Draft of the Criminal-Procedural Code of Ukraine contradicts the standards of the Council of Europe
The public hearings «Human rights and fundamental freedoms in the draft of the Criminal-Procedural Code of Ukraine» were held on 12 May in Kyiv in the conference hall of the Regional center of the Academy of Law of Ukraine. The hearings were organized by the Council of Ukrainian human rights protecting organizations and the Kharkov group for human rights protection with the support of the International Foundation «Vidrodjennia».
Members of the working group that had developed the code, representatives of 25 public human rights protecting organizations, scientists and representatives of mass media took part in the hearings.
The draft of the Criminal-Procedural Code of Ukraine was presented for the second reading in the Parliament as early as in September 2003. Yet, the voting did not take place then. This spring the draft of the code was included into the schedule of the Parliament for several times, but the voting was not conducted. Now the draft of the Criminal-Procedural Code is planned to be considered in the second half of May 2004, but, most likely, the consideration will be postponed again.
The majority of the participants mentioned the considerable number of drawbacks of the draft, which drawbacks created the auspicious conditions for systematic, uncontrolled and arbitrary violations of rights and fundamental freedoms of common citizens.
Advocate Arkadiy Bushchenko, an expert of the Kharkov group for human rights protection, pointed out that the repressive ideology of the criminal process was included into the draft of the CPC «on the molecular level». He stated that, in fact, the draft did not fulfill any of the provisions stipulated by Article 5 of the European Convention on the protection of human rights and fundamental freedoms.
We want to remind that last year’s Resolution of the Parliamentary Assembly of the Council of Europe No. 1346 (2003) on the fulfillment by Ukraine of her duties and obligations reads: «The Assembly expresses its deep anxiety about the slow progress in introduction of the principles and standards of the Council of Europe by the power organs of Ukraine, which is confirmed by the fact that some clauses of the last version of the draft of the Criminal-Procedural Code are incompatible with the standards of the Council of Europe guaranteed by the European Convention on human rights and the practices of the European Court of human rights». It should be noted that the draft of the Code practically was not changed after the adoption of this Resolution: it still remains repressive and, in fact, legalizes the existing administrative practice of systematic violation of human rights and fundamental freedoms.
The following drawbacks of the draft of the Code were mentioned as the most flagrant ones:
1. Restriction of the opportunities for the competitive examination of proofs; absolute absence of the constitutional principle of competitiveness on the stage of pre-trial investigation, which principle is an integral part of fair trial from the standpoint of Article 6 of the European Convention on the protection of human rights and fundamental freedoms;
2. Powers of law-enforcing organs to restrict rights of an individual without the sufficient guarantees against the arbitrary actions;
3. Expanded existence of the institute of «the suspected», which is essentially limited in democratic countries – this allows the long-term restriction of rights and freedoms of an innocent person: in democratic countries a person may have the status of the suspected during 24, 48 or 72 hours. According to the considered draft, a person is acknowledged to be suspected since the moment of institution of the case against him/her; since this moment any preventive measures may be applied to him/her and the person may have this status for a very long time;
4. Possibility to restrict the access of the suspected and accused persons, as well as their advocates, to all materials of the case, without which the efficient defense is impossible;
5. Possibility of repeated return of criminal cases by court for additional investigation instead of issuing the verdict of “not guilty”, which, in fact, implies the a priori accusatory character of the work of court, when the court is sure of the guilt of the accused, but there are no sufficient objective proofs of this guilt;
6. Distortion of the institute of «bail», which makes its use impossible;
7. Absence of regulation of court procedure of consideration of the question about the arrest of the detained and periodical reconsideration of this question; as a result, Ukraine occupies one of the first places in Europe by the number of people, who stay in custody for 3-5 years without the proper verdict, and the deprivation of liberty is still the most popular preventive measure;
8. Possibility of search, seizure of documents and realization of other procedural actions against a person before institution of criminal case;
9. Procedure of the admittance of advocate to the case: in fact, the prosecution gives the permission for his access, which is a doubtless violation of the principle of equality of sides and competitiveness, and is a tool for admittance of the «needed» advocates;
10. Prohibition to divulge any data concerning the criminal case without the proper permission of the investigating officer, which creates the conditions for secret persecution and contradicts the European practices, where only the data of the ODA and the identity of the accused are regarded as secret;
11. Presence of the illegitimate powers of investigating officers concerning the fixation of proofs in criminal case, which contradicts the practices of democratic countries and creates numerous opportunities for misuses: the right to fix the proofs (interrogation of witnesses, conduction of confrontations, procedure of identification, etc.) must be rendered only to court, except the cases, where the law-enforcers are «hot on the heels» of the criminal;
12. Power of the prosecutor’s office to realize general supervision over lawfulness and investigation, which contradicts the Constitution of Ukraine and the European practices;
13. Absence of introduction of the uninterrupted trial, which fact protracts the consideration of cases for the indefinite term and deteriorates the quality of justice;
Thus, the draft of the Criminal-Procedural Code must be essentially revised in order to adjust its provisions with the standards of the protection of human rights, which are guaranteed by international agreements signed by Ukraine. The Criminal-Procedural Code may not be adopted in the present form in any circumstances. The concrete propositions and analytical materials, which were presented at the hearings, are placed on the site www.rupor.org.
Secretariat of the Council of Ukrainian human rights protecting organizations
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