The government proposes to partially cancel the “Lozovyi’s amendments”: Legal Analysis of Draft Law No. 12367

After contentious debates and attempts to obscure the cancellation of the “Lozovyi’s amendments” in the draft law — which was criticized for targeting whistleblowers — the government has registered draft law No. 12367 to address several procedural issues in criminal proceedings.

The development of this regulation takes place in the context of Ukraine’s fulfillment of international obligations, in particular, the structural lighthouse, Memorandum on Economic and Financial Policy with the IMF, on ensuring the proper independence of SAPO. In general, it was due to the “Lozovyi’s amendments” that there were attempts to close high-profile cases, in particular, the cases involving Oschadbank, Rotterdam+, and Odesa businessman Alperin.

Brief conclusions

• The draft law includes amendments that TI Ukraine evaluates positively. For example, the draft law proposes excluding the automatic closure of criminal proceedings after the expiration of the pre-trial investigation period and expanding SAPO’s powers to create joint investigative teams.
• Certain provisions may be declared unconstitutional, such as restoring the authority of heads of prosecutor’s offices to extend pre-trial investigation terms to six months. Some provisions may pose practical challenges, such as the incomplete regulation of international legal assistance concerning extradition.

What we suggest:

• to ensure proper procedural guarantees, it is necessary to retain judicial control over extending the pre-trial investigation period to six months;
• to evaluate whether improving the mechanism for addressing violations of reasonable investigation deadlines, as defined in Article 308 of the Criminal Procedure Code of Ukraine, would be more effective than creating a new model of judicial control over the prosecutor’s compliance with pre-trial investigation periods;
• to fully grant SAPO autonomy in the field of international cooperation, it is necessary to designate it as a central body and amend several Ukrainian laws on the ratification of international treaties, such as the Law of Ukraine “On Ratification of the European Convention on Extradition of Offenders,” among others.

What is it like now?

The common deadlines for pre-trial investigations are defined in Article 219 of the Criminal Procedure Code of Ukraine. Now, when the deadlines of a pre-trial investigation expire, prosecutors are required to act in accordance with Articles 219, 280, and 294 of the Criminal Procedure Code of Ukraine, which outline the deadlines, procedures for extensions, and general provisions for concluding a pre-trial investigation.

Courts may close criminal proceedings if the pre-trial investigation period, as defined in Article 219 of the Criminal Procedure Code of Ukraine, has expired after the person has been notified of suspicion. However, this cannot not be done if we are talking about notifying a person of suspicion of committing a serious or particularly serious crime against life and health.

If reasonable time limits are not observed, participants in the proceedings may appeal to a higher-level prosecutor in accordance with Article 308 of the Criminal Procedure Code of Ukraine. A prosecutor’s decision to dismiss an appeal may be appealed to the investigating judge.

Amendments proposed by the government

The Cabinet of Ministers seeks to withdraw and amend specific provisions of the Criminal Procedure Code of Ukraine, including the introduction of new procedural mechanisms. The following amendments are proposed, among others:

• supplement Article 219 of the Criminal Procedure Code with a provision obligating the prosecutor to perform one of the actions specified in Article 283, Part 2 of the Criminal Procedure Code of Ukraine (close the case, send an indictment, or submit a request for exemption from liability to the court) no later than the last day of the pre-trial investigation period;
• delete Article 284, Part 1, paragraph 10 of the Criminal Procedure Code of Ukraine regarding the closure of criminal proceedings due to the expiration of the pre-trial investigation period;
• introduce a new mechanism by which the investigating judge will consider motions on whether the prosecutor should complete the pre-trial investigation;
• grant SAPO the authority to create joint investigative teams and send extradition requests in criminal proceedings to NABU;
• establish a new basis for disciplinary liability of prosecutors: failure to make a procedural decision or to perform a procedural action within a specified time frame.

What provisions remain controversial?

Even though the government’s draft law No. 12367 is more balanced than the one promoted by individual parliamentarians (No. 10242), it still contains imperfect provisions.

1.   Reducing the level of procedural guarantees when extending the investigation period

That is a new provision that was not included in draft law No. 10242. In our opinion, restoring the authority of regional prosecutors, their deputies, and deputies of the prosecutor general to extend pre-trial investigation periods to six months poses a significant risk of violating the rights of the defense.

In contrast to the current judicial control, which provides an independent and objective assessment of the validity of extending the deadline, the proposed model allows such decisions to be made by a representative of the prosecution. This undermines the principle of adversarial proceedings and the equality of parties in criminal litigation, as the prosecutor, regardless of their position, inherently holds a procedural interest in the case.

Such a provision raises legitimate concerns regarding its constitutionality, particularly considering the prohibition against narrowing the content and scope of existing rights and freedoms when enacting new laws or amending existing ones.

Therefore, to ensure proper procedural guarantees, we recommend retaining judicial control over extending the pre-trial investigation period.

 2. Heightened burden on investigative judges

The government, like the MPs in draft No. 10242, still proposes to grant the defense party, the victim, and other persons whose rights are restricted during the pre-trial investigation the right to motion that the prosecutor decide whether to terminate the pre-trial investigation after its deadlines have expired. According to the draft law, such motions will be considered by an investigating judge of a local court or, in cases involving NABU/SAPO, by an investigating judge of the HACC.

It is proposed that consideration take place no later than five days from the date the motion is received. The failure of duly notified parties to attend the meeting will not prevent such consideration. If the motion is granted, the investigating judge will require the prosecutor to decide on either completing the investigation with the disclosure of case materials or terminating the proceedings.

It is crucial that under the new draft law, such a ruling cannot be issued if, at the time of the motion’s consideration, the materials have already been disclosed in accordance with Article 290 of the Criminal Procedure Code.

The reasons for creating such a mechanism are clear: there are already cases when pre-trial investigation bodies seize property, for example, businesses, but no pre-trial investigation takes place. However, to avoid this, there is already a mechanism for appealing against the failure of the pre-trial investigation body to comply with reasonable time limits, which is contained in Article 308 of the Criminal Procedure Code of Ukraine. It states that participants in criminal proceedings can appeal against violations of reasonable investigation deadlines to a higher-level prosecutor, who must consider the complaint within three days and provide mandatory instructions. The prosecutor’s decision to dismiss a complaint regarding non-compliance with reasonable time limits by an investigator, inquirer, or prosecutor during a pre-trial investigation may be later appealed to the investigating judge. The need to improve these norms was also stated by the judges of the Supreme Court.

Moreover, the inclusion of provisions on the new mechanism proposed by the government into the Criminal Procedure Code of Ukraine creates potential opportunities for misuse of these norms. This will impose a substantial additional burden on the judicial system, particularly on the HACC, which is already overwhelmed by the responsibility of handling complex corruption cases. Each such motion will necessitate a separate court session involving a detailed examination of the materials related to the investigation’s deadlines and their potential extension.

In addition, rulings issued as a result of such sessions cannot be appealed through the appellate procedure. This deprives prosecutors of the procedural means to address potentially unjustified decisions, which may adversely impact the quality of investigations into complex corruption schemes.

Therefore, this provision should be removed, and the mechanism outlined in Article 308 of the Criminal Procedure Code of Ukraine should be refined, with amendments discussed through the broad involvement of stakeholders.

3. Incomplete regulation of SAPO’s powers in relation to international legal assistance

The proposed amendments to the Criminal Procedure Code of Ukraine regarding the powers of SAPO in the field of international legal assistance are insufficient for the full functioning of this mechanism. For the effective implementation of such provisions, it is necessary to amend the laws on the ratification of relevant international treaties, which define the authorized bodies for communication with foreign partners. Without such amendments, it will be difficult to practically implement international cooperation.

International cooperation in criminal cases is regulated not only by the Criminal Procedure Code of Ukraine but also by international treaties and laws of ratification. Each such international treaty imposes on Ukraine the obligation by its ratification law to determine the state agency responsible for communication with foreign bodies. It is international treaties that guide foreign law enforcement agencies when assessing the legality of a request to them.

Thus, granting SAPO autonomy in the field of international cooperation in criminal cases should be accompanied by amendments not only to the Criminal Procedure Code of Ukraine but also to several laws of Ukraine on the ratification of international treaties, including the Law of Ukraine “On Ratification of the European Convention on Extradition,” the Law of Ukraine “On Ratification of the United Nations Convention Against Corruption,” and others. 

Otherwise, a similar issue to what NABU faced before amendments to the relevant ratification laws were introduced will arise.

Conclusions

In light of the above, TI Ukraine recommends adopting this draft law, provided it undergoes necessary revisions.

The regulation proposed by the government includes provisions that are crucial for strengthening and advancing the anti-corruption infrastructure. For example, in the part of excluding the automatic closure of criminal proceedings after the expiration of the pre-trial investigation period and expanding SAPO’s powers to create joint investigative teams.

Nevertheless, certain provisions are problematic and contain risks, which we propose to address and refine as follows:

• to ensure proper procedural guarantees, it is necessary to retain judicial control over extending the pre-trial investigation period to six months;
• it is necessary to evaluate whether improving the mechanism for addressing violations of reasonable investigation deadlines, as defined in Article 308 of the Criminal Procedure Code of Ukraine, would be more effective than creating a new model of judicial control over the prosecutor’s compliance with pre-trial investigation periods;
• to fully grant SAPO autonomy in the field of international cooperation, it is necessary to designate it as a central body and amend several Ukrainian laws on the ratification of international treaties, such as the Law of Ukraine “On Ratification of the European Convention on Extradition of Offenders,” among others.