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)
Faculty of Law, University of Augsburg
This report offers comments on the Draft Criminal Procedure Code of Ukraine. The report is based on the English translation of the Draft contained in the following document: Directorate General – Legal Affairs: Draft Criminal Procedure Code of Ukraine (December 2003), doc number DGI / DOC / CPC / (2004) 01, Strasbourg, 5 January 2004.
Comments on the English translation of the Ukraine Draft have to face three language problems. First, as is well-known, a legal text that has been translated into another language can never be considered an exact mirror of the original. Second, a translation from Russian into English makes this problem more serious because Ukraine law is part of the continental European Civil Law system while English is the language of a different world of legal thinking. The English language relies on the terminology and conceptualization of the Anglo-American Common Law. Third, the person who translated the Ukraine Draft was obviously not aware of the fundamental difference between Civil Law and Common Law. The translation of the Ukraine Draft tries to transplant Civil Law terminology into the English language. As a consequence, the English text is often imprecise and vague and, thus, difficult to understand.
The following comments will try to pay careful attention to these problems. It cannot be excluded, however, that there will be misunderstandings and that comments will be based on such misunderstandings. Often, it can only be guessed what the English text tries to say. In a number of cases the English text cannot be understood at all. The translation of the following Articles may be taken as examples: Art. 158, (4); art. 171 (1); art. 186 (3); art. 228 (6); art. 263 (5).
The comments will be restricted to those provisions and parts of the Draft that seem to deserve criticism. The comments will not only be concerned with the question whether the Draft is in line with the provisions of the European Convention on Human Rights and Fundamental Freedoms. They will also address the equally important question to what extent the Draft comes up to the standards that are ordinarily followed by modern European criminal procedure codes.
Recommendations to change provisions of the Ukraine Draft will be made where reform seems to be required by the European Convention or in the light of internationally accepted standards of criminal justice administration. In other cases where change seems to be less urgent suggestions will be made in a more careful way.
The comments will not simply be concerned with the individual provisions of the Draft. Wherever appropriate, comments will try to take a broader perspective and deal with the principles and concepts upon which the Draft is based, with the systematic organization of the Draft, with the role the Draft allocates to the participants of criminal justice administration, and with the question how the new law will work in practice.
II. General Comments on the Ukraine Draft
1. System and Organisation of the Draft
The Ukraine Draft mainly follows the system of the criminal procedure codes of other European countries. There are, however, three questions that must be asked.
1) Section Four of the Draft deals with “Measures of Procedural Coercion” (Articles 118 – 156). It covers “detention of a suspect”, “preventive measures”, and “other measures of procedural compulsion”. Provisions on “inspection, examination, exhumation, seizure, search, arrest of correspondence, and taking information from communication channels” (Articles 263 – 278) are listed in Section Six of the Draft that contains the provisions on “Pre-Trial Proceedings” (Articles 177 – 324). This arrangement seems to rely on the traditional idea that seizures, searches and the other measures covered by Articles 263 – 278 are, in the first place, to be considered means of collecting evidence. From a modern point of view, seizures, searches and the other measures listed in Articles 263 – 278 may, however, involve invasions of individual rights in the same way as detention and the other “measures of procedural coercion”. It is not the physical “procedural coercion” but rather the invasion of individual rights that qualifies detention on the one hand and seizures and searches on the other. Therefore, it must be asked whether the provisions on seizures, searches and the other measures listed in Articles 263 – 278 should not be placed in the section containing the provisions on “measures of procedural coercion”. After all, seizures and searches my also involve acts of physical coercion. This section should be given the title “measures involving invasions of individual rights”. Such re-arrangement would make it better visible to the law enforcement authorities that seizures and searches are in the same way as detention sensitive areas of law where special attention must be paid to the protection of individual rights.
2) Articles 276 – 278 authorize, in addition to the “arrest of correspondence”, the “use of technical means for obtaining information”. The Articles do not define what the “technical means” are. It can only be guessed that the technical means refer to wiretapping and, perhaps, also eavesdropping. In view of this it is suggested that the Draft use clear language to define what is meant by “technical means for obtaining information” because these investigation methods involve serious invasions of individual rights. To protect individual rights in an effective way, the Draft should also define in greater detail under what conditions such technical means may be used.
The Draft is silent as to other modern investigation methods, such as search with the help of computer scanning, the use of computer assisted tracking devices and other computer based techniques. The Draft does also not address the problem of investigation with the help of police informers and undercover agents. Perhaps, these modern investigation methods are regulated by special legislation. If this is not the case, provisions on these investigation methods should be included in the Draft. It can be expected that in Ukraine practice law enforcement authorities resort to such modern investigation methods. As long as police officers are not restricted by legal provisions they are free to do whatever they consider effective. Protection of individual rights must be taken serious whenever the law enforcement authorites make use of these modern investigation methods.
3) A considerable number of the provisions of the Draft are repetitious. By repeating what has already been said in another provision the Draft obviously tries to make it very clear what procedural steps can be taken. To achieve this goal, the Draft pays much attention to procedural and technical detail. On the other hand, it must be pointed out that provisions on the protection of individual rights are often rather general or totally lacking.
Repetitious provisions are so numerous that they cannot all be listed here. Only a few typical examples shall be given. Article 46 provides for a detailed list of “rights and obligations of the suspect”, in Article 48 there is a mainly identical list of the “rights and obligations of the accused”. — Provisions on the obligations of the expert (Article 77 (2)) and the specialist (Article 78 (3)) are mainly overlapping. — Articles 91, 95, 96, and 97 dealing with the challenge the judge, lay judge, juror, judge-investigator, person conducting an inquiry, and investigator are to some extent repetitious. (Article 98 on the challenge of the interpreter and other personnel demonstrates that the Draft knows how to take a more practical approach because it simply refers to Article 91 on the challenge of the judge.) – Article 124 provides for measures to take care of children and property of a detained person, Articles 143, 144 address the same problem as to a person who is taken into custody. – Articles 166 (testimony of witness), 167 (testimony of victim), 168 (testimony of suspect), and 169 (testimony of accused, defendant, convict and acquitted person) are in several ways overlapping. – The same is true as to Article 249 (questioning of suspect) and Article 250 (questioning of accused). – Mainly repetitious provisions on the interrogation of the suspect and accused can be found in Articles 46 and 48, 168 and 169, 249 and 250.
The legislative technique of pedantic repetitions and of relying on numerous repetitions would make it difficult for the people who will eventually have to work with the new code in the day-to-day practice. They will always have to go back to the code in order to find out whether there will not be a special rule in one of the many detailed provisions. European legislation since the time of the Napoleonic codes has taken a different, more systematic approach. To make the law less bulky and more easily intelligible, legislatures have relied on drafting general rather than specific provisions. General provisions state the principles to be followed in all cases as long as no exceptions apply. If exceptions must be made they are taken care of by a few specific provisions.
A long list of definitions can be found in Article 6. The Draft seems to follow the tradition of Socialist Law which was based on the assumption that definitions provide for predictability in law enforcement. It seems questionable, however, whether such assumption is always well founded.
In the Draft some of the definitions, such as the definition of “minor”, “juvenile”, “immediate relative”, and “night-time” are necessary because a line must be drawn between what is included and what is excluded. A great number of definitions, such as the definition of “inquiry”, “pre-trial proceedings”, “pre-trial investigation”, and “resolution” must be considered irrelevant. On the one hand, they try to define what is explained in much more detaile in later parts of the Draft. On the other hand, the definitions try to explain what seems to be self-understood.
As a consequence, it is suggested to include in the list of definitions only those that are necessary and that state exactly what a notion or a word means.
3. Articles Providing for the Obvious
There are several Articles in the Draft that seem to provide for the obvious. For example, according to Article 37 (1) (1) investigators must “observe requirements of the Constitution and laws of Ukraine” when conducting investigations. There can be no doubt that investigators have to follow the law whatever they do. In view of this it remains obscure why it is nevertheless considered necessary to include the general duty to follow the law in the Draft. It is even more difficult to understand if one keeps in mind that the Draft does not refer to such general duty in the Chapter on the officers of inquiry (Articles 41 et seq.).
Also, in Article 40 on the “powers of the chief of the investigation division” a number of provisions can be found that do not seem to be necessary. It is obvious that the chief investigator organizes and controls the activities of the subordinates. —
Article 100 provides: “All procedural actions are performed in accordance with the rules determined by this Code”. It can be argued that nothing would be missing if this Article were not in the Draft.
There are more provisions of the kind in the Draft. Here, only a few examples have been cited. It must be asked whether a code should be burdened with provisions that state the obvious. Modern legislative technique ordinarily follows the rule to include in a code only what is really necessary.
4. General Principles and Protection of Individual Rights
Articles 7 – 25 of the Draft list a number of principles and provisions on the protection of individual rights that are to serve as the “Basis of Criminal Proceedings”. This list is placed at the beginning of the Draft to emphasize that it governs all stages of Ukraine criminal justice administration.
There are many European criminal procedure codes that do not have a comparable list of principles and individual rights. Such list does not seem to be necessary as long as the individual provisions of the code follow the generally accepted principles and also protect individual rights. If a summary of the main principles and individual rights is placed at the beginning of a code it must be expected, however, that such summary is complete. Otherwise it could easily be argued that principles and individual rights not included in the summary are considered to be of secondary importance.
In view of this it must be criticized that the following individual rights are missing in Articles 7 – 25 of the Draft even though they are explicitly protected by the European Convention. According to Article 5 (2) of the European Convention an arrested or detained person must be informed of the reasons for the arrest and of the charge. Article 5 (3) and (4) of the European Convention require that the arrested or detained person be brought promptly before a judge and have the question whether the detention is lawful speedily decided. These rights are not mentioned in Articles 7 – 25 of the Draft. Some – but not all – of these rights can be found in Articles 118 et seq. that deal with detention and detention in custody, but that does not seem to be sufficient in view of the general purpose of Articles 7 – 25. Also, the accused’s right “to examine or have examined witnesses against him” (Article 6 (3) (d) European Convention) cannot be found in Articles 7 – 25 of the Draft. Article 391 (3) (1) of the Draft provides that the defendant at the trial has the right to question witnesses. Article 392 (1) repeats that the defendant enjoys this right. The two Articles of the Draft allow the defendant to question witnesses who are present at the trial. This is, however, not the same as the right provided in Article 6 (3) (d) of the Convention. The Convention guarantees the defendant’s right to have witness who testify against him or her brought to the trial, so the defendant has a chance to question the witness.
According to Article 12 (1) (1) of the Draft the invasion of the residence and property requires a “grounded court ruling”, i.e. a judicial warrant. The second sentence of this provision seems to authorize investigation agencies in a number of exigent circumstances to invade the residence and property without first obtaining a judicial warrant. Experience teaches that in day-to-day practice the exception tends to become the general rule because investigating authorities often feel free to argue that there are exigent circumstances. Thus, the protection by the judge provided for by Article 12 (1) (1) might become non-existent. To avoid this danger, Article 242 (5) of the Draft requires that each invasion of privacy initiated by an investigating authroity must be approved by a judge within 24 hours. It is suggested to make this requirement more visible by referring to it in Article 12 (1).
5. Exclusion of Illegally Received Evidence
According to Article 62 (2) of the Ukraine Constitution an “accusation shall not be based on illegally obtained evidence…” Article 8 (4) of the Draft repeats this principle by stating: “Evidences (sic!) obtained… with violation of the Constitution of the Ukraine and criminal procedure law are inadmissible.” The reason for listing this wholesale exclusion of illegally received evidence in the chapter of the Draft dealing with the “Basis of Criminal Proceedings” is obviously to demonstrate that human dignity and the fairness of criminal justice administration should be protected in an effective way.
The general rule of Article 8 (4) is, however, severely restricted by Article 164. As this Article is part of the Chapter on “Subject, Process of Proof”, it must be considered a general provision on the admissibility of evidence. Paragraph 2 of Article 164 provides: “Evidences (sic!) obtained with violation of the rights and freedoms of a person or with violation of the provisions of this Code that influenced (sic!) or could have influenced (sic!) their reliability cannot be used as the grounds of accusation.” Article 242 that deals with pre-trial investigation in general refers in paragraph 5 to the exclusionary rule and its restriction provided for by Article 164 (2). As a consequence of Articles 164 and 242, evidence is to be excluded only if it is considered unreliable.
There can be no question that Articles 164 and 242 are not in conformity with Article 8. From a systematic point of view, Article 8 seems give what will again be taken away by Articles 164 and 242.
The two Articles must also be criticized from a substantive point of view. Excluding evidence that seems to be “unreliable” has nothing to do with the modern idea of the exclusionary rule. To avoid miscarriages of justice, unreliable evidence has never been used as a basis for conviction. On the other hand, the idea of the exclusionary rule is to exclude evidence even though it is reliable. The reason for excluding reliable evidence is that it was procured in an illegal way. Article 164 of the Draft mixes the traditional concept of excluding unreliable evidence with the modern idea of excluding illegally received – but reliable – evidence. Because of this confusion Article 164 in the end abolishes the exclusionary rule that is introduced by Article 8.
There are two options to solve the problem. Article 8 (4) could be deleted and replaced by Article 164 (2). In this case the Draft would decide not to adopt the modern idea of the exclusionary rule. This would, however, require a change of the Ukraine Constitution. It seems doubtful whether this would be a desirable solution.
The other option would be to rephrase Article 164 (2), so the question of reliability will be separated from the problem of illegality. If the Draft provides for the exclusion of illegally obtained evidence it will be in conformity with the Ukraine Constitution. It will also be in line with the modern development in Western – and a number of Eastern – countries that try to protect individual rights by deterring law enforcement agencies from resorting to illegal investigation methods.
To leave Article 8 (4) of the Draft as it is, does, however, not solve all problems. It must be asked whether it is a wise policy to provide for a wholesale exclusion of illegally received evidence, no matter how slight the illegality may be. A few examples may show where the problems are. Should evidence be excluded in a case where an inspection or a search was conducted with only one attesting witness instead of the required two being present? Should the testimony of a witness be excluded if the witness was not warned that he or she has to tell the truth?
Should a video-tape showing a rape be excluded because the victim of the rape has stolen the tape from the person who recorded it?
Furthermore, there is the question whether illegally obtained evidence must be excluded also in cases where the evidence is favourable to the accused. The accused would certainly be happy to agree that the evidence will be admitted, but Article 8 (4) of the Draft does not seem to allow for any exception from the wholesale exclusionary rule.
It is also unclear what will happen if illegally obtained evidence is used to collect “fruits of the poisonous tree”. If an inquiry officer procures a confession from the accused with the help of torture this confession must certainly be excluded. Part of the confession was, however, that the accused explained where he had hidden the murder weapon. If the police officer goes and finds the weapon with the accused’s fingerprints, – can this weapon be used as evidence or must it be excluded according to Article 8 (4) of the Draft?
Finally, it must be pointed out that Article 455 (6), a provision concerned with the jury trial, offers still another kind of exclusionary rule that does not conform to Article 8 (4) of the Draft and Article 62 (2) of the Constitution. According to Article 455 evidence must be excluded if it was “obtained with considerable violations (sic) of law”. – It is interesting to note that the exclusionary rule proposed by Article 455 is similar to an exclusionary rule that can be found in the Spanish Criminal Procedure Code. Section 11 (1) of the Spanish Code provides that evidence “obtained directly or indirectly in violation of fundamental rights and liberties is without effect”.
The Draft will have to address these questions and contradictions. If the Draft would not do so, it would be left to the Ukraine courts to solve the problems. In this case it can be expected that there would be a long period of uncertainty.
6. Warnings to be Given to the Suspect and the Accused
Several provisions of the Draft address the question what warnings must be given to the suspect and the accused before the interrogation starts.
Article 13 provides in general language that criminal justice authorities must inform the suspect and the accused of their rights. The provision requires the “court, judge, judge-investigator, public prosecutor and a person conducting inquiry” to give such warnings. The investigator is not included in this list. This seems to be an inadvertent omission either in the English translation or in the original text that needs to corrected.
According to Articles 46 and 48 the suspect and the accused have identical rights during interrogation. The two Articles do not state in clear language that the suspect and the accused must be informed of their rights. With respect to Article 13 it can be expected that such warnings are required. It would, however, be advisable to include a reference to the warnings in Articles 46 and 48.
It is not clear to what extent the suspect and the accused has a right to have defence counsel present during interrogation. Articles 46 (1) and 48 (1) provide, on the one hand, that the suspect and the accused give evidence in the counsel’s presence. On the other hand, both Articles – and also Article 55 (2) (1) – provide for important exceptions. The suspect and the accused have the right “to have meetings with a defender after the first questioning… if it does not impede performance of investigative actions”. The question is how the suspect and the accused can manage to have counsel present during the first interrogation if they can meet with counsel only after the first interrogation is finished. The Draft should answer this question in clear language.
Counsel should be permitted to be present during the first interrogation. In most cases the main purpose of the interrogation is to procure a confession or an admission. Once a confession or an admission has been made “the cat is out of the bag” and participation of counsel at later interrogations will be of little help.
There is the further problem that according to Articles 46 and 48 consulting with defence counsel can be denied if it would “impede performance of investigative actions”. It seems that with the help of this clause defence counsel can be excluded from all interrogations. Experience teaches that law enforcement authorities tend to turn clauses providing for such exceptions into general rules that will always be followed in the day-to-day practice.
Articles 46 and 48 do not fully state what warnings are required. Articles 168 (3) and 169 (3) add another warning that must be given to the suspect and the accused. They must be informed that a refusal to testify “can limit realization of his or her right to defence”.
Articles 249 and 250 again deal with the interrogation of the suspect and the accused. Paragraph 3 of both articles seems to provide for a right to have counsel present during interrogation without the restrictions of Articles 46 and 48.
To take care of these divergences and problems, it is suggested to consolidate the different Articles dealing with interrogation. All problems concerning warnings that must be given should be dealt with in a single Article. Other Articles can, if necessary, refer to it.
This Article on the warnings should also address the question what will happen if the suspect or the accused says that he or she wishes to remain silent or to have counsel. Experience teaches that in such case law enforcement authorities in many countries will just go on with their questioning. This takes the teeth out of the right to remain silent and to have counsel. Therefore, a provision should be added to the Draft stating that questioning must stop as soon as the suspect or the accused wishes to remain silent or to have counsel.
7. Criminal Offences and Social Dangerousness
In a number of provisions the Draft refers to the concept of social danger.
Article 61 (1) talks about damages caused by “a crime or other socially dangerous act”.
Article 158 (1) defines evidence to prove a “socially dangerous act”.
According to Article 189 (4) the court may drop a case involving a crime of small or medium gravity if the offender is not to be considered a “socially dangerous” person.
In a similar way, Article 193 (1) provides for the dropping of a case where a “socially dangerous act” was committed by a child of no more than eleven years.
Article 406 refers to the insane defendant who committed a “socially dangerous act”.
The concept of social dangerousness seems to go back to Socialist times. Socialist law relied on a “material” concept of the offence by referring to the social danger it caused. The concept of the crime in the Western countries is, on the other hand, defined in a “formal” way, by simply referring to the provisions contained in the special part of the penal code. According to this “formal” concept, there is a crime whenever an act is committed that violates one of the provisions of the penal code. While the formal approach helps to make criminal law predictable, the question under what conditions an act must be considered socially dangerous involves value judgements and, thus, blurs the line between guilt and innocence.
Article 7 (1) (1) of the European Convention on Human Rights provides that “(n)o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence… at the time when it was committed”. The purpose of the Article is to provide for the predictability of criminal law. In view of this, it seems questionable whether the concept of social dangerousness would be in conformity with the predictability requirement of Article 7. It should be added that, to date, the European Court and the European Commission have not addressed this problem.
8. Compulsory Prosecution and Prosecutorial Discretion
If the English translation is understood correctly, Article 179 (2) of the Draft provides that the activities of the prosecutor, the investigator, and the inquiry officer are governed by the principle of compulsory prosecution. Whenever there is suspicion that a crime has been committed an investigation has to be conducted and charges be brought. This is in line with the traditional constitutional philosophy that all people are equal before the law and that, therefore, all crimes coming to the attention of the prosecutor or the investigating authorities have to be investigated.
Articles 184 – 198 of the Draft provide for a number of exceptions from this strict rule. According to these Articles, the judge can on the prosecutors request dismiss a case even though there would be sufficient evidence to warrant a conviction. Authorizing the judge to terminate a case seems necessary in a time where provisions of substantive penal law have been vastly expanded to provide enforcement tools for all kinds of administrative regulations. In view of this, strict enforcement of the rule of compulsory prosecution would lead to a great number of convictions that would hardly seem justified.
Articles 184 – 198 are, however, to some extent repetitious and not always easy to understand. Therefore, a number of questions must be asked.
Article 184 talks about “non-rehabilitating grounds”, as opposed to “rehabilitating grounds” to which Article 183 refers. Even after carefully studying the two Articles it cannot be found out what is meant by these terms.
Under Article 184 (2) a case can be dismissed “owing to a change of the situation”. This clause seems to be rather wide, so it will provide the court with unlimited discretion to drop a case. Courts can always find evidence for “a change of the situation”. Is it the purpose of this clause to provide courts with such kind of discretion? Article 189 refers in the context to the concept of “social dangerousness”, but this concept seems to be as vague as the “change of the situation”.
Article 188 (1) states that the court has “the right” to dismiss a case if the act the accused has allegedly committed is, due to a change in the law, no longer illegal. It should be expected that in such case the court is under a “duty” to drop the case. According to Article 188 (3) and (4) the accused’s consent is required for the dismissal of the case. It must be asked why the accused needs to consent even though it is no longer considered illegal what he or she has done.
Articles 185 (1) and 190 refer to accused’s “active confession” as a requirement for dismissing a case. It is not clear what is meant by an “active confession”. Article 190 (2) talks about sincere repentance and reimbursement of damages, but these are acts that do not typically involve a confession. In criminal proceedings a confession is made before a judge, a prosecutor or an investigating authority.
Articles 184 – 198 are provisions that most likely will play an important role in the day-to-day practice of criminal justice administration. It would, therefore, be helpful if the provisions were rearranged and rephrased in order to make them more easily understandable.
9. Obligatory Defence Counsel and Appointed Counsel
Following continental European tradition the Draft provides for obligatory defence counsel, i.e. a system where independent of the accused’s will defence counsel must participate in the pre-trial proceedings and at the trial. Article 57 of the Draft lists a number of cases where participation of counsel is considered obligatory. According to Article 57 (1) (4) defence counsel is obligatory if life imprisonment may be imposed. Article 57 (1) (8) provides for obligatory defence counsel if the case is tried before a jury. Jury trials are, however, held only if the defendant may receive a life sentence.
The two clauses seem to restrict obligatory participation of defence counsel in a serious way. It may be expected that under Ukraine law life imprisonment may only be imposed in exceptional cases. In view of this, it must be asked whether obligatory defence should not be expanded. Today, it is widely accepted that the role of defence counsel is not only to fight for the client but also to help in finding the truth and, thus, prevent miscarriages of justice.
Article 335 (1) (2) provides that in cases of obligatory defence the judge appoints counsel when the prosecutor has filed the charge and the case is being prepared for trial. The European Court has stated in several decisions that it is important for the accused to have the assistance of counsel already in pre-trial proceedings. In view of this it is suggested to have counsel appointed as soon as it becomes apparent that there is a case of obligatory defence.
The principle of obligatory defence is supplemented by the principle that counsel will be appointed on the request of the suspect, accused or defendant (Article 58 (3) (2)). There can be no question that the combined system of obligatory defence and appointed counsel is in line with Article 6 (3) (c) of the European Convention.
It could be argued that obligatory defence does not need to be expanded in a system where the suspect, accused, and defendant can always request to have counsel appointed. Experience teaches, however, that there are many cases where participation of counsel would be necessary but a request is not made.
10. Inspection of the Investigation Files
It is not clear to what extent the Draft allows the suspect, accused, defendant, and defence counsel to inspect the files the investigation authorities have accumulated. Such right of inspection is necessary to prepare the defence and to compensate for the vast investigating powers of the inquiry officer, investigator and prosecutor.
Article 338 provides that after the prosecutor has filed the charge and while the judge is preparing the trial, defendant and defence counsel can request to inspect the investigation records. The judge “may” grant such request. This rule must be criticized for two reasons. First, it should not be left to the judge’s discretion whether or not to allow the investigation files to be inspected. The defendant and defence counsel must have a “right” to do so. Second, the possibility for inspection comes too late. The defence should have an opportunity to inspect during the investigative stages of the proceedings, in any case before the investigator prepares the charge.
There are a number of Articles in the Draft dealing with inspections during the investigative stages, but none seems to provide for an unrestricted right to inspect files. Under Article 46 (1) the suspect has the right “to get acquainted with the records of investigative actions” but only as far as they have been performed with the suspect’s participation or on the suspect’s application and only in cases “directly envisaged by this Code”. Article 48 (1) provides for a similar restricted right of the accused. According to Article 55 (14) the defender, that is also defence counsel, has the right “to obtain copies of procedural documents and to get written notifications” but only “in cases envisaged by this Code”. Article 300 (1) requires the investigator to allow the accused and defence counsel “to familiarize themselves with records of investigative actions” but only if these actions were “performed with their participation or on their request”. By referring to Articles 298 and 299, Article 300 further restricts this right of inspection to cases where pre-trial proceedings will be terminated. It remains unclear why this last condition is imposed.
It would seem to make more sense if Article 300 gave a right of inspection in cases where the prosecutor will bring a charge, i.e. in cases where the accused will, with the help of counsel, need to prepare the defence.
Article 6 (3) (b) of the European Convention provides for the right “to have adequate facilities for he preparation of his defence”. It is generally understood that this includes the right to be informed about the evidence the investigation authorities have collected. One could argue that in Ukraine criminal procedure the “letter of accusation” (Article 304) informs the accused about details of the case against him or her. It should not be overlooked, however, that the “letter of accusation” comes rather late, i.e. when the collecting of the evidence has been finished and that this letter never informs about everything that is in the investigation file.
Therefore, it is suggested to consolidate the great number of Articles dealing with inspection and add a provision to the Draft authorizing defence counsel, and, to some extent, also the accused, to inspect the investigation file without any restrictions, even in the investigative stages of the proceedings. This would be in conformity with the modern development of European criminal justice administration.
11. Inspection, Examination and Search – Articles 263 — 278
The English text of the Draft distinguishes between inspection (Article 263) and search (Article 270). It remains unclear what the difference is. Perhaps, this may be a problem of the English translation. It does also not seem understandable why a person can be an object of a search (Article 273) but not of an inspection (Article 270).
According to Article 273 a judicial warrant is not required for the search of a person. The same is obviously true as to the physical and medical examination of a person (Article 266). As far as can be seen, the European Court has not yet dealt with the question whether a judicial warrant must be required in these cases. It seems nevertheless highly problematic to permit medical examinations, i.e. serious invasions of privacy and physical integrity, to be conducted without the authorization of a judge. The Draft obviously provides for the possibility to have measures that have been carried out, reviewed by a judge (Articles 317 – 324), but this protection seems hardly sufficient.
12. Inquisitorial Trial and the Adversary Principle
Article 20 (1) provides: “Cases in all courts are considered on the basis of the adversary character.” In view of this, it should be expected that the Draft proposes to introduce a trial that will follow the rules of adversary procedure.
This is, however, not the case. The trial proposed by the Draft will be conducted according to the traditional inquisitorial model. The title of Chapter 40 of the Draft, the chapter containing the provisions on the trial, is called “Judicial Investigation”. At the trial, the judge decides what evidence will be introduced and in which order this will be done (Article 387 (2)). The judge examines the defendant and the witnesses (Articles 388 and 391).
In the last hundred years there has been a general tendency in Europe to change from the inquisitorial to the adversary trial. This does, however, not mean that an adversary trial must be introduced. The inquisitorial trial can as well be considered a fair procedure if it protects the defendant’s rights in a fair way and offers the defence a chance to effectively participate in the presentation of the evidence.
As a consequence, the Draft must not be criticized for the general decision to adhere to the traditional inquisitorial trial. Article 20 should be changed, however, because it states a principle that raises wrong expectations.
There are, however, a number of individual provisions on the trial in the Draft that seem to be problematic.
1) The defendant’s and defence counsel’s rights to participate in the presentation of evidence are rather restricted. It is true that they can ask additional questions after the judge has finished the examination of a witness (Article 391 (3)). Defence counsel can ask additional questions after the judge has concluded the examination of the defendant (Article 388 (2)). The defence can, however, only at the end of the trial, after the presentation of the evidence by the judge has been finished, request that additional witnesses be heard or other evidence be introduced (Article 407 (1)). This is too late! It may severely restrict the defence because defence counsel will have to wait and see how all the evidence against the defendant is presented – evidence that seems to prove the defendant’s guilt in a plausible way. Only then can defence counsel request to introduce evidence favourable to the defendant – evidence that, in the end, might be equally convincing. Experience teaches that it is difficult for defence counsel to attack the case against the defendant once plausible evidence has been presented to prove it.
Article 407 (1) is also misconceived from a practical point of view. If the defence can only at the end of the trial request that additional evidence be introduced, the judge in a big trial that may have lasted for weeks or months will be required to reopen issues that have been dealt with long ago. This will make the taking of the evidence unnecessary time-consuming and complicated.
To take care of these problems it is suggested to allow the defence to request at any time – during the trial and also before the trial – for additional evidence to be admitted. In addition, the defence must have the right at the trial to introduce relevant evidence even over the objection of the judge.
2) Article 402 provides that “records of investigative actions” can be read at the trial. Obviously, such records are to be considered evidence. If the examination of witnesses were, on a large scale, be replaced by presenting records of what they have said during pre-trial interrogations by inquiry officers or investigators, the trial would be reduced to a reading of records. – There can be no doubt that such practice would be against the requirement that the defendant must have a chance “to examine or have examined witnesses against him” (Article 6 (3) (d) of the European Convention).
3) Article 386 (1) provides that at the beginning of the trial the judge asks the defendant whether he or she admits guilt, whether he or she wishes to contest facts and whether he or she wishes to testify. Only then the defendant is, according to Article 388 (1), warned that he or she may refuse to testify. – The privilege against self-incrimination requires, however, that the warnings come first, even before the question how the defendant wishes to plead.
4) According to Article 363 (3) the judge at the trial is authorized “to debar” defence counsel from the trial if counsel has repeatedly interfered with court order. Whatever “debar” means, it seems questionable whether the judge should be given the power to remove defence counsel from the trial. This might prevent counsel from defending the client in a vigorous way. It is part of defence counsel’s role to contradict the judge and oppose the judge’s decisions. In view of this, it would seem to be a better solution for the judge in such cases to send a report to the local bar association, so they can take the necessary – disciplinary – steps.
13. Jury Trial
Article 447 (1) states that the jury trial is based on the “adversarial principle”, but according to Article 455 the jury trial is, like the trial without a jury, a “judicial investigation”. Thus, it can again be said that lip service is paid to the idea of adversariness, while the jury trial actually follows the inquisitorial model. To take care of this problem, Article 447 (1) should be changed accordingly.
Under Article 448 (2) the prosecutor and the defence have the right to challenge prospective jurors. It is left open, however, on what basis they can make their decision to challenge. To allow them to make a reasonable decision they must be given the right to question jurors – or to request the judge to question jurors. Otherwise the right to challenge would be reduced to a kind of lottery.
Article 455 (4) provides that at the jury trial first the evidence of the prosecution and then the evidence of the defence is presented. This seems to introduce an adversary element into the trial. It remains unclear, however, how the evidence of the prosecution will be separated from that of the defence. All evidence is included in the investigation file that passes from the investigator to the prosecutor and, finally, to the judge. Will the judge be required to artificially separate the evidence contained in the investigation file?
III. Comments on Individual Articles of the Ukraine Draft
1. Contact of the Accused with Witnesses – Article 48 (3)
Article 48 (3) forbids, among other things, the accused to try to persuade a witness to refuse to give evidence. Accordingly, an accused will be prohibited from asking his wife to make use of her right to refuse to testify – a right she enjoys according to Article 76 (3) (1).
It must be asked whether the prohibition proposed by the Draft would be in line with Article 8 (1) of the European Convention that protects the accused’s “right to respect for his private and family life”. Not allowing the accused to tell his wife that he would have to go to prison if she testified against him and that the family would have to live on social welfare, would certainly interfere with family life. In this and similar cases protection of privacy must take priority over the interests of law enforcement.
2. Right to Refuse to Testify – Article 76 (2)
Article 76 (2) lists a number of persons who can refuse to testify in order to protect personal or professional interests. It must be asked whether the protection of these interests does not require to include other persons. Medical doctors should have the right not to give evidence as to information they have received on the basis of the confidential relationship they have established with their patients. Members of parliament should not be required to disclose confidential information or the identity of persons who gave them such confidential information if they have received the information with respect to their political capacity. Journalists should be allowed not to disclose the identity of persons who provided them with information with respect to their professional capacity. This will help the media to more effectively exercise their role of controlling government.
It should be added that a right to refuse to testify should also be given to the employees and other persons working with the professionals just mentioned. Otherwise their right to refuse testimony could easily be circumvented.
3. Length of Detention – Articles 119 (1) and 125 (3)
According to Article 119 (1) (1) detention – without a judicial warrant – may not last longer than 72 hours. Article 125 (3) states, however, that in cases where the detained person has lodged an appeal against the detention, i.e. has requested to be released, this appeal must be heard within five days.
The language of the English translation of Article 125 (3) is not very clear. If the Article provides that detention can be extended for an additional five days beyond the initial 72 hours, it is not in conformity with the European Convention. Article 5 (3) of the European Convention provides that an arrested or detained person must be brought “promptly” before a judge. According to the cases decided the European Court a period of 72 hours, i.e. three days, plus five days is too long.
4. Notifying Persons of Detention and Custody – Articles 123 (5) and 141 (3)
Articles 123 and 141 provide that ordinarily a close relative or a close person must be notified if a suspect is detained or taken into custody. Exceptions can be made if it is “in the interest of pre-trial investigation”. It is suggested that in such case an attorney be informed to avoid that a person might just disappear.
5. Contact of the Detained Accused with Defence Counsel – Article 142 (2)
Article 142 (2) allows meetings with the detained accused only “in the presence of a representative of the administration of the place of detention in custody”. In addition, an inquiry officer, investigator and prosecutor have the right to be present. These restrictions obviously include meetings of the detained accused with defence counsel.
This is not in conformity with Article 6 (3) (c) of the European Convention that provides for the minimum right of “legal assistance”. The European Court has in the case S. /.Switzerland (decision of November 28, 1991; series A, no. 220) interpreted this clause as to include the right of the detained accused “to communicate with his advocate out of hearing of a third person / out of earshot of the prison authorities”. No confidential preparing of the defence would be possible if it had to be done under the surveillance of prison personnel or even investigation authorities.
It is suggested to add an Article to the Draft providing for unsupervised contacts between the detained accused and defence counsel. This Article should also state that mail exchanged between the detained accused and defence counsel may not be opened. The European Court has not yet addressed this issue, but it is generally accepted that the right to exchange uncontrolled mail must also be extrapolated from Article 6 (3) (c) of the European Convention.
6. Decision on Preventive Measures – Article 145 (1) (2)
Article 135 (1) (2) reads: “Preventive measure such as handing over under supervision of militia, dismissal from office, home arrest and detention in custody are applied by a judge-investigator with agreement a public prosecutor, or by the application of a public prosecutor as well as by judge or court.”
The text is not clear. If the Article provides that the prosecutor can decide that a person will be detained in custody, it is not in line with the European Convention. According to Article 5 (3) of the European Convention the decision to detain someone is reserved to the judge.
7. Placement in a Medical Hospital – Article 154 (1)
Article 154 (1) allows to place a witness and a victim in a medical hospital for up to two months in order to have medical or psychiatric examinations conducted. As the Article refers to “forensic” examinations, the purpose of this measure seems to be the examination of mental conditions. If this assumption is correct it must be asked whether such serious invasion of personal freedom can be justified only to ascertain whether a witness or a victim can be trusted to tell the truth. Article 5 of the European Convention does not authorize the taking of personal freedom for such purpose.
8. General Obligation to Report Crimes – Article 199 (1)
Article 199 (1) requires everyone to inform criminal law enforcement authorities about crimes that have been committed. As the Article does not allow for any exception, it might work to turn the whole country into a crime reporting machinery. For example, the wife will be under a legal duty to inform the police that her husband has committed a crime, friends will be required to report crimes of close friends. – There can be no question that such Orwellian system where all people are required to supervise each other will not work. It can hardly be considered desirable.
9. General Rules of Investigation – Article 241 (4)
Article 241 (4) forbids the use of “violence, threats and other illegal means” as well as creating “danger for life and health of persons” when conducting investigations. The Article does not address other issues that must be considered equally important, such as deception, the application of drugs, the use of a lie detector, and the placing of a police informer in the cell of a detained accused in order to procure a confession. European countries do not seem to be in full agreement as to what extent such techniques are justified. Therefore, it would be advisable for the Draft to take a clear position on these questions.
10. Record of Questioning Suspect and Accused – Article 251
Article 251 states in great detail what must be included in the record to be prepared when a suspect or an accused is interrogated. It is suggested that the record also states that the required warnings were given to the suspect and the accused before interrogation started. This part of the record should be separately signed by the suspect or accused. – Article 254 (2) can, to some extent, be taken as a model because it requires the record on the interrogation of a witness to state that warnings were given.
11. Attorney Present During Questioning of Witness – Article 252 (3)
Article 252 (3) allows the witness to have an attorney present during interrogation. The attorney has, however, “no right to put questions to the witness and give his/her comments on answers of the witness”. Only after the questioning is finished may the attorney make “statements”. These restrictions reduce the role of the attorney during interrogation to holding hands with the witness. The restrictions are likely to make the interrogation complicated because it cannot be excluded that the interrogation of the witness will be resumed after the attorney has finished the statement. The new round of interrogation will be followed by another “statement” of the attorney, and so on.
The restrictions seem to be based on the idea that the attorney might, perhaps, interfere with the discovery of the truth. This assumption is, however, unfounded. Experience teaches that the attorney rather helps the witness in giving evidence and, thus, tries to avoid misunderstandings. Therefore, the restrictions should be deleted.
12. Confrontation – Article 257
Under Article 257 the investigator can arrange for “a confrontation between two previously questioned persons in whose testimonies there are contradictions”. It must be assumed that the term “person” includes witnesses as well as accused. If understood correctly Article 257 seems to provide for some kind of small scale trial before the trial.
The confrontation procedure conducted before an investigator must be considered questionable from different points of view. First, the investigator cannot be expected to function like a neutral and objective judge. Second, the confrontation where the investigator is obviously expected to ask the main questions and where no defence counsel is present must be considered a typical inquisitorial procedure. It is hardly in conformity with the model of the adversary procedure that is advocated by Article 20. Third, it must be asked what role the record of such confrontation procedure shall play at the main trial. If it were to be used as evidence it could, to some extent, render the main trial irrelevant. Therefore, it is suggested to delete Article 257.
III. Concluding Remarks
Only the most important problems and shortcomings of the Draft have been pointed out here. To bring the Draft up to the standards of the European Convention and of modern European legal principles it needs to be thoroughly and carefully revised.
Among other things, provisions of the Draft should be written in clear and brief language. They should not be repetitious and also not state the obvious. To be brief, provisions of the Draft should be general and abstract wherever possible. They must, however, be specific and detailed whenever necessary to limit the powers of criminal justice authorities and to protect individual rights.
Professor Dr. Joachim Herrmann, LL.M.
Faculty of Law, University of Augsburg, Germany
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