On December 7, 2017, the Law came into force, which the media described as “On combating illegal pressure on business”, “On protection of business”, or “Mask show: stop”.
With the latter name, those who “publicized” this law clearly overstepped, given the content of the adopted changes.
(Less popular official name: Law of Ukraine “Amendments to Certain Legislative Acts to Ensure Compliance by Participants in Criminal Proceedings and Other Persons by Law Enforcement Bodies During Pre-Trial Investigation”).
We present our own vision of the TOP-10 (in increasing importance) of the most significant changes, their significance and shortcomings:
10. There is a requirement for full fixation of the court session during the consideration of issues by the investigating judge, in cases related to the consideration of issues of granting permission for NSDS (Part 4 of Article 107 of the CPC of Ukraine)
On the one hand, this guarantee is difficult to underestimate, as a fully recorded trial is always more objective and can be tested for legality and completeness. On the other hand, such an innovation is seen as placing an undue burden on investigating judges, who will be required to deal with hundreds and thousands of requests for temporary access and searches, subject to mandatory proceedings. At the same time, the law still does not provide for the possibility of considering a party’s petitions in its absence. Conducting procedural actions by investigating judges in the absence of a party and without recording will now place any evidence gathered on the basis of such a court ruling at the risk of inadmissibility.
9. Information of the pre-trial investigation may be disclosed only with the written permission of the investigator or prosecutor (Part 1 of Article 222 of the CPC of Ukraine)
The changes in this norm are that now the form in which the permission for disclosure of information of pre-trial investigation should be given is specifically defined. This form may be in writing only.
It can be seen that these changes are largely directed against populism and “shows” organized by individual high-ranking officials or other persons who have access to certain information in criminal proceedings. Currently, disclosing pre-trial investigation information without the written permission of the investigator or prosecutor becomes a crime. In this case, in our opinion, this rule prohibits the disclosure of written information without written permission, including “managers” and “chiefs”, as well as their “press secretaries”, advisers or deputies, without the written permission of a particular investigator or prosecutor in the proceedings. who are directly responsible for the results and objectivity of the investigation.
8. The applicant will be able to receive an extract from the ERDR within 24 hours from the date of registration of the proceedings (paragraph 11 of Part 1 of Article 60, Part 1 of Article 214 of the CPC of Ukraine).
Prior to such changes, the applicant was not entitled to receive an extract from the ERDR, he could only obtain from the body to which he filed the crime report a document confirming its acceptance and registration (usually a notification letter). This innovation will allow the applicant to be more aware of the start of the pre-trial investigation and to exercise some control over it. The investigator’s responsibilities include assigning the applicant an extract from the ERDR within 24 hours of entering the information. Accordingly, the inaction of the investigator in providing an extract may be the subject of appeal to the investigating judge in accordance with paragraph 1 of Part 1 of Article. 303 of the Criminal Procedure Code of Ukraine.
7. A new subject appears in criminal proceedings – another person, whose rights or legitimate interests are limited during the pre-trial investigation (paragraph 161, Article 3 of the CPC of Ukraine)
This is a person in respect of whom (including his property) procedural actions are carried out in criminal proceedings, which restrict his rights and freedoms.
Recognition of the presence of such a person in criminal proceedings is a huge achievement, which was achieved after 5 years of existence of the new CPC of Ukraine.
For years, the country has been prosecuting individuals and investigating the property of individuals who have not been recognized or given any status by the prosecution. This situation was very convenient for the prosecution, given that the latter may not grant the person any status for years that would give him substantial rights of defense. Any person could be “nightmared” by investigative actions without any substantial reasons and without any limitation within a reasonable time, giving rise to a de facto unjustified unjustified criminal prosecution of a knowingly innocent person. Usually, replies to petitions, complaints and statements of such persons “without status” were enclosed in one sentence: “You are not a party or participant in the proceedings, therefore there are no grounds to consider your” letter “under the CPC of Ukraine.”
We believe that the introduction of this entity is an important step forward, but unfortunately this new entity has not been given almost any rights that would guarantee the latter the right to protection from illegal criminal prosecution. In particular, this new subject was not granted the direct right to file a petition under Article 220 of the CPC of Ukraine and was not granted the right under Article 221 of the CPC of Ukraine to get acquainted with the materials of criminal proceedings, which directly relate to his rights and obligations, which in fact deprives such a person of the opportunity to exercise the right to protection from illegal criminal prosecution.
6. The decision of the prosecutor to refuse to satisfy the complaint on non-compliance with reasonable time by the investigator, the prosecutor during the pre-trial investigation is appealed by the person who refused to satisfy the complaint to the investigating judge (paragraph 91 of Article 303 of the CPC of Ukraine)
Such an innovation enables a person who has been denied a complaint by a higher-ranking prosecutor about failure to comply with reasonable time limits during the pre-trial investigation, his or her representative, legal representative or defense counsel to appeal such a decision. The investigating judge becomes the guarantor of the prevention of abuse and red tape by law enforcement officers in violation of reasonable time limits for investigation.
At the same time, the question remains as to how the investigating judge should act if there is sufficient information in the proceedings to close it or, conversely, to notify a person of suspicion, but such action is not carried out by the prosecution. It is seen that such powers belong to the discretionary powers of law enforcement, but cannot be absolute, given the state of criminal proceedings in the country. Will the investigating judges be able to oblige the prosecution to notify the suspect if the victim insists, or will the investigating judges be able to close the groundless proceedings if the person subject to the illegal criminal proceedings insists? These answers will be shaped by case law over time, but this issue is currently a significant gap in the positive initiative to amend the CPC of Ukraine.
4. Criminal proceedings shall be closed if there is no revoked resolution of the investigator or prosecutor to close the criminal proceedings in respect of the same act (paragraph 10, part 1 of Article 284 of the CPC of Ukraine).
This is the change that the leadership of the GPU and NABU spoke out loud about, demanding not to accept it and veto it. This change will protect their rights (especially in the commercial sector of the country), not allowing the investigating authorities to conduct the same investigations in the “new circle”, changing the information or the investigative unit, without first canceling the original decision to close criminal proceedings on the same fact.
This novelty provides that in the case of an investigation or trial and it turns out that there is no revoked decision of the investigator, prosecutor to close the criminal proceedings on the same act and the subjects – the criminal proceedings are subject to imperative closure.
Such closure is possible if the previous (initial) proceedings were investigated in compliance with the requirements of jurisdiction, and there is no revoked decision to close the criminal proceedings, which:
- the absence of an event of a criminal offense has been established;
- established absence in the act of a criminal offense;
- entered into force a law abolishing criminal liability for an act committed by a person;
- regarding the tax liabilities of the person who committed the actions provided for in Art. 212 of the Criminal code of Ukraine, the tax compromise reached according to subsection 92 of section XX “Transitional provisions” of the Tax code of Ukraine. The person;
3. A person whose home or other property is searched has the right to use the legal assistance of a lawyer at any stage of the search (Part 3 of Article 236 of the CPC of Ukraine).
Finally, at the legislative level, the right to defense is exercised during one of the most important investigative actions of any proceeding, because it was during the search that the prosecution usually “found” and not infrequently “threw” the most important evidence in the case. Previously, the CCP of Ukraine did not prohibit a lawyer from being allowed to search, and this gap was widely and legally used by law enforcement officers who denied lawyers permission to search.
2. The search must be recorded with the help of audio and video recording equipment.
In this case, such a video will be an integral part of
search report.
With a systematic interpretation, it is possible to conclude that currently the lack of technical video and audio recording during the search will lead to the inadmissibility of such an investigative action. Of course, keeping a technical record alone is not a sufficient guarantee for absolute prevention of “provocations – thrown” things and theft of valuable property of the searched, but combined with the mandatory presence of a lawyer during the search – significantly reduces the likelihood of such abuse.
1. Evidence obtained during a search, but if the lawyer was not admitted to such an investigative action, or permission to search was given by the investigating judge without recording the process, are considered inadmissible (paragraphs 3-4 of Part 3 of Article 87 of the CPC of Ukraine).
The most important change in our opinion, because any rights do not make sense if their violation is not subject to severe sanctions. The inadmissibility of the evidence gathered in the event that a lawyer is not allowed to search is a sufficient motivation for the prosecution not to take such action.
If a person whose home or property is being searched has expressed a desire to seek the legal assistance of a lawyer, he or she should be admitted to such an investigative action at any stage of the search.
Full recording of the search for a search permit will allow in the future during the trial to check the validity and legality of such a search warrant, taking into account future (from 15.03.2018) strict requirements for search requests and the evidence on which it must be based.
It should be borne in mind that the amendments to the CPC of Ukraine, which entered into force on 07.12.2017 have significant shortcomings, and will not be able to work in full without significant systemic changes to the CPC of Ukraine, which will take effect only from 15.03.2018, including the new the procedure for consideration of applications for a search permit.
For reasons unknown to ordinary lawyers, because these reasons are more politically compromised than logical and fair, the most significant guarantees introduced by the CPC of Ukraine come into force only on March 15, 2018 (three months after the entry into force of the new procedural codes: CPC, CPC, CAS) and will be applied only to proceedings in which information is entered into the ERDR after 15.03.2018. (paragraph 4 of paragraph 2 of Section 4 of the Law of Ukraine № 2147-VIII). The second article should be devoted to these future changes, if these changes (the so-called “Amendments to Lozovy”) are not repealed by the Verkhovna Rada of Ukraine by the time of their entry into force.