustied interference with the right to respect for family life under Article 8 of the Convention.
It would be desirable to clarify exactly who comes within the scope of the provision in Article 54(2) for the use of ‘specialists … with the right to give legal assistance personally or on the instruction of juridical person’ as defenders since it is important for the purpose of the application of Articles 5 and 6 of the Convention that a legal adviser be competent for the purpose and it would be unacceptable if the wide definition precluded a person without funds from having an appropriately lawyer provided at public expense, particularly in the instances specified in Article 57 as ones where a defender’s participation is obligatory. This concern is not applicable to the inclusion within the definition of defenders of immediate relatives, tutors and guardians because of the specific requirement in Article 54(4) that such persons be accompanied by ‘an advocate or other specialist’ but it is perhaps still inappropriate to regard them as actually being defenders.
The restriction in Article 55(6) on a defender’s ability to express his or her views on the merits of the case against the suspect is incompatible with Article 10 of the Convention.
Although many of the reasons given in Article 56 for precluding a person from acting as a defender are understandable given the conflict of interest that exists because of involvement in the case in another capacity, this is not true of the last two specified in the fourth and fifth clauses of paragraph 1 and there is also ground for concern about the formulation of the exclusion in paragraph 4. Certainly neither the bringing of a criminal case against a defender nor the existence of a disability ought to be an automatic disqualification; in the case of the former this would only be appropriate if the proceedings in question were connected with the case for which a defence was to be provided or made such provision impractical and in the case of a disability it should for the suspect or accused to decide whether this made it inappropriate for the person concerned to act on his or her behalf, bearing in mind that there are a good number of lawyers with successful practices notwithstanding that they are afflicted with particular disabilities. On the other hand the concern about the exlusion in paragraph 4 is not to the principle but the manner in which an abuse of rights, a prevention of the process of establishing the truth or the delay in the investigation or trial of a case is defined since the creation of difficulties for an investigator or a prosecutor in making out a case could also been seen as a legitimate facet of affording a defence. This is a matter that thus needs to be clarified, as does the existence of adequate and appropriate professional standards in this field. There is also a need to be more specific about the closeness of a family relationship with others involved in the case that, under Article 56(1) disqualifies a defender from acting and this disqualification should apply to the others rather than the defender if their appointment comes after he or she has already taken on this role.
The circumstances specified in Article 57 as to when the participation of a defender is obligatory is generally appropriate but a specific duty on investigators, prosecutors and judges to establish without delay whether they actually exist would be desirable. Moreover it would be appropriate to add to the enumerated circumstances of a general clause such as ‘whenever it appears the interests of justice so require’ as this would ensure that any decision about the provision of the defender always focuses on the situation of individuals accused or suspected of offences (cf the formulation in Article 91(1) of the grounds for a judge being disqualified from hearing a case).
There is a lack of clarity in the English text of Article 58(6) as to whether the need for agreement to the reimbursement of expenses initially paid by the State for a defender applies to both the convict and persons who undergo a property responsibility or only to the latter; a veto for the former would certainly be surprising.
It is inappropriate for a person conducting an inquiry or investigator to be involved, as is envisaged by Article 58, in the appointment of a defender for a suspect who does not have his or her own one and there should be an independent service for this purpose.
The obligation in Article 60(3) to justify the renunciation of a defender is inappropriate where the cost of employing him or her is not being met by the state.
The definition of a victim in Article 61 introduces for the first time the concept of ‘other socially dangerous act’ and its inclusion in the Code seems strange given that dealing with such acts is not included in the tasks of criminal procedure legislation is not specified in Article 2 of the Code. It is thus questionable whether the provisions (or elements thereof) dealing with this concept – Articles 68, 158(1), 189(4), 193, 297(2), 406 and 503 – should be retained in the Code and there is certainly a need for clarification as to how precisely defined such acts are defined in the Criminal Code or other legislation as a restriction on rights and freedoms such as this must be sufficiently prescribed by law to be acceptable.
It would be helpful to clarify that the purpose of Article 63(3) is only to enable a criminal court to find civil liability in accordance with the ordinary civil law where a prosecution has not led to a conviction and not on some other basis; the latter possibility would give rise to a risk of a breach of the presumption of innocence contrary to Article 6(2) of the Convention. The role envisaged by Article 63(7) for the public prosecutor in pursuing claims on behalf of those unable to act themselves because of their health or for other reasons is undoubtedly welcome but it will be important that it is not handled in such a way that the right of such persons to access to justice under Article 6(1) of the Convention is not thereby prejudiced.
The arrangements provided for in Article 64 to secure property that might be used to provide damages are clearly a control over its use which appears to satify the requirements of Protocol 1, Article 1 because of the provision for judicial control but it will be important to ensure that this procedure only lasts as long as it is actually necessary.
It is not entirely clear why there is a need to introduce in Articles 67 and 68 the concepts of ‘civil plaintiff’ and ‘civil respondent’ since they are generally embraced by the terms ‘victim’ and ‘accused’ or ‘suspect’ respectively.
However, it is evident from Article 379 that a civil respondent may not be the defendant and there is a need, therefore, to clarify both who else might be held responsible civilly for the actions of an accused and whether the scope of this responsibility is sufficiently prescribed in other legislation.
It is not clear why it should be specified in Article 73(1) that the participation of a legal representative is obligatory if the victim ‘does not know the language in which the legal procedure is provide’ without also specifying that the representative is competent to speak the language of the person concerned. Moreover in some cases – particularly where civil claims are part of the proceedings – it might be more appropriate for the representative to be a lawyer.
The list of matters in the first part of Article 76(6) on which a witness is entitled to refuse to testify should be extended to cover matters which might incriminate him or herself (unless such testimony cannot be used against the witness in a prosecution) and matters of confidence protected by Articles 8 and 10 of the Convention. The latter might include the subject and source of communications received by a journalist or parliamentarian but the right of refusal need not be an absolute one in cases where the interests of justice overwhelmingly require disclosure.
The absolute exclusion by Article 76(6) from being a witness of those who ‘directly perform operative-search activity’ could prove problematic in particular cases where there is a need to challenge the evidence or the techniques being used and, insofar as it is maintained, the only way to secure a fair trial might be to exclude the use of the evidence concerned.
The limit imposed by Articles 77(1), 78(1), 79(5) and 80(4) on the disclosure by an expert, a specialist, an attesting witness or an interpreter of information that became known during the discharge of his or her obligations ought to be subject to an entitelent to draw attention to wrongdoing as otherwise there would be an unjustified restriction on his or her freedom of expression under Article 10 of the Convention.
It would be desirable to clarify whether the security measures envisaged by Chapter 14 – which undoubtedly could fulfil obligations arising under Articles 2, 3, 5 and 8 of the Convention – have any bearing on the ability of an accused or suspect to confront a witness and, if so, what the consequences will then be for the use of that witness’s testimony.
Section Three: Procedural Actions, Decisions, Terms and Expenses
There are a number of important clarifications by way of elaboration required for the provisions in this section.
There generally seem to be appropriate provisions made to ensure that records of investigative action are reliable but, while it is understandable that one or more of those involved cannot physically be able to give the signature required, the provision made in Article 105 (1) for this to be done by a ‘stranger’ seems inappropriate without any corresponding duty on such a person to verify the accuracy of what he or she is signing. Furthermore it would be appropriate for the character of ‘the other reasons’ that might be used to justify this procedure as it appears – at least from the English text – that they do not have to be comparable to a physical defect and thus might be the result of some improper conduct.
The deadline in Article 106(3) for the drawing up of the record of a court sitting appears unproblematic in the abstract but it may be that in particular cases a failure to complete this even sooner could have an adverse effect on the exercise of an appeal right and this will need to be borne in mind in practice.
There is a need to clarify whether or not the reference in Article 114(2) to the renewal of ‘procedural terms defaulted because of good reasons’ has any bearing on the legality of the measure concerned between the default and the renewal. It would be inappropriate for this to have any effect as it would undoubtedly entail retrospective annulment of a violation of a Convention right but it is far from clear from the terms of this provision that this is not what is intended by the provision. More specificity as to the meaning of ‘good reasons’ would also be appropriate.
There is nothing objectionable on the imposition of expenses on an acquitted person – as is envisaged by Article 116(2) – but in so doing the impression should not be given that the person is actually considered guilty since otherwise there would be a violation of the presumption of innocence under Article 6(2) of the Convention. Nonetheless it could be an undue burden …
There is a need to clarify whether the provision for reimbursement of a lawyer’s expenses is limited to work done by an advocate or also applies to other legally-qualified persons. This is important as the first paragraph refers only to an ‘advocate’ but in the second mention is made of ‘an advocate-defender or representative’ and a distinction between categories of lawyers acting as defenders is also found in Article 54. There seems to be no reason why lawyers should be treated differently in this regard, particularly given the State appointment of them is meant to fulfil an obligation under Article 6(3)(c) of the Convention. There is a need also to clarify that the expenses recoverable extends not only to fees but also any costs incurred in the preparation of a person’s defence as these are not covered by Article 115 (this is shown as Article 109 in the English text) and what ‘agreement’ entails in Article 117(2).
Section Four: Measures of Procedural Coercion
There appear to be some significant shortcomings in these provisions as regards fulfilling the requirements of the Convention, as well as various additions and clarifications that are necessary to ensure that these requirements are not breached.
The authorisation in Article 118(1) of the detention of a suspect does not employ the term ‘reasonable suspicion’ but only ‘suspicion’. This may not prove problematic if the latter term is interpreted in a manner consistent with the case law of the European Court of Human Rights regarding the former. However, it is not clear that this is intended to be the case as sub-paragraph 5 of paragraph 2 seems to posit detention on reasonable suspicion as a discrete ground from those specified in the preceding four paragraphs. This may, of course, be a matter of translation and there would certainly be no difficulty in compliance with this aspect of Article 5(1)(c) of the Convention if the first four sub-paragraphs were alternative grounds but the fifth sub-paragraph was a condition applicable in every case. Nonetheless further uncertainty is created by the use of ‘suspicion’ again in paragraph 3 and in Article 121(1). Furthermore the range of grounds in total seems to be wider than those envisaged by Article 5(1)(c) – which deals only with the object of bringing a suspected person before the competent legal authority – since issues about identity and residence are really more circumstances that point to a need for the use of deprivation of liberty rather than some other measure so that its use in a given case cannot then be regarded. This distinction is not really recognised in the present provision and it would benefit from some recasting to ensure that it is more in line with the requirements of Article 5(1)(c), as elaborated in the case law of the European Court.
The stipulation in Article 119(1) that this deprivation of liberty may not last more than seventy-two hours before a judicial extension is required may be compatible with Article 5(3) of the Convention in particular cases but this period should not be seen as the norm as the promptness requirement in the latter will in most cases only be satisfied if there is scrutiny by a judge within one or two days. However, the possibility of this deprivation lasting longer than 72 hours is potentially raised by the five-day deadline for consideration of a complaint against detention – running from its receipt – stipulated in Article 125(3). This may, of course, be a remedy that is quite independent of proceedings to obtain release where deprivation of liberty is, or has become, unlawful but further clarification of the position is essential and deprivation lasting longer than 72 hours would certainly be in violation of the Convention in the absence of a derogation under Article 15.
There is a need for the obligation to give reasons to a suspect for his or her detention to be expressly stipulated in Article 119 so as to satisfy the promptness requirement in Article 5(2) of the Convention.
There is a need to clarify the character of the ‘investigatory isolation wards’ specified by Articles 122(2) and 140 as places for detention in custody isolation ward; see further para 51.
The provision in Article 123(1) regarding notification of detention is somewhat miscast in that it starts from the assumption that the investigator will normally do this when in fact it should normally be done by the detained person unless there are good reasons to believe that this would prejudice the investigation and some recasting of this provision is thus needed. Where such reasons do exist the Code should provide for a lawyer to be notified so that he or she could take any action required to protect the rights of the person concerned and there could be no objection to such a lawyer being one whose reliability not to act in a manner that would prejudice an investigation is established so long as his or her independence of the investigating and prosecuting authorities is also clear.
There is a need to clarify whether there is a right to challenge the legality of detention independent of the right to make a complaint under Article 125 so as to comply with the requirements of Article 5(4) of the Convention.
The arrangements for the application of ‘preventive measures’ are generally appropriate except that Articles 129(3) and 148(1) (as well as Articles 195 and 312) seem to envisage that some that, namely, those relating to recognizance not to leave (Art 130), pledge (Art 131), handing over of a juvenile under supervision (Art 132), handing over under supervision of a command of military unit (Art 133), dismissal from office (Art 135) and bail (Art 136) – will not always be imposed by a court and, given the potential impact on the right to liberty and security of the person concerned, this is a usurpation of a function that should properly be exercised by a court in order to be incompatible with Article 5(3) of the Convention, particularly as the person affected appears to have no choice as to whether such measures are imposed by officials rather than a court. It is unlikely that this defect would be remedied by the right of appeal provided in Article 317 against actions and decisions of the chief of a body of inquiry, person conducting inquiry, chief of an investigative decision and investigator on the assumption that it is applicable to decisions relating to preventive measures, which is by no means clear, as the role ultimately played by a court under Article 319 will be very remote in time.
It should be noted that Article 132 on the handing over of a juvenile under supervision envisages this being ‘provided in the order envisaged by Chapter 52 of this Code’ but that chapter deals with cassation proceedings.
The provision in Article 138(3) that detention in custody can be applied ‘in respect of persons who committed especially grave crimes … on the basis of the gravity of these crimes’ is problematic in that the English text lacks any reference to the essential precondition of ‘reasonable suspicion’ and also allows detention for a reason that the European Court of Human Rights does not consider admissible. This provision is clearly incompatible with the Convention and should be deleted.
The stipulation in Article 139 of minimum periods for detention, together with periods by which they can be extended and overall limits on detention is generally appropriate but the periods concerned can readily become the norm and there is a need, therefore, for an indication of an obligation for the investigation to be handled in an expeditious fashion so that release should be ordered if this is not occurring. This is equally true of the power under Article 148(6) of detaining someone at liberty in order to deal with an application for preventive measures. It should be noted that there is no real sense of this in the provisions in Chapter 28 on pre-trial investigation and it is not really encouraged by the automatic extension under Article 237(4) of the period for the latter where detention in custody is prolonged; such detention should really only occur if a continuation of the investigation is truly justified. Moreover there is a need for the exceptional character of detention already noted in the preceding article to be reformulated so that this applies not only to its application but also to its continuation or extension. Furthermore the stipulation in Articles 139(6) and 300(9) as to the timing of disclosure of materials of a criminal case to an accused and his or her defender clearly seems to be working on the assumption that the full periods specified will be used which is clearly inmappropriate. In adition the time allowed to examine the materials is inadequate for the proper preparation of a person’s defence.
There is a need to clarify the character of the ‘investigatory isolation wards’ specified by Article 140 as places for detention in custody as well as the nature of the meeting envisaged by Article 142 with relatives or other persons; although some isolation may be necessary to facilitate an investigation, this should not be needed in all cases of detention or for its total duration. The literal reading of the present two provisions certainly points to one meeting in the course of a period that could last up to three years but even for detention of a shorter duration this limited contact is likelt to be in breach of Article 8 and possibly Article 3 of the Convention. It would be incompatible with Article 6(3)(c) of the Convention if the reference to ‘other persons’ was meant to cover meetings with lawyers as these should not be discretionary or of such limited duration and they should not take place within the hearing of persons conducting the inquiry, investigators and public prosecutors, as Article 142(2) envisages. There should, therefore, be additional provision for meetings with lawyers that is compatible with the Convention.
There is a need to clarify what is supposed to happen to babies and young children where a mother is detained in custody as it is not clear that they fall within the category of ‘juvenile children’ to which Article 143 refers. It is possible that a failure to allow them to remain with the mother in the place of detention could violate both their rights and those of the mother under Articles 3 and 8 of the Convention.
Although detention pending determination of whether preventive measures other than detention might be warranted in a particular case involving someone currently at liberty, this would only be consistent with Article 5(1) of the Convention if there is some ground for believing that an interest recognised as legitimate by the European Court of Human Rights would be threatened and this ought to be made clear in Article 148(6). It is appropriate to require new circumstances before a further application to place such a person in detention pending determination of an application for preventive measures against them but the formulation of Article 148(7) – ‘repeated submitting’ – might be regarded as an encouragement to pursue such action where no real grounds exist and thus engage in arbitrary deprivation of liberty contrary to Article 5(1) of the Convention. It might be better to use some other phrase.
Article 150(3) should expressly provide for the appearance of the accused and his or her defender at any hearings to extend a period of detention in custody and there should also be provision for an adequate opportunity to consult with the defender prior to such a hearing.
There is a need to clarify whether there is any remedy either to challenge the legality of the placing of a person in a medical establishment purportedly pursuant to Article 154 or to appeal against such a decision as – unlike in the case of preventive measures – none is expressly stipulated.
In any event the compulsory confinement of victims and witnesses for forensic medical or psychiatric examination is not an appropriate element of a criminal procedure law and is not only not authorised by Article 5 of the Convention but is also incompatible with Article 3 of the Convention insofar as its object is to facilitate a prosecution. This aspect of Article 154 should thus be deleted.
Section Five: Evidences, Proof and Means of Proof
There are a significant number of matters where clarification is essential
The power to demand evidence in Article 159 needs to be clearly limited to ensure respect for privacy and legal professional privilege; this an instance where integration of the limiting rights found in Chapter 2 would be particularly helpful.
It is inappropriate to encourage courts, judges, judge-investigatorsm prosecutors and persons conducting inquiries to make decisions on bases other than the law and publicly accessible instructions so the stipulation in Article 162(1) that they can act by reference to their ‘internal convictions’ ought to be deleted.
There is a need to clarify the scope of the exclusionary rule in Article 164(2) as it seems – unlike the terms of Article 8(4) – not to be absolute but qualified by the requirement that the violation producing the evidences concerned must have ‘influenced or could have influenced their reliability’. Such a qualified rule might be acceptable where interference with rights under Article 8 of the Convention are concerned but it would not be where the evidence was obtained through a violation of Article 3. Furthermore there is a need to clarify whether the rule in paragraph 3 is concerned with the same or different types of violations as those mentioned in paragraph 2 since ‘violence or other unlawful actions’ are not necessarily the same as ‘constitutional rights and freedoms’ and there is also no reference in it to influence on reliability. In addition it ought to be clarified whether evidence obtained in violation of constitutional rights can be used to support the use of detention or other preventive measure against a suspect as this does not appear to be excluded by Article 164, which deals only with accusations.
There is a need to clarify whether any limits can be imposed on the questioning permitted by Article 167(2) of a victim ‘about his/her relations with a suspect, accused or defendant’, or on the manner in which this is conducted, as this could result in a violation of Articles 3 and 8 of the Convention where intimate matters are concerned.
There is a need to clarify whether a suspect must have had access to legal advice before or contemporaneously with the explanations referred to in Article 168(2) and (3) as, without this, he or she might act in a manner which proves prejudicial to his or her defence. It would be appropriate to specify in Article 168(3) that the refusal of a suspect to give testimony cannot be used against him or her (cf Article 169(3)).
There is a need to make it clearer that victims civil plaintiffs, experts and witnessses can be cross-examined by an accused or defendant.
There is a need for clarification as to whether experts can be required to do tests that are requested on behalf of a defendant as this may be essential for the establishment of exculpatory material.
Section Six: Pre-trial Proceedings
These provisions need some modification to assure compatibility with the Convention but there are also many points on which clarification is required to ensure that there is no problem in achieving such compatibility.
See the following paragraph with regard to Article 182.
There seems to be a potential breach of the presumption of innocence required by Article 6(2) of the Convention in the stipulation in Articles 184 and 185 that the dismissal of a case for the reasons listed – other than that in the third part of the first paragraph if the judgment concerned involved a conviction for the offence with which the person has been charged – as the formulation ‘non-rehabilitating grounds’ points to the guilt of the accused or defendant. In any event there seems to be no obvious need for such a basis for dismissal and it would be better if it were deleted from the Code, along with the related reference to rehabilitating and non-rehabilitating grounds in Articles 182 and 183 and grounds in all these provisions just being grounds for dismissal of a case. This would also have implications for Articles 367(1) and 470(2)
The meaning of the concept ‘active confession’ found in Articles 185 and 190 is in need of clarification, together with the circumstances in which it can be given.
There is a need to have criteria and a process for determining that someone is no longer socially dangerous for the purpose of Article 189(1).
There is a need for clarification of the power in Article 194 to dismiss a case and release a person from criminal responsibility in connection with bail by the personnel of an enterprise, institution or organisation. It may be that limits on the duration of such bail as well as the conditions which may apply while it is applicable are set out in Article 47 of the Criminal Code but it is certainly conceivable that such a measure would give rise to an interference with freedom of movement contrary to Protocol 4, Article 2 and even a violation of the prohibition of slavery and forced labour in Article 4 of the Convention.
The absolute duty in Article 199 to inform the authorities about the commission of a crime or its preparation is at least in need of clarification. It is presumably not intended to contract the privilege against self-incrimination (Article 48) or the immunities enjoyed by some from testifying (Article 76) but this ought to be confirmed. Furthermore there may be circumstances in which a person has good reason for not providing the information – such as fear of harm to him or herself or to other persons – and it ought to be established that this provides a defence to the offence created by this provision. However, a general duty to inform on others, as opposed to a duty not to suppress evidence of an offence, is likely to become a vehicle for intimidation and corruption and and will certainly not encourage the voluntary co-operation with the authorities on which effective policing really relies.
It should be noted that ‘Giving oneself up’ as provided for in Article 203 is not mentioned as a source of information in Article 201(1) and this omission seems inconsistent with the terms of the former provision. It ought to be clarified whether or not it is meant to be a source and, if it is, whether it is a particular form of statement of a citizen as governed by Article 202.
The obligation to provide materials in Article 216(3) does not, but should, include any exemption in respect of documents which would incriminate the person concerned (cf Article 210(2)).
Article 222 seems to be an unnecessary duplication of Article 177.
There will need to be considerable care exercised in the use of the right under Article 223 to pass statements or communications to various entities where there is found to be no grounds for the institution of a criminal case as such a conclusion may be reached because the conduct concerned involves the exercise of a constitutional right and this could still be breached if action is then taken by these entities against the person mentioned in a statement or communication.
There is a need to clarify why pre-trial investigation is not obligatory in the cases listed in Article 228 so as to establish whether or not a lesser level of investigation is being undertaken. This may not be the intention but certainly such an effect would be inconsistent with the obligations under Articles 3 and 13 of the Convention with regard to allegations of torture and inhuman or degrading treatment or punishment.
The limitation on the disclosure of information obtained in the course of inquiry and pre-trial investigation might have the potential to impede the preparation and conduct of a defence and thus breach the requirements of Article 6 of the Convention. The basis in Article 240(1) on which such disclosure can be authorised certainly does not seem consistent with the view of the European Court of Human Rights that decisions about this should be subject to judicial control. Moreover there is a need to clarify what is meant by the absolute prohibition on disclosure of information ‘that disgraces the person, humilates his/her dignity and honour’ since this may be the inevitable characteristic of essential evidence in certain types of cases. There would be no difficulties in this regard if the limitations are concerned only with disclosure to public and clarification on this point is thus needed.
There is a need with regard to Article 241(4) to clarify which measures are actually illegal during the performance of investigative measures – including those which may deceive or mislead someone rather than damage his or her health or bodily integrity – and also whether the prohibition is restricted to the application of measures to the suspect, accused or defendant or covers anyone as the latter possibility can be a technique for obtaining information improperly from a person being questioned.
There is a need to specify in Article 242 that any investigative action authorised should be precisely defined both as to subject-matter and to timing so that rights under Article 8 of the Convention are not breached. It ought also to be clarified that privileged legal documents should not be examined or read in the course of such action. Furthermore the reason for the ‘exceptional’ inspection without a court order envisaged by Article 242(5) should only be one of an urgent nature (cf Article 263(4) and there should be a requirement of a strong basis for apprehending both such urgency and the suspicion of an offence. The concern previously expressed about Article 164(2) (see para 60) regarding the scope of the exclusionary rule governing unlawfully obtained evidence is equally applicable to Article 242(5). It should also be noted that Article 64(4) referred to in Article 242(1) has nothing to do with investigative actions.
Insofar as a suspect or accused is one of the persons in respect of whom the confrontation envisaged by Article 257 is organised, he or she should be legally represented.
There is a need to clarify why there are distinct powers of ‘inspection’ and ‘search’ as their character and impact on the right to respect for private life under Article 8 of the Convention is essentially the same. It is not acceptable that the former is subject to less safeguards than the latter.
The inspection power in Article 263(5) is incompatible with Article 8 of the Convention given the lack of judicial authorisation and the fact that there is adequate provision for urgent cases in Article 263(4). However, the latter provision should also require there should be a strong basis for apprehending both such urgency and the suspicion of an offence. Certainly there is a need for more than a person’s statement about a crime to justify the examination of accommodation or other possession without a court order.
The reference in Article 263(3) to Article 265(5) is presumably meant to be to Article 264(5). Much of this Article duplicates Article 242. Intimate bodily examination which seem to be allowed by Article 266(2) need to be subjected toa requirement of prior judicial authorisation. Such authorisation should also be required for the exhumation of a corpse under Article 268.
There is a need to clarify who can appoint a court expertise; there is nothing express about this in Article 280 which is headed ‘Procedure for appointment of court expertise’ and Article 287 makes provision for the appointment of at least some expertises by investigators. It would seem more appropriate for such an important step to be taken only by a court.
There is a need to clarify what scope there is for a suspect, accused or defendant, with or without the assistance of a defender, to call into question the reliability of a court expertise for the purposes of Article 282; this is probably just a matter of clarifying the relationship with the provisions in Article 285(1) but the order of the provisions creates some uncertainty.
There must be concern about the provision in Article 283 (2) for the use of experts without ‘an appropriate knowledge’.
The procedure set out in Articles 298-300 seems to have the potential to be very time-consuming and it would be helpful to know whether the impact on the overall length of proceedings has been considered. It may well be that the time involved could be reduced if electronic files were used so that simultaneous familiarisation could be possible. In any event the right to disclosure of materials should not be limited to those relating to investigative action performed with the accused’s participation or performed on his or her motion as is envisaged by these provisions (as well as Articles 46 and 48); the right of access should be to all materials unless there are specific reasons (such as security) which are upheld as valid by a judge and even then arrangements may be needed to ensure that the denial of access does not result in the fairness of the proceeedings being prejudiced. It should be noted that paragraphs 4-6 appear to be missing from the English text of Article 300.
More specific criteria than ‘necessary’ ought to be given in Article 317(3) for allowing an appealed decision to be executed.
Section Seven: Jurisdiction, Pre-Trial
There are a number of matters where the requirements of the Convention are not being fulfilled or the likelihood of this occurring is very high but also others where significant clarifications are needed.
It would be desirable to have clarification as to whether the military courts referred to in Articles 325 and 326 satisfy the requirements of Article 6 of the Convention regarding independence and impartiality as elaborated in the case law of the European Court of Human Rights.
Article 331 is unhelpful as jurisdictional problems have to be properly resolved.
The fact that the participation of the accused/defendant in the pre-trial procedure is not mandatory under Article 333(2) is likely to result in contraventions of Article 6(1) of the Convention as there could be determinations of criminal charges – albeit in the form of the dismissal of a case – without him or her being able to answer submissions by the prosecution (cf Article 349 which makes participation of the defendant at the main trial mandatory). In addition, pursuant to Article 335(1), decisions can be taken at this point on the appointment of a defender and this is a matter on which the accused/defendant ought to be in a position to express an opinion, even if it may not be decisive, as he or she may wish to submit that the person proposed is not competent or is in some other respect disqualified for this role in the particular case. However, the appointment of a lawyer at this stage seems to be unduly late for the purpose of ensuring an effective defence and the Code needs to be amended so as to ensure that lawyers will be appointed at the beginning of the interrogation stage in cases where this is required to fulfil the right in Article 6(3)(c) of the Convention.
It seems unlikely that the provision for familiarisation with case materials envisaged by Articles 336 and 338 is really adequate. At the very least it seems strange that there is no provision for extension of the time periods at the reasoned submission of a defender but a longer of opportunity and earlier disclosure would be preferable to ensure that the right to adequate time and facilities for the preparation of one’s defence under Article 6(3)(b) is respected.
There must be concern that the possibility of committing a case for additional investigation envisaged by Article 343 could result in the undue prolongation of proceedings, with a likelihood that the reasonable time requirement in Article 6(1) of the Convention would be breached, and there seems to be missing a clear duty on the judge to consider this matter in deciding whether such a course of action is appropriate.
Section Eight: The Main Trial
There are a number of concerns about compatibility with the requirements of the Convention and various matters on which clarification is at the very least needed.
There is a need to clarify what criteria are meant to govern the exercise of the discretion under Articles 345, 441 and 443 to refuse a defendant’s request for the trial of a particularly grave crime to include a jury.
Article 350 is incorrectly numbered as Article 283. It is inappropriate to encourage prosecutors to make decisions on bases other than the law and publicly accessible instructions so the stipulation in this provision that they are guided by their ‘moral certainty’ ought to be deleted
There would seem to be a need in Article 357(5) for a defendant to be able to seek to extend as much as shorten the postponement following a change of an accusation as the implications for preparation of a defence in some cases could be considerable.
The concern previously noted (see para 95) about the possibility of the undue prolongation of proceedings as a result of committing a case for additional investigation, with a likelihood that the reasonable time requirement in Article 6(1) of the Convention would be breached, is equally applicable to the powerrs in Article 358 regarding a new accusation, Article 366 regarding the return of a case to a public prosecutor where ‘it turns out … that the public prosecutor substantially violated the requirements of Articles 310 and 315 of this Code at drawing up a letter of accusation and referral of the case’, Article 368 regarding recommitment, Article 437 regarding remand of a case for additional investigation from the retiring room and Article 464 regarding renewal of judicial investigation on the request of a jury.
Although action against violators of order in a sitting of a court may need to be taken by the presiding judge to deal with an immediate problem, the requirement of impartiality in Article 6(1) of the Convention will require that sanctions are generally imposed in discrete proceedings with other judges rather than as is envisaged by Article 363.
There must be concern that the possibility of committing a case for additional investigation envisaged by Article 368 could result in the undue prolongation of proceedings, with a likelihood that the reasonable time requirement in Article 6(1) of the Convention would be breached, and there seems to be missing a clear duty on the judge.
It should perhaps be clarified in Article 377(2) that the power of forcible bringing of a victim is restricted to public cases as otherwise it would seem pointless given the provision in the following paragraph that his or her non-appearance is ‘considered as withdrawal of the accusation and entails dismissal of the proceedings in the case’.
It is difficult to see how the questioning envisaged by Article 381 could be compatible with Article 6 of the Convention were this to occur in the absence of the defendant and/or his defender.
There should be a specific provision in Articles 388 and 391 allowing a defendant or witness to refuse to answer particular questions where they are concerned about incriminating themselves.
There is a need to clarify when it is envisaged that the questioning of a defendant will occur; the inference from Articles 386(1) and 388 is that it might be near the outset of the trial which does not seem consistent with an adversarial procedure.
There is a need to clarify whether the duty imposed by Article 391(7) on a questioned witness to remain in the courtroom applies only to the day(s) on which he or she gives testimony or could be extended to cover some or all of the remainder of the trial. The latter may not be unjustified where there is a concern about possible collusion between witnesses but the grounds for any continuation of the duty ought to be spelt out so that there is no undue interference with the witness’s liberty or freedom of movement.
The provision in Article 393(5) for the questioning of a juvenile witness in the absence of the defendant is potentially problematic with regard to Article 6 of the Convention, notwithstanding the subsequent possibility of putting questions to the latter as the familiarisation by the presiding judge with the juvenile’s testimony may not be sufficient for the defendant to formulate questions, particularly if demeanour during the giving of testimony is considered significant. However, this difficulty might not be significant if the defendant’s defender is entitled to remain present during the giving of testimony by the juvenile and is able to brief the defendant on all matters that might be relevant for any questions to be put to him or her. The Code is silent on this point and clarification of the position of the defender in this regard is needed. At the same time there is a need to clarify what, if any control, the court may exercise over a line of questioning that might improperly distress the juvenile witness. Similar clarification is needed in Article 395 as to the manner of questioning of a victim.
There is a need to clarify whether a decision by the presiding judge under Article 397(4) that certain questions are not relevant or do not fall within the competence of an expert is open to challenge.
It is inappropriate to encourage judges to make decisions on bases other than the law and so the stipulation in Article 413(3) that they can evaluate evidence by reference to their ‘inner conviction’ ought to be deleted.
There is a need to clarify how the conclusion of a medical institution referred to in Article 415(4) as essential for an order for compulsory treatment under Article 415(1) is to be established and in paricular whether or not the defendant and/or a defender is able to participate in the proceedings concerned.
There is a need to clarify whether it is possible once a claim has been dismissed under Article 419(3) and (4) for the victim then to bring a claim in the civil courts against the defendant who was acquitted if the impugned conduct of the conduct could still be characterised as a civil wrong even though it was not an offence. In the absence of such a possibility there would be a denial of the right of access of the victim to court under Article 6 of the Convention as the court would not have addressed the purely civil aspect of his or her claim.
The provision for a dissenting judgment in Article 429(2) has the potential for violating the presumption of innocence contrary to Article 6(2).
Much of Article 430 seems to duplicate the provisions in Article 361.
There is a need to clarify whether there is any discretion under Article 443(4) to refuse a petition for jury trial where the requirements of Article 440 are satisfied and, if so, criteria for its exercise should then be specified.
It is not clear why Article 443(5) needs to make provision for the exclusion of evidence obtained in violation of law or inadmissible on other grounds as this already seems to be covered by Articles 164(2) and 242(5).
Neither Article 334 nor Article 341 seem to be the provisions intended to be referred to in paragraphs 5 and 6 respectively of Article 443.
There is a need to clarify what criteria are meant to govern the determination under Article 443(5) of the number of persons to be summoned pursuant to a resolution on the appointment of a trial by jury. There is also a need to clarify the procedure for selecting the persons actually to be summoned under Article 444 to perform the duties of a juror.
There is a need to clarify what are valid reasons under Article 444(3) and (4) for not performing the duties of a juror. There seems to be no reason why the imposition of a penalty for non-performance of juror’s duties should be the responsibility of the presiding judge and there is a risk that the role of the latter will result in a breach of the impartiality requirement in Article 6(1) of the Convention. Moreover the absence of any right of appeal against the imposition of a penalty for non-performance of these duties precludes the breach of that requirement being cured and is also contrary to Protocol 7, Article 2. These concerns are equally applicable to the penalties that can be imposed under Article 446(4) for violation of a juror’s duties.
There is a need for clarity as to the intention in stipulating in Article 447(1) that the adversarial procedure will be followed in trial by jury since this is supposed to the basis for all proceedings according to Article 20 but, as in other trials, there is still a pre-eminent role for judicial investigation in jury trials.
It should be made clear in Article 454 that the presiding judge has a duty to investigate allegations of absence or loss of impartiality on the part of jurors and to remove them (and if necessary empanel a fresh jury) where this is established.
There is a need to clarify why under Article 455(6) the evidence to be excluded in a jury case is that ‘obtained with considerable violations of law’; the concern previously expressed about Articles 164(2) and 242(5) (see paras 60 and 79) regarding the scope of the exclusionary rule certainly seems to be equally applicable here.
The stipulation in Article 459(9) as to evidence not to be taken into account in jury cases seems equally applicable to non-jury cases as it is likely to preclude any undue prejudice against the defendant arising.
It is not clear why a presiding judge who forms the conclusion that ‘there are sufficient grounds in the case to render a verdict of not guilty because the occurrence of the crime had not been proven’ should be required, pursuant to Article 468(4) to wait for a jury to render a verdict of guilty before discharging the jury or why in such a case there should be a new trial. It is also not clear why there should be a need to distinguish an acquittal from a not guilty verdict.
There is a need to clarify how, pursuant to Article 475, the voluntariness of a motion made by a defendant for rendering a judgment without conducting a judicial investigation is to be assessed.
There is provision in Article 476(3) to require the participation of a defender but it is not clear that there is provision affording sufficient protection from pressure or an adequate opportunity to discuss the situation before making the motion and further clarification is at least required.
Section Nine: Special Orders of Proceedings
There are a number of provisions that pose problems for compliance with the requirements of the Convention and others where clarification is necessary to ensure that these do not arise.
There is a need to clarify whether the choice of a preventive measure under Article 481 for an acused known to be outside the territory of Ukraine gives rise to any responsibility under Article 129(4) for non-compliance so long as he or she remains outside it.
There is a need to clarify the circumstances in which the participation of a legal representative at a trial of a juvenile would not be necessary for the purposes of Article 491(2). In addition there is a need to clarify how a legal representative’s participation could be regarded as harmful to the interests of a juvenile so that another might be appointed.
There is a need for Article 496 to stipulate much shorter limits than are found in Article 139 where a juvenile is detained as a preventive measure and there is a need also to ensure that the conditions of detention are appropriate, in particular avoiding their detention with adults and ensuring access to education.
The absence of a closed trial for juveniles in all cases – as opposed to the limited instances envisaged by Article 499 – is likely to entail a breach of Article 3 of the Convention.
The provision in Article 500 for the temporary removal of a juvenile defendant from the courtroom ‘for the period of examination of the facts which may negatively affect him/her is potentially problematic with regard to Article 6 of the Convention, notwithstanding the subsequent possibility of putting questions to the latter as the familiarisation by the presiding judge with the testimony of the person concerned may not be sufficient for the defendant to formulate questions, particularly if demeanour during the giving of testimony is considered significant. However, this difficulty might not be significant if the defendant’s defender is entitled to remain present during the giving of testimony by the juvenile and is able to brief the defendant on all matters that might be relevant for any questions to be put to him or her. The Code is silent on this point and clarification of the position of the defender in this regard is needed.
The reference in Article 502(2) to Article 306 should presumably be to Article 307.
The use of educational enforcement measures, pursuant to Article 503, in respect of acts that appear to be designated as ‘socially dangerous’ rather than crimes where committed by persons under the age of criminal responsibility but at least eleven years old could mean that the process should not be seen as still entailing the determination of a criminal charge for the purpose of Article 6 of the Convention. However, this would also mean that any deprivation of liberty in respect of such persons could not be justified by reference to Article 5(1)(c) of the Convention as no process in respect of a suspected offence is involved but Article 5(1)(d) could be invoked given the ultimate objective of educational supervision. Nonetheless the procedure stipulated in Article 504 seems to be essentially that in respect of an offence and there is certainly a risk that, given the age of those involved, it would be regarded as entailing inhuman and degrading treatment contrary to Article 3 of the Convention on this account. Furthermore, given that the placement of a juvenile in a reception centre during the pre-trial investigation is not, according to Article 504(3) appealable, there is a need to clarify how this deprivation of liberty can be challenged so as to satisfy the requirements of Article 5(4) of the Convention.
There is a need to clarify what is the basis for early release from an educational enforcement measure under Article 507 so as to avoid the risk that continued deprivation of liberty under this chapter is not arbitrary and thus contrary to Article 5(1) of the Convention. The risk of this occurring is, however, reduced by the requirement of a judicial resolution as a precondition for release.
The use of medical enforcement measures, pursuant to Article 508, in respect of acts that appear to be designated as ‘socially dangerous’ rather than crimes where committed by persons in the state of irresponsibility or limited responsibility could mean that the process should not be seen as still entailing the determination of a criminal charge for the purpose of Article 6 of the Convention. However, this would also mean that any deprivation of liberty in respect of such persons could not be justified by reference to Article 5(1)(c) of the Convention as no process in respect of a suspected offence is involved but Article 5(1)(e) could be invoked given the ultimate objective of detaining persons of unsound mind. There is a need to clarify how the preventive protection measures imposed under Article 513 may be challenged so as to satisfy the requirements of Article 5(4) of the Convention with regard to the deprivations of liberty that these can entail; it is not evident that a resolution of a judge-investigator for this purpose would be treated as a resolution of a court of first instance for the purpose of an appeal pursuant to Article 527.
The breadth of the restrictions on disclosure of state information may give rise to issues affecting the exercise of Article 10 of the Convention but no particular issues arise from the arrangements in Articles 523-525 for maintaining the secrecy of what can legitimately be kept secret. However, although maintaining secrecy of matters relating to adoption and medical data may be required to secure the right guaranteed by Article 8 of the Convention, the absolute character of the prohibition on disclosure is probably overbroad and there is a need to clarify whether there is other legislation defining the circumstances in which disclosure might be possible. In any event any restriction on the disclosure of material covered by these Articles insofar as it applies to a suspect, accused or defendant and his or her defender is likely to have serious implications for the fairness of a trial if it is still admissible in evidence. Where the restriction can be justified on compelling grounds before a judge, the material might still be admissible if other arrangements are in place to ensure that it is properly tested – perhaps by an independent lawyer – by reference to the interests of the suspect, accused or defendant.
Section Ten: Proceedings on Verification of Judgments, Resolutions and Rulings of Court
A number of significant clarifications are needed.
Although the duty of the court of first instance under Article 535(5) to ensure the participation of a defender in an appeal hearing where this is necessary is appropriate, there is a need to clarify the arrangements for access to a defender prior to both the lodging and hearing of appeal by a convict kept in custody.
There is a need to clarify the circumstances for the purposes of Article 542 that are likely to be seen as ‘necessary’ for a convict to be present at an appeal hearing as such attendance is likely to be required under Article 6 of the Convention where he or she may wish to challenge evidential matters or a prison sentence is involved. It should be noted that, notwithstanding the terms of Article 542(3), Article 532(2) does not provide for a petition by a convict regarding attendance at an appeal. It is doubtful whether the provision in Article 542(5) for a mandatory defender in cases where an appeal raises the question of the worsening of a convicted person’s situation is sufficient to satisfy the requirements of Article6(3)(c); the need for a defender should be determined by the interests of justice and this may be needed even when the maintenance of a prison sentence is involved .
There is a need to clarify whether the provision in Articles 590-595 for review of valid court decisions on the basis of newly-discovered circumstances allows for the reopening of proceedings in respect of which the European Court of Human Rights has found a violation of the Convention. This possibility does not seem evident from the terms of Article 590(1) but, in that event that it is not afforded, it is a lacuna which needs to be filled.
Section Eleven: Execution of a Judgment, Resolution and Ruling of a Court
Several clarifications or modifications are needed to ensure compliance with the requirements of the Convention.
There is a need to clarify what regime is applicable to a convict before a judgment becomes final as Article 596(4) only stipulates that there cannot be a transfer to an institution of confinement in another locality.
There is a need for a convict in proceedings under Article 607 for the application of compulsory treatment to have the benefit of legal representation as a safeguard against the risk of such treatment constituting inhuman or degrading treatment contrary to Article 3 of the Convention in the particular circumstances of his or her case.
There is a need for a convict in proceedings under Articles 610 and 611 for the reversal of release from serving a sentence on probation and the reversal of release of pregnant women and women having children under three years from serving a sentence to be legally represented. In the latter case there is also a need for clarification as to why the convict should only be a participant in the proceedings ‘as a rule’ and not in all cases since the impact on his or her interests is such that his or her presence would be required to ensure a fair hearing.
There is a need to clarify what impact a transfer into an investigatory isolation ward under Article 613 has on the contact that the person concerned with his or her lawyer and family and friends, since this will determine the compatibility of such treatment with Article 3 of the Convention. There is also a need to clarify what scope there is to challenge a transfer before a court.
The duty imposed by Article 619 on the mass media to publicise a person’s rehabilitation is unlikely to be seen as an unacceptable restriction on freedom of expression under Article 10 of the Convention but there needs to be more clarity as to how this duty is to be regarded as having been satisfactorily fulfilled.
Section Twelve: Proceedings in Criminal Cases concerned with International Relations
There is a need for a number of additions and clarifications to these provisions in order to prevent violations of the Convention.
Chapter 57- 58
There is a need to clarify whether a witness, victim or expert being questioned pursuant to Articles 638 and 644 has the right to the assistance of a lawyer and, if so, whether this is at the state’s expense where the person cannot afford to pay for one.
Any search, seizure and arrest of property under Article 642 should be governed by the safeguards in the Code, as amended by the points made above, and there is a need for confirmation that this would be the effect of Article 646.
There is a need to clarify whether the grounds for refusal of extradition in Article 671(3) are truly discretionary as they are ones for which refusal should be mandatory. Furthermore the establishment of a clear risk of the person being subjected to torture or inhuman and degrading treatment or punishment and the establishment that any trial would be in clear breach of the requirements of Article 6 of the Convention should be added to these grounds. There is a need to clarify whether a person taken into custody under Article 672 as a preventive measure in an extradition case is able to challenge such a deprivation of liberty before a court. The provision for the use of temporary extradition in Article 677 seems incapable of providing adequate guarantees against abuse and should be deleted.
The establishment of a clear risk of the person being subjected to torture or inhuman and degrading treatment or punishment should be added to the grounds in Articles 680 and 682 for refusing to transfer a convict to another state so that a potential violation of Article 3 of the Convention can be avoided. Provision should be included in Article 681 for a convict who might be transferred to another state to receive legal advice before taking any decision to give his or her consent.
It is not clear why special provision is needed for taking criminal proceedings at the request of foreign states unless the intention is to authorise proceedings in respect of matters that are not already offences under the law of Ukraine. In the event that the latter is the case there will then be a need to identify how the offences concerned can be regarded as sufficiently prescribed by law for the purpose of avoiding the prohibition on retrospective criminal liability in Article 7 of the Convention. Moreover it is inconceivable that the forty-day period of detention in custody pecified in Article 691 could be regarded as compatible with Article 5(3) of the Convention. This should be replaced by the 72 hour period used for other proceedings in Ukraine and any prolongation should be a matter for judicial authorisation insofar as a case can be made for such a preventive measure under the provisions of the Code, subject to the concerns previously mentioned (see paras 41-54) being appropriately addressed. The provisions in Articles 693-695 for the transfer of proceedings to a foreign state should be made subject to it being satisfactorily established that rights under the Convention and the Code will be respected in them. Chapter 62 The authorisation for the transit conveyance of persons through the territory of Ukraine in Articles 696 and 697 should be made subject to it being satisfactorily established that rights under the Convention and the Code will be respected in them.
There is a need for the location of the responsibility under Article 699 for notifying a local consular office or diplomatic mission about the detention or taking into custody of a foreign state citizen. It would also be more appropriate for this provision to be placed in the chapters concerned with such deprivation of liberty so that it is not overlooked.
No summary has been included in the opinion as to the changes in, or clarifications about, the Code’s provisions that would be necessary in order to ensure compliance with the requirements of the Convention as these are so extensive as to make such an exercise rather pointless. It may well be that some clarifications as to the intended effect of some of the provisions will reveal that no problem exists but in many other instances it seems likely that whatever the intention problems can only be avoided if the text has a clarifying elaboration. In other instances provisions either need to be deleted or added to in order to achieve compliance. This will no doubt be a substantial task. However, although there are suggestions for additions to the text, it is also of fundamental importance for the usability of the resulting Code that it becomes a shorter and simpler document. Much can be achieved through the deletion of unnecessarily repetitive text and the use of more effective cross-referencing between provisions in different parts but the overall organisation needs to be much clearer and leaner. It is important to demonstrate that human rights requirements are fully reflected in the drafting of a criminal procedure code but the fulfilment of these requirement will only be really meaningful if the document concerned embodies a text that is coherent to all who must use it on a daily basis. The present draft Code is still some way off achieving that goal but nonetheless, given the work that has already been done, this is certainly something that is attainable.
Mr. Jeremy McBride,
Director of Human Rights Law and Practice Programme, Univestity of Birmingham (United Kingdom)
 As translated into English; DG1/DOC/CPC (2004) 01.
 Ukraine ratified the Convention and its First and Seventh Protocols (the ones most relevant to the matters under consideration) on 11 September 1997.
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