5 questions about “Lozovyi’s amendments”. What is the essence of the problem?

Back in 2017, ex-MP from Radical Party Andrii Lozovyi probably could not imagine that he would become so “famous” very soon. Then he proposed several changes to the Criminal Procedure Code, which, in his opinion, should provide suspects with full protection of their rights and interests. But even then, not everyone shared that opinion.

However, then active Parliament still adopted those amendments to the Criminal Procedure Code. Almost 5 years after those amendments now known as “Lozovyi’s amendments”, the public discussion about their expediency resumed. Back in times of updates to the Criminal Procedure Code of Ukraine, experts warned MPs about the negative consequences of such changes. Parliamentarians did not listen to them and now we see the results of that almost every month.

However, opinions are also divided about the effect of canceling these “amendments” today. The need for their cancellation was noted by G7 ambassadors, but it seems that the law enforcement committee perceived those recommendations in a very interesting way.

What is called “Lozovyi’s amendments?”

As we mentioned earlier that phrase covers a set of amendments to the Criminal Procedure Code of Ukraine that came into force on March 16, 2018. Those amendments concerned a wide range of procedural actions: the appointment of expert examinations by an investigating judge, the procedure for conducting searches, setting the time frame for pre-trial investigation before notifying a person of suspicion, as well as the procedure for their extension.

In the public discussion “Lozovyi’s amendments” mean amendments to the Criminal Procedure Code of Ukraine regarding the establishment of terms for pre-trial investigation. That is, we are talking about the period between the registration of criminal proceedings with the Unified Register of Pre-Trial Investigations before notifying a person of suspicion, as well as from such notification and before sending an indictment to the court or closing criminal proceedings.

Those amendments also established a special procedure for extending such deadlines. That means that either the investigating judge can extend the terms of the pre-trial investigation at the request of the prosecution (this can be done before the notification of suspicion, multiple times), or the head of a public prosecutor’s office (after the notification of suspicion, up to 3 months), or the investigating judge (after the notification of suspicion, up to 12 months).

Judges were also authorized to close criminal proceedings with expired terms of pre-trial investigation. But this cannot be done if we are talking about notifying a person of suspicion of committing a serious or particularly serious crime against life and health.

Regarding “Lozovyi’s amendments” discussed in public discourse, the focus primarily centers on the duration of pre-trial investigations and empowering judges to close cases when these time limits have elapsed.

Are “Lozovyi’s amendments” good or bad?

The above-listed amendments to the Criminal Procedure Code are not bad as such, problems arise when it comes to their implementation. It is not reasonable that an investigating judge must extend the time of pre-trial investigation until suspicion is served. The rights governing judicial oversight cannot be applied yet, as there are currently no suspects involved.

The main problem with “Lozovyi’s amendments” arose because of poor explanation of the regulation process by lawmakers. MPs seemed to describe how exactly pre-trial investigation terms should be extended in old and new criminal proceedings, but they explained that vaguely.

The point is that for their explanations, MPs used unambiguous words and terms of the criminal procedure law. Since law enforcement officers may combine and split criminal proceedings, the procedure for extending the term of pre-trial investigation in joint criminal proceedings remains unclear, when the first of the joint cases could begin long before the adoption of “Lozovyi’s amendments”.

The situation has been worsened even more by the inconsistent and unpredictable practice of applying these amendments by the Supreme Court. Some judges believed that the new procedure for extending the terms of pre-trial investigation does not apply to “old” criminal proceedings, while others thought it did. The Joint Chamber of the Supreme Court formulated the position that in concurrent criminal proceedings where information was submitted both before and after the enforcement of “Lozovyi’s amendments”, the extension of the pre-trial investigation period should be redefined. And this is despite a special instruction in the law!

These uncertainties and varying approaches create difficulties in evaluating whether the pre-trial investigation period was properly extended in a criminal case or if it has possibly lapsed. And, of course, it is no longer necessary to talk about the full protection of the rights and interests of suspects in such situations.

What cases have already been affected by “Lozovyi’s amendments?”

Only this year, due to the expiration of the pre-trial investigation, some high-profile cases were already closed. Rotterdam+ case and the Alperin case are among them. And shortly, the same fate may befall the case of seizure of UAH 9.2 billion by PrivatBank.

Since the information was registered in the Unified Register of Pre-Trial Investigations before “Lozovyi’s amendments” took effect, the prosecution in these cases didn’t find it necessary to seek extensions of the pre-trial investigation period from the investigating judges.

And their position was justified. The law introducing “Lozovyi’s amendments” says that “amendments shall not be applied retroactively” and shall cover cases in which information about a criminal offense is entered in the Unified Register of Pre-Trial Investigations after these amendments are implemented”.

Therefore, the reproaches of those experts who claim that the prosecution was “lazy” or mistakenly did not extend the terms in such criminal proceedings through the investigating judge seem rather strange.

Is there anything good about “Lozovyi’s amendments?” What must not be changed?

It seems probable that setting pre-trial investigation deadlines before notifying an individual of suspicion aimed to prevent law enforcement officers from using intimidation tactics against businesses in actual criminal cases. After all, before the adoption, the National Police, among other authorities, could conduct searches, seize and arrest property, and not bring charges for years.

This is an example of how the problem of pressure on businesses is dealt with by inappropriate means. Since searches are mostly authorized by investigative judges as it was before, they also decide on the seizure of property or consider complaints about non-return of temporarily seized property. In other words, means of judicial control over the observance of individual rights do exist.

Even with the limitation of pre-trial investigation terms before notifying of suspicion, pressure on businesses from law enforcement officers continues.

Having judicial oversight over the extension of pre-trial investigation timelines following the notification of an individual of suspicion is undeniably beneficial. These norms are entirely appropriate since suspects are involved, allowing the investigating judge to oversee the protection of their rights.

Reverting to the former system where the head of the prosecutor’s office extended the timelines could potentially undermine human rights guarantees, as the same prosecutor might subsequently represent the prosecution in court, creating a possible imbalance. We delved deeper into this in the legal analysis of draft law No. 10100, which, according to MPs, is expected to address all issues related to the “Lozovyi’s amendments.”

What needs to be changed in the current Criminal Procedure Code and how will it affect the existing NABU-SAPO cases?

Several measures must be taken to enhance the situation concerning pre-trial investigation timelines.

1. An investigating judge should not extend the terms of a pre-trial investigation when there are no suspects in criminal proceedings. Individuals whose rights are limited without being notified of suspicion should have the option to contest the length of the pre-trial investigation.
2. Simultaneously, in cases involving suspects, the extension of pre-trial investigation periods should be authorized by the investigating judge. If such timelines are extended by the head of the prosecution body, their decision should be subject to appeal in court.
3. The expiration of the pre-trial investigation period should not necessarily lead to the closure of criminal proceedings. Therefore, the provisions of Article 284, part 1, clause 10 of the Criminal Procedure Code of Ukraine should be cancelled.

Considering the implications of this updated Criminal Procedure Code of Ukraine on existing NABU-SAPO cases, it’s important to note that, typically, procedural actions and decisions adhere to the Criminal Procedure Code effective at the start of such actions or the making of those decisions. Likewise, the admissibility of evidence is established based on the regulations outlined in this Code at the time of acquiring such information (same article, part two).

As we have already mentioned, “Lozovyi’s amendments” did not apply to the “old” criminal proceedings. However, such a reservation did not save from confusion in judicial practice.

Hence, merely revoking the “Lozovyi’s amendments” concerning the extension process of pre-trial investigation periods will impact those criminal cases where these investigation periods have been or will be extended, either from the date of these amendments’ implementation or thereafter. And this is also very good.

However, in criminal cases where the review of pre-trial investigation materials persists or where these materials have already been forwarded to the court, it’s highly probable that this revision of the Criminal Procedure Code of Ukraine will not exert any influence.

However, if the court loses the power to terminate criminal proceedings because of the elapsed pre-trial investigation period, the conversation will circle back to the admissibility of evidence gathered after this period’s expiration. This approach proves more effective than merely terminating criminal proceedings due to discrepancies in interpreting the provisions of the Criminal Procedure Code of Ukraine among the pre-trial investigation body, prosecutor’s office, and judges.

Hence, a comprehensive approach is imperative to enhance the provisions of the Criminal Procedure Code of Ukraine rather than settling for inadequate measures, as attempted by the law enforcement committee. Furthermore, such partial actions could potentially lead to further complications. Both local experts and our international partners are fully aware of this, as explicitly stated in the recent report by the G7.