Conceptual principles for a new draft of the Criminal Procedure Code

A roundtable discussion took place on 13 and 14 September on “Doctrinal guidelines for a new draft of the Criminal Procedure Code”, where the first stages of a draft,  put together by the working group of the National Commission working on the new Criminal Procedure Code [CPC], were presented.

The roundtable was run by the National Commission for the Strengthening of Democracy and the Rule of Law with the participation of leading specialists in the sphere of criminal and criminal procedure law, international experts, with the support of the Advisor on Legal Issues Department of the US Embassy in Ukraine.

The doctrinal guidelines for a new draft of the Criminal Procedure Code were prepared as implementation of point 8 § 2 of Section 1 of the “Action Plan Regarding the Performance of Ukraine’s Obligations Pursuant to its Membership in the Council of Europe”, issued as Presidential Decree № 39/2006 on 20 January 2006

The story of the Draft CPC is not simple. It was registered in Parliament in May 2003. This draft, after being drawn up for ten years by a working group, was passed at the first reading after just a few weeks. However that draft did not comply with human rights standards and accordingly met with resistance. Human rights groups mounted a campaign, holding a number of press conferences just before the latest version of the draft was due to be voted on. There were also public hearings over the draft in 2004 and later in January 2006.

At the initiative of human rights groups and others who were concerned, the draft was also sent for an expert analysis to the Council of Europe which gave an extremely negative assessment. The draft was also negatively assessed by lawyers and academics. The draft was in the main only liked by law enforcement agencies which at the end of the day is entirely understandable.

In view of the negative conclusions from the Public Hearings run by UHHRU, the International Renaissance Foundation and the National Commission for the Strengthening of Democracy and the Rule of Law in January 2006, the President decided to have a new draft CPC prepared. The responsibility for this was assigned to the National Commission which by that stage had already begun working on a Strategy for reforming the criminal justice system.  This Strategy should contain in addition to reforms of the criminal process, also reform of the Criminal Procedure Code and of the law enforcement agencies.

The working group of the National Commission, headed by Viktor Shishkin, member of the Commission and Judge of the Constitutional Court of Ukraine, began its work in June of this year.  The working group contains well-known academics and human rights activists. The “interests” of human rights groups in this process are represented by defence lawyer Arkady Bushchenko.

The roundtable discussed conceptually new elements of pre-trial investigation which can without exaggeration be called revolutionary. A great deal of discussion remains ahead, as well as the preparation of the actual draft CPC, however certain ideological principles of the draft show that it is the  nearest to democratic standards and consideration of the individual’s rights and freedoms of all known in Ukraine.

This is how the innovations of the draft CPC are described by its creators.

The philosophy behind the new CPC is aimed at searching for a procedure for state bodies to implement proceedings on actions stipulated by the Criminal Code of Ukraine as a result of which contemporary Ukrainian society will be able to resolve two main types of tasks:

  1. effective work by state public order agencies on protecting society and its members from crime;
  2. maximum observance of Convention human rights of all those individuals involved in criminal matters.

With this aim:

  1. Under the new CPC the work of state bodies on uncovering and investigating crimes should be standardized in terms of procedure, and all redundant bureaucracy and guardianship removed;
  2. The new CPC should become a code of rights of the individual in relation to the prosecuting and court authorities, and not a ritual for assigning punishment.

The achievement of these goals is envisaged through the following new features of the new CPC.

At the pre-trial stage:

  1. The starting point for a criminal investigation is the moment when an individual approaches the relevant public order agencies reporting acts suggesting criminal behaviour, the report by an official of the public order agency, information in the media.
  2. Proceedings must be open regarding the event which bears the hallmarks of a criminal behaviour, and not against the individual.
  3. Internal and inter-departmental stages in the investigation like detective inquiry [diznannya – investigation before any charges have been laid] and pre-trial investigation are eliminated. The body carrying out the criminal investigation is responsible for both investigative operations and investigation activities known as the criminal investigation.
  4. The head of the law enforcement body is responsible for the organizational side of the criminal investigation.
  5. From the beginning of a criminal investigation all procedural investigative operations and investigation activities may be undertaken.
  6. The prosecutor shall carry out supervision of the investigation and of compliance with the law during the investigation in the sense of the controlling functions performed by prosecutors in European countries. The prosecutor shall also be responsible for the conclusion of the investigation.
  7. The investigation body shall provide the suspect with notification that s/he is suspected of being involving in the committing of a crime.
  8. From the moment that a suspect appears in the process the investigation body shall involve in the proceedings a defence lawyer or representative.
  9. The investigation body shall undertake the gathering of material, documents and information which the court may accept as being proof of the committing of a crime.
  10. The investigation must be carried out with observance of all elements of the principle of equality of arms, this meaning that all material which may be presented in court as evidence is received by the defence lawyer, and that the latter is familiar with the material which established the charges.
  11. If there is a sufficient weight of evidence to provide grounds for charging the suspect with having committed a crime, the prosecutor lays such charges, and the person charged becomes the accused.
  12. On the results of the pre-trial investigation the prosecutor prepares an indictment and passes this to the court together with the register of material and documents which the court can take as evidence that the person committed a crime.
  13. The period of the pre-trial investigation from the moment a person is informed that s/he is suspected of being involving in the committing of a crime to when the indictment is sent to the court may not exceed six months.
  14. A person detained or arrested may only be a person who has been informed of the fact that s/he is suspected of having committed a crime.
  15. There is no need to stipulate the period from the beginning of a criminal investigation to the moment when a person is informed of the fact that s/he is suspected of having committed a crime.
  16. During the period of the pre-trial investigation the investigation judge carries out the functions stipulated by norms of the Constitution of Ukraine.
  17. Particular features in the investigation into a certain category of charges of having committed a crime are stated.
  18. Throughout the criminal proceedings (pre-trial investigation and court consideration with the handing down of a court ruling), a person charged with having committed a crime has only two procedural types of status – suspect or accused.

At the stage of court proceedings:

  1. The judge studies only the indictment and the register of material, documents and reports which may be evidence.
  2. The material, documents and information about testimony is submitted to the court directly by the prosecutor and the defence lawyer.
  3. The judge holds preliminary hearings to ascertain the readiness of the parties to the case being considered.
  4. Consideration of suggestions for an amicable agreement.
  5. Court proceedings by default / in the person’s absence
  6. Ordered proceedings – a judge’s ruling without a court hearing of a court order on punishing an individual for a criminal offence committed, if the individual does not deny guilt and does not object to the punishment which the court may designate.
  7. Full court review of the charges laid against an individual.
  8. A meeting room for the staff of the court and for the passing of a court ruling.
  9. Formation of juries – the prosecution and defence take part under the control of the judge
  10. Consideration of a case by a jury in which according to the adversarial principle the parties in the proceedings take part in studying documents, the members of the jury accept or do not accept them as evidence, and the person presiding (a professional judge) only manages the process.
  11. The meeting room for the jury – handing down their verdict on the basis of the judge’s guidance.
  12. The passing of a court ruling by the person presiding (a professional judge) on the basis of the jury’s verdict.
  13. The rules of procedure for pronouncing the court judgment taking into account the particular features of such passing of judgments by a panel of professional judges or a jury.
  14. Particular features of the consideration of a charge under closed conditions and the study of special testimony (for example, the questioning of an undercover agent).
  15. Particular features of the consideration of certain categories of individuals charged.

Volodymyr Yavorsky, UHHRU

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