Optimization of Criminal Process through MPs’ Eyes

Authors: Pavlo Demchuk, Legal Advisor at Transparency International Ukraine,

Andrii Tkachuk, HACC Case Monitoring Lawyer at Transparency International Ukraine.

On November 2, 2023, MPs Maksym Pavliuk, Hryhorii Mamka, Bohdan Torokhtii, and others registered draft law No.10206, which concerned a considerable number of provisions of criminal procedural legislation.  

In the explanatory note, the authors declare their desire to improve certain provisions of the Criminal Procedural Code of Ukraine (CPC), as well as to ensure faster receipt and preservation of evidence in criminal proceedings. Let’s dwell on those changes that can significantly influence the consideration of corruption cases.

How is the resolution of the issues to be changed taking place today?

As of now, in key issues proposed to be changed by MPs, the provisions of the criminal procedural law regulate relations as follows:

• the conditions for applying the general principles of criminal proceedings are based on the doctrine of criminal procedural law if the provisions of the CPC of Ukraine do not regulate or ambiguously regulate the issues of criminal proceedings;
• there are no terms for conducting preparatory proceedings and court proceedings;
• all interim measures shall, as a general rule, be selected by the judge. The judge shall also grant permission for temporary access to things and documents;
• the court of appeal may order a new trial in the court of the first instance;
• witnesses shall be engaged, for the most part, in such investigative actions as a search, inspection, etc.;
• the terms for resolving the issue of recusal and compliance with the requirements of Art. 290 of the CPC (that is, the disclosure of pre-trial investigation materials) are not set;
• evidence is considered inadmissible, as a general rule, if it is obtained as a result of a significant violation of human rights and freedoms;
• the court decision on the results of consideration of the motion to cancel the decision on the imposition of a monetary penalty cannot be appealed, nor can the decision to refuse to grant temporary access to things and documents;
• the conclusions of the High Council of Justice made in connection with the consideration of motions for the detention of a judge, taking them into custody, suspension from justice due to criminal prosecution are not formally binding, including in relation to the circumstances established by the HCJ. 

The draft law addresses other issues as well, but we will only consider those we believe to be important to us.

What is proposed to be changed?

As we have indicated earlier, the draft law concerns a considerable number of provisions of the CPC of Ukraine. The authors propose to introduce the following changes:

• to introduce a mechanism for selecting an interim measure in the form of a personal commitment by the prosecutor or at the motion of the investigator, inquirer;
• to abandon the practice of appointment by the court of appeal of a new trial in the court of first instance, as well as to move away from the “institution of witnesses” and replace it with mandatory video recording of the procedural action;
• to determine the terms for resolving the issue of recusal; no later than the next working day after the receipt of a statement;
• to limit the deadlines for fulfilling the requirements of Art. 290 of the Criminal Procedural Code of Ukraine to 15 working days with the possibility of extension by the investigating judge;
• to simplify and optimize procedures for temporary access to electronic information systems or parts thereof, mobile terminals of communication systems;
• to determine that evidence is deemed inadmissible if it is obtained in violation of the procedure established by this Code;
• to provide an opportunity to contest the court decision based on the results of consideration of the motion to cancel the decision on the imposition of a monetary penalty, as well as the decision to refuse to grant temporary access to things and documents;
• the conclusions of the High Council of Justice made in connection with the consideration of motions for the detention of a judge, taking them into custody, suspension from justice in connection with criminal prosecution will become binding, and the same will apply to the circumstances established by the HCJ.

MPs also propose to improve the speed of the trial due to changes in the order of examination of evidence, mechanisms for the appearance of the parties, etc.

What are the risks of the proposed changes?

It is important to understand that introducing any changes to the legislation shall be done precisely to solve certain problems. The first and integral stage of analysis and development of public policy is the recognition (identification) of a social problem because if the problem does not exist, then there is no logical basis for any actions by public authorities to solve it.

From most of the changes analyzed in this section, it is not clear which problems they are aimed at solving. This is not indicated in the explanatory note, and a comprehensive analysis of the draft law suggests that such an update can only adversely affect the performance of the anti-corruption infrastructure.

Expanding the concept of “investigating judge” and increasing the number of grounds for recusal

The draft law amends the definition of the term “investigating judge,” supplementing it as follows: “and exercise their powers as judges defined by this Code at the stage of pre-trial investigation of criminal proceedings.” The authors also supplement the content of the provisions “inadmissibility of repeated participation of a judge in criminal proceedings” as follows: “and adopted in this regard any of the decisions relating to such an investigation.” 

In our opinion, such an expansion of the content of the investigating judge concept, together with the expansion of the provisions on the inadmissibility of repeated participation of a judge in criminal proceedings, is associated with the desire of the authors of the draft law to artificially reduce the number of HACC judges who will have the right to consider criminal proceedings on the merits. 

The fact is that many HACC investigating judges can be engaged in judicial control in large criminal proceedings with many episodes and defendants. Therefore, all of them cannot carry out the consideration of the case on the merits. 

However, when the HACC judge was not engaged in the pre-trial investigation as an investigating judge but considered the recusals of the judges, this was not related to the assessment of the materials of the criminal proceedings, in particular, on the reasonableness of the suspicion. Another example: the judge could decide on the consideration of the motion to reconsider the decision under newly discovered circumstances, and this is not provided for by procedural law at the stage of pre-trial investigation. 

Statements of recusals on these grounds were very common, for example, in the case of “KAC films.” In general, the composition of the court to consider this proceeding was quite complicated and lasted more than 3 months. Therefore, these changes may put an end to the possibility of consideration of complex and voluminous criminal proceedings in the HACC.

Changing the content of the basis of legality

The authors of the draft law propose that gaps or inaccuracies in the CPC of Ukraine should be resolved solely in the interests of the defense and not worsen its procedural situation. We consider this wording of the conditions for solving the quality problems of the CPC of Ukraine to be inappropriate. The tool provided for in Article 9, part 6 of the CPC of Ukraine is aimed at overcoming the gaps in this document and is actively used by the courts of Ukraine, including the Supreme Court. 

The doctrine of criminal procedure has developed conditions for the admissibility of applying procedural analogy in criminal proceedings. Namely:

• the case provided for by the criminal procedural law must be homogeneous with the one to which the law is applied by analogy. That is, a situation that is resolved by means of a procedural analogy should be characterized by the same or similar features and attributes as the one regulated by law;
• the application of the procedural analogy should take place in strict accordance with the tasks of the criminal proceedings (Article 2 of the CPC). At the same time, both the tasks specific to all stages of the criminal process, and for each of them in particular, must be performed;
• compliance with the principles of criminal procedure. The need to introduce such a condition is due, in particular, to the fact that only proper observance of the principles of criminal proceedings can ensure the fulfillment of its tasks. Violation of this condition may be grounds for annulment of the court decision;
• the use of a procedural analogy should in no case limit the procedural rights of participants in the process or impose on them obligations not provided for by law;
• by using a procedural analogy, the bodies of inquiry and pre-trial investigation, the prosecutor, and the court, observing the procedure for proceedings in a criminal case, should not perform procedural actions not provided for by the provisions of criminal procedural law.  

Narrowing such conditions to one: “using it in the interests of the defense and non-worsening the procedural position of the defense” can lead to problems in law enforcement with the leveling of the ability to perform the tasks of criminal proceedings.  

For example, the court will not be able to recognize certain behavior of the defense party as abuse of procedural rights, except for cases that are expressly defined in the CPC of Ukraine. However, the Supreme Court in its ruling of May 30, 2018, stated that although the CPC of Ukraine did not have a general provision on the prohibition of abuse of procedural rights, such a prohibition is a general legal principle that applies to all areas of law.  

There may still be many such cases, and the court will not be able to effectively solve the problems arising during the judicial control over the observance of human rights, consideration of criminal proceedings on the merits, review of court decisions.

New grounds for transferring the case from the HACC to another court

Legislators propose a new basis for transferring criminal proceedings to another court: “if the case has ceased to be the subject-matter jurisdiction of the High Anti-Corruption Court.” 

The draft law does not detail which cases are meant when the case ceases to be the subject matter of the HACC. However, the subject-matter jurisdiction is defined in Art. 33-1 of the CPC of Ukraine. Therefore, we can assume that it means those cases when the criteria that allow the case to be attributed to the jurisdiction of the HACC have ceased to exist in criminal proceedings. 

Articles 33-1 and 216 of the CPC of Ukraine link the subject-matter jurisdiction of the HACC with three key criteria: the legal qualification of the act, the subject matter, and the amount of damage or improper advantage. These data are established considering the circumstances of the criminal proceedings.  

Therefore, the fact that the case has ceased to be the subject-matter jurisdiction of the HACC should be established, considering the procedural documents that determine the wording of the circumstances under investigation or incriminated to the person. 

At the pre-trial stage, where the serving of a suspicion notice is quite dynamic, this does not pose a particular problem since the prosecution can appeal to the investigating judge of another court in the case of establishing the lack of jurisdiction of the HACC regarding the case. But when considering an indictment in court, we see real risks in this.  

In particular, clause 20-1, paragraph 4 of the Transitional Provisions of the CPC of Ukraine states that in case of a change in the accusation in the court during the hearing of the case by the HACC, such criminal proceedings continue to be considered by this court. Therefore, the proposed changes are inconsistent with the current provisions of the CPC of Ukraine.  

At the same time, such provisions are an additional guarantee of independence, and they also ensure the non-interference of third-party stakeholders in the hearing of cases of high-profile corruption. The Criminal Cassation Court within the Supreme Court has already stated that the authority of the HACC to decide whether the case is within its jurisdiction is an additional guarantee against interference. In the introduction of the above innovations, we see a threat to this guarantee. 

Such a statement, in particular, is confirmed by cases where the case files on individual defendants were separated. The consequence of this was the “loss” of the criteria for the jurisdiction of the HACC. We have witnessed this many times. 

In such cases, the HACC Appeals Chamber was authorized to decide on the issue of jurisdiction. Judges of the appellate instance, assessing the expediency of transferring the case to another court, in most cases approached this issue substantively. This was manifested in the fact that in the absence of the criteria of Art. 33-1 of the CPC of Ukraine in the separated case and their presence in the case from which these episodes were separated, the court checked their connection, namely whether crimes were committed with a common intent, and whether the factual circumstances of the case were related to each other. 

The established judicial practice of the HACC AC positively reflects the implementation of the provisions of clause 20-2, paragraph 3 of the Transitional Provisions of the CPC of Ukraine regarding the mandatory assessment of the potential negative impact on the proceedings in case of its separation. The new basis for the transfer of the case in the context of the separation of materials of criminal proceedings will allow transferring the separated cases from the HACC to another court not because of a substantial assessment of the connection between the proceedings, but because of formal grounds: non-compliance with the criteria of Art. 33-1 of the CPC of Ukraine after the separation.  

This happened in the case of the critically assessed decision of the HACC AC in the case of the illegal exclusion of the Samara-Western direction pipeline from state ownership. The materials on the ex-deputy director of SE Ukrainian State Research and Design Institute of Nitrogen Industry and Organic Synthesis Products were separated into a case; thus, the case lost the criteria for the jurisdiction of the HACC. The HACC AC decided on its subject-matter non-jurisdiction, so it transferred the case for another court to hear, which two out of five judges disagreed with. 

This novelty will affect the hearing of criminal proceedings in the HACC. In our opinion, the new grounds for transferring the case to another court is aimed at slowing down the hearing of some cases and neutralizing the continued progress of the HACC in their consideration.  

The changes will allow delaying the consideration, since the defense will be able to systematically initiate the resolution of the issue of jurisdiction (in the course of establishing the circumstances of the case). In the worst-case scenario, the introduction of these changes will cause cases to be transferred to another court, which will oblige the new court to start hearing them again. 

For these reasons, the institutional independence of the HACC may seriously weaken due to the formation of a space for potential abuses not only by the prosecution but also by the defense.

Excessively simplistic attitude towards assessing the admissibility of evidence

The draft law proposes to amend Article 87, part 1 of the CPC of Ukraine on the inadmissibility of evidence, more precisely, to expand the range of evidence that should be recognized as inadmissible. In addition to evidence obtained with a significant violation of human rights and freedoms, MPs want the court to declare inadmissible any evidence obtained contrary to the CPC of Ukraine. 

This provision is perhaps the most dangerous among those proposed because it directly affects the resolution of the case on the merits.  

In its content, it brings to the fore one of the equivalent elements of the task of criminal proceedings, relating to the application of due legal procedure during criminal proceedings. At the same time, neglecting the content of other elements, in particular the protection of the individual, society, and the state from criminal offenses. 

The draft law proposes to put due legal procedure as an end in itself of criminal proceedings. Although it cannot be such since it is only an important condition for achieving the results of criminal proceedings. This is the position of the Grand Chamber of the Supreme Court in its resolution dated August 31, 2022. 

The existing criterion of “inadmissibility” of evidence is fully consistent with the practice of the ECHR since it requires the national court to approach the assessment of evidence for admissibility fairly, that is, without formal reference to the violation of the procedure for their receipt. The evaluation of evidence for admissibility cannot be based solely on the formal requirements of the law but should be comprehensively assessed to balance the interests of society and the rights of suspects and accused. 

This innovation poses a serious risk to many criminal proceedings, including those in which there are victims, and at the same time, it cannot solve any social problem. Its introduction can cause the groundless acquittal of guilty persons, even due to minor violations in the order of obtaining evidence.

The procedure for extending the terms of pre-trial investigation

The authors of the draft law propose to establish a sequence according to which the terms of pre-trial investigation in criminal proceedings should be extended. Namely, the investigator will first have to contact the head of the prosecutor’s office and extend it up to 3 months. Then, after the approval of the head of the prosecutor’s office, the investigating judge should be applied to for an extension of up to 6 months. Finally, after the approval of the Prosecutor General or their deputies, the investigating judge should be applied to for extensions of up to 12 months. 

MPs also propose introducing consequences for non-compliance with this sequence: the closure of criminal proceedings. 

We consider such changes unreasonable and dangerous for the existing criminal proceedings.  

Firstly, the entity to extend the pre-trial investigation, according to the concept laid down in the CPC of Ukraine, depends on the complexity of the proceedings. If this is an exceptional difficulty, the investigating judge extends it up to 12 months, a special difficulty — up to 6 months, and just a difficulty authorized the head of the prosecutor’s office to extend it up to 3 months. That is, it makes no sense in an extension of the term by the head of the prosecutor’s office if the pre-trial investigation body considers this criminal proceeding to be extremely complex. 

Secondly, the consequence of the closure of criminal proceedings due to non-compliance with the sequence of extension of the pre-trial investigation is disproportionate to the violation of the provisions of the Criminal Procedural Code of Ukraine, which is the basis for its application. After all, judicial control over the terms of the pre-trial investigation is carried out. Such a violation of sequence does not have a significant impact on human rights. 

Thirdly, it is unknown how the proposed changes will be applied to existing criminal proceedings. If the participants file motions for their closure en masse due to the fact that the pre-trial investigation body extended the pre-trial period in the wrong sequence, this may cause an even greater problem than the application of the “Lozovyi’s Amendments” in joint criminal proceedings. 

At the beginning of December 2022, MPs excluded the provision on the calculation of the terms of pre-trial investigation in “factual” cases. So, a return to the previous model could wreak even more havoc.

Establishment of terms of court proceedings

The indisputable innovation of this draft law is the establishment of the terms of preparatory proceedings and court proceedings. Thus, the authors propose to conduct preparatory proceedings no later than 15 working days, and the trial — no later than one year in court proceedings for minor crimes, three years for grave and five years for special grave crimes. 

The establishment of clear terms for the trial of criminal cases is not common in other states. This is probably due to the fact that in criminal proceedings, priority is given to the completeness of the trial and not to its speed. Otherwise, the stakes are too high. 

Of course, this does not deny the need to solve the problem of the excessive duration of criminal proceedings. The solution to these problems is proposed in the analysis of the practice of the European Court of Human Rights, as well as the implementation of court decisions by individual member states of the Council of Europe. 

A special study on these issues outlines the two most common approaches that aim to comply with Council of Europe standards on the reasonable duration of criminal proceedings:

• the possibility of obtaining some form of compensation for failure to comply with reasonable terms;
• introduction of mechanisms by which a suspect can file a motion to expedite the proceedings after an indictment. 

We believe that the domestic criminal justice system should also move in this direction. Moreover, the declaration of the terms of court proceedings may not really impact the implementation of these rules in practice. And those involved in criminal prosecutions will have another argument about Ukraine’s violation of its obligations in this area.

The binding nature of the conclusions of the High Council of Justice

The authors of the draft law propose to supplement the provisions of Art. 482 of the Criminal Procedural Code of Ukraine, which defines the features of the procedure for bringing to criminal liability, detention, and the imposition of an interim measure in relation to a judge. The authors of the draft law propose that decisions of the High Council of Justice taken in connection with the prosecution of judges should be mandatory and not subject to appeal, including regarding the circumstances established by the HCJ. 

In September 2020, the HCJ returned the motion of then-Prosecutor General Iryna Venediktova on the temporary suspension of Judge Pavlo Vovk from the administration of justice. In this decision, the HCJ members established that the said motion was filed without complying with the requirements established by law; in particular, it concerned a person who did not acquire the status of a suspect. The same decisions were adopted regarding the other defendants in this case.  

These conclusions of the HCJ are actively used by the defense in the case of “KAC films.” In fact, the changes proposed by the MPs can strengthen the defense’s position. 

However, in the criminal process, the defining rule is that only a decision of a national court or an international judicial institution that has entered into force has prejudicial significance for the court, and it establishes a violation of human rights and fundamental freedoms (Article 90 of the CPC of Ukraine). Even more so, it is only in the issue of determining the admissibility of evidence. The court, considering the criminal case, must independently assess the remaining circumstances.

Other important changes

The authors also propose some changes that, in our opinion, are inappropriate.  

For example, MPs propose to review in the appellate instance the rulings adopted on motions to cancel the monetary penalty, as well as on the refusal to grant temporary access to things and documents. In our opinion, this may significantly increase the burden on the courts of appeal.  

For example, in the proceedings of the HACC AC in the first half of 2023, there were 617 appeals and materials. In the proceedings of the first instance of the HACC during this period, there were 1,093 motions for temporary access to things and documents, of which 106 motions were denied. If an opportunity is provided to challenge them, this will increase the burden on the HACC AC by about a third of the existing number of appeals and number of materials. 

MPs also want to grant only the Prosecutor General (or the acting prosecutor) the authority to change the suspicion notice, the indictment in court, bring additional charges in court against special entities, for example, MPs, judges. This may affect the efficiency and speed of implementation of these powers by SAPO prosecutors. Let us remind you how the Prosecutor General’s Office delayed signing suspicion notices in the PrivatBank case. 

In addition, the requirement proposed by the authors of the draft law for a separate consideration and resolution of the motions of the participants in the court proceedings by the court may lead to a delay in the process. Today, the court can decide on the procedure for considering such motions: whether to consider them all together in the deliberation room or separately regarding each participant. It is quite dangerous to expect that the parties to the court proceedings will not object to the simultaneous consideration and resolution of such motions because they may be interested in delaying the court proceedings; therefore, they will support the prolonged consideration of these motions by the court.

What do we recommend?

This draft law contains significantly dangerous provisions that can undermine the effectiveness of the criminal justice system. They invalidate the probable positive effect of those proposals that can really contribute to the optimization of the criminal process. 

Therefore, Transparency International Ukraine recommends rejecting draft law No.10206.