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- Oleksii Meniv
Attorney, Attorney Partnership Shkrebets & Partners
Criminal Process – Changes and Peculiarities in Conditions of Martial Law
The progressive development of the system of criminal procedural legislation was for a long time aimed at increasing the role of institutions of control of pre-trial investigation and inquiry bodies, and ensuring the observance of human rights and freedoms, including through the system of judicial control. These mechanisms began to produce the expected effect in conditions of pre-war life.
However, the open armed aggression of the Russian Federation against Ukraine has made its corrections in all spheres of the country’s life and particularly every Ukrainian. Criminal procedural legislation was probably the earliest to feel the “shortage” of legal regulation associated with the impossibility of functioning of certain institutions and the impossibility of implementing certain mechanisms provided for by procedural law, as a result of the occupation of part of the country’s territory, the seizure of the premises of state institutions, including courts, prosecutor’s offices and bodies that carry out pre-trial investigation.
The first changes to the Criminal Procedure Code of Ukraine after the start of Russia’s full-scale invasion were adopted on 3 March, 2022. Thus, Laws of Ukraine No. 2108-IX and No. 2110-IX of 3 March, 2022 introduced changes related to the addition of Article 111-1 “Collaborative activity” to the Criminal Code of Ukraine and changes in the jurisdiction of certain criminal proceedings.
But the Law of Ukraine No. 2111-IX of 3 March, 2022 introduced changes that solved the urgent problems of ensuring the activities of law-enforcement agencies under martial law. The adoption of Law of Ukraine No. 2111-IX brought Ukraine’s law-enforcement agencies out of procedural collapse, when some courts actually ceased to function, access to electronic state registers was significantly hindered, and in some cases and in some territories such registers did not function at all.
It is obvious that the most significant changes in this case were those changes regarding the attribution to the powers of the prosecutor, in the presence of certain prerequisites, of issues related to applying measures to ensure criminal proceedings, such as pretext, seizure of property, granting of permits to carry out certain investigative actions, including secret ones, and also the power to choose a preventive measure in the form of detention for a period of up to 30 days. Although some of the mentioned provisions were enforced in the procedural process earlier, they were de facto localized in certain districts of Donetsk and Luhansk Regions.
Such changes were most significant because the path of limiting the powers of the prosecutor, which was overcome by procedural legislation, was not simple and quite a long one. Finally, the Criminal Procedure Code of Ukraine of 2012 set the record straight in this matter, and now we are once again forced to give such powers to the prosecutor’s office.
Thus, the provisions of Article 615 of the Criminal Procedure Code of Ukraine are not absolute and operate within the legal regime of martial law, state of emergency, Anti-terrorist Operation or measures to ensure national security and defense, repel and deter the armed aggression of the Russian Federation.
Thus, the provisions of Article 615 of the Criminal Procedure Code of Ukraine are not absolute and operate within the legal regime of martial law, state of emergency, Anti-terrorist Operation or measures to ensure national security and defense, repel and deter armed aggression by the Russian Federation and/or other states against Ukraine. In addition, the prosecutor receives such powers only if “there is no objective possibility for the investigative judge to exercise his/her powers within the time limits established by law.” However, the relevant provisions were based on the evaluation category without specifying precisely who should determine that there is no objective possibility of the investigative judge exercising his powers within the time limits established by law at a certain point in time.
The changes regarding the possibility of making a decision to start a pre-trial investigation by an investigator or a prosecutor without entering the relevant information into the Unified Register of Pre-Trial Investigations in the absence of technical access to such a register were definitely timely and urgent.
The changes provided by Law of Ukraine No. 2111-IX can be treated differently, especially by lawyers who provide defense in criminal proceedings. However, in our opinion, in conditions under which the relevant law was adopted, there was no alternative to such changes.
The Criminal Procedure Code of Ukraine as a whole and Article 615 in particular underwent many more changes related to the changes in the country’s military and political situation. In this context, it would also be appropriate to probably mention the most fundamental changes to the Criminal Procedure Code of Ukraine made recently.
Thus, on 3 May, 2022, the Law of Ukraine No. 2236-IX On Amendments to the Criminal Procedure Code of Ukraine and other Legislative Acts of Ukraine Regarding Cooperation with the International Criminal Court was adopted. The purpose of adopting this law, according to the explanatory note to the draft law is Regulation of the procedure for cooperation of the competent state authorities of Ukraine with the International Criminal Court in accordance with part 9 of the Rome Statute of the International Criminal Court.
Back in 2014-2015, the Verkhovna Rada of Ukraine had on two occasions raised the issue of Ukraine’s recognition of the jurisdiction of the International Criminal Court by submitting a statement from 25 February, 2014 No. 790-VII and adopting the Resolution of the Verkhovna Rada of Ukraine On the Statement of the Verkhovna Rada of Ukraine On Ukraine’s Recognition of the Jurisdiction of the International Criminal Court of the Criminal Court Regarding the Commission of Crimes against Humanity and War Crimes by High-ranking Officials of the Russian Federation and Leaders of the “DNR” and “LNR” Terrorist Organizations, which Led to Particularly Grave Consequences and the Mass Murder of Ukrainian Citizens of 4 February, 2015 No. 145-VIII.
In addition, after the beginning of the full-scale invasion of the Armed Forces of the Russian Federation on the territory of Ukraine, at the request of the state parties to the Rome Statute on 2 March, 2022, the Prosecutor’s- Office of the International Criminal Court made an announcement of an investigation into the situation in Ukraine regarding setting up a commission on war crimes, crimes against humanity and genocide on the territory of Ukraine.
The creation of a legal mechanism for the cooperation of state bodies of Ukraine with the International Criminal Court, which ensures that the guilty are brought to justice, also became an urgent issue.
The prospects of such cooperation for Ukraine are extremely profitable, in conditions where, on the one hand, there are obvious facts of the commissioning of hundreds and possibly thousands of war crimes on the territory of Ukraine and, on the other hand, the state must act within the confines of international procedures provided for by the Rome Statute by a participating state, which Ukraine is not. The mandate of the International Criminal Court essentially guarantees not only the formal recognition of the commission of war crimes on the territory of Ukraine by the armed forces of the Russian Federation and the recognition of certain persons as guilty of this, but also guarantees future compensation for damages.
Separate decisions aimed at adapting the criminal process to the realities of martial law were also adopted at the level of the Council of Judges of Ukraine and the Supreme Court of Ukraine.
Paragraph 10 of the recommendations of the Council of Judges of Ukraine regarding the work of courts in martial law, published on the website of the Council of Judges of Ukraine on 2 March, 2022, notes: if, under objective circumstances, a participant in the proceedings cannot participate in a court session in the mode of video conferencing using technical means , as defined by the Criminal Procedure Code of Ukraine, as an exception, such a participant should be allowed to participate in video conference mode using any other technical means, including their own.
On 3 March 2022, the Supreme Court published letter No. 1/0/2-22 “Regarding certain issues of conducting criminal proceedings under martial law”, paragraph 7 of which duplicates the content of the above provisions of the recommendations of the Council of Judges of Ukraine.
Despite such timely recommendations, the majority of judges reviewing criminal proceedings are not ready to allow a participant in the proceedings to participate in a court session via video conferencing using their own technical means, as such recommendations have not been enshrined in procedural law and are not a source of law.
Since the introduction of martial law on the territory of Ukraine, the Verkhovna Rada of Ukraine has adopted more than 15 legislative acts amending the Criminal Procedure Code of Ukraine.
Separate decisions aimed at adapting the criminal process to the realities of martial law were also adopted at the level of the Council of Judges of Ukraine and the Supreme Court.
It should also be noted that the development of criminal procedural legislation of Ukraine was determined not only by martial law. The Constitutional Court of Ukraine also made its contribution, opening a long debate on the constitutionality of the provision enshrined in paragraph 4 of the first part of Article 284 of the Criminal Procedure Code of Ukraine.
Thus, the specified provision determines that criminal proceedings are closed if “the law abolishing criminal liability for an act committed by a person has entered into force.” The decision of the Constitutional Court of Ukraine of 8 June, 2022 No. 3-р(II)/2022 declared the specified provision to be unconstitutional.
In adopting the above decision, the Constitutional Court of Ukraine assumed that the closing of criminal proceedings against a person without his or her consent and effective legal protection, as a result of which there is doubt regarding a person’s innocence, the impossibility of rehabilitating a person after such closure is violation of the constitutional right to judicial protection.
In national judicial practice, the grounds for closing criminal proceedings are, as defined by Clause 4 of the first part of Article 284 of the Code, considered non-rehabilitative grounds. The Supreme Court, as part of the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation, believes that “given the non-rehabilitative nature of this ground, taking into account the fact that its application actually establishes the involvement of a person in the commission of a criminal act, the person against whom the criminal case was closed in connection with the elimination by the new criminal law of criminality and punishment of the act incriminated against her, she should have the opportunity to exercise his or her right to legal protection in court, and the court, in turn, to check and assess the legality and reasonableness of the procedural decisions adopted in this proceeding, in which the proposed person is suspected of a crime on the basis of materials collected both at the pre-trial investigation stage and at the trial stage” (decision of 11 December, 2019 in case No. 153/1289/18).
At the same time, in connection with the non-rehabilitative nature of the grounds for closing criminal proceedings, as established in paragraph 4 of the first part of Article 284 of the Code, for persons to whom such grounds are applied, at the legislative level, there is no possibility of compensation for damage caused by the illegal actions of the authorities investigative activities, pre-trial investigation bodies, the prosecutor’s office and the court, as well as certain restrictions on such persons.
Summing up, it should be noted that criminal procedural legislation has undergone significant changes since the beginning of the open armed aggression by the Russian Federation against Ukraine, primarily related to the challenges caused by the state of war and the occupation of certain territories of Ukraine. However, the progressive development of the legislative system, particularly criminal procedural legislation, resumed as soon as more comfortable conditions appeared for the work of state institutions. At the moment, such changes can be characterized as positive, and their impact on law-enforcement activities enabled the minimizing of negative consequences of the invasion and stabilizing the processes of pre-trial investigation and judicial proceedings of criminal proceedings.