Recent amendments to the Criminal Procedure Code of Ukraine if signed by the President, will paralyze activities of investigatory authorities (04.10.2017)
The Draft Law no. 6232 on amendments to the Criminal Procedure Code of Ukraine, adopted by Ukrainian Parliament in second reading on October 3, contains a number of contradictions that may paralyze the work of investigatory authorities in case the amendments to the Code come into force.
One of the most concerning amendments being the one to the Article 219 of the Criminal Procedural Code (CPC) of Ukraine. It provides a limiting of the terms of pre-trial investigation of gravest and grave crimes (thereto corruption offences) up to 6 months from the moment of registering a criminal proceeding in the Unified Register of Pre-trial Investigations (URPI), with the possibility to prolong the investigation for another six months only by a court decision. If during this time noone is notified of suspicion, then, accoring to the suggested amendment, the proceeding should be closed. The problem is that according to Ukrainian legislation a criminal proceeding must be entered to URPI during 24 hours since a report of allegedly committed crime is received, disregarding whether persons involved are known or not.
We emphasize that the pre-trial investigation of the corruption schemes in specified terms is impossible. For example, during the investigation of the schemes involving the withdrawal of funds abroad, the NABU Detectives usually find out a chain consisting of 7–10 units in average, through which the stolen funds from Ukraine are transferred to the final beneficiaries. In order to obtain evidence, the Detectives analyse the banking operations of the enterprise at every chain. Under these circumstances only the disclosure of banking secrecy under the Article 164 CPC of Ukraine would take at least 7–10 months. Saying nothing of further expert examinations lasting much more than six months.
In addition, the investigation of many proceedings as of the top-corrupt officials often requires the involvement of international legal assistance. The process is governed by the bilateral or multilateral treaties, as well as by the legislation of the countries to which requests are addressed. The execution of the requests in certain proceedings lasts much longer than six months.
Another risk associated with the amendment is that they can be used by criminals of the ongoing investigations. Through the court, they may require the closure of current proceedings in which the length of pre-trial investigation exceeds six months as the proposed amendment to article 219 do not contain any transitional provisions, therefore, the final decision on the issue will be made by court.
And if the caution that the abovementioned amendment can “bury” the investigation of corruption crimes is insufficiently convincing it should be noted that the same fate will befall the investigation of other grave and gravest crimes such as murder, rape, etc. If the crime is not disclosed within 6 months after the entering of the information into the URPI, the investigation will be automatically closed.
The amendments to Article 132, 234, 242 and 303 of the CPC of Ukraine are also rather concerning.
According to the current legislation, the investigator has a possibility to fill a request for a choosing a preventive measure, arrest a property, or removing a suspect from a post to a court at the location of a pre-trial investigation authority. But the amendments to the Article 132 of the CPC of Ukraine in Draft Law N6232 provide making court decisions exclusively in court at the location of registration of the pre-trial investigation authority as a legal entity. It means that the Detectives from the Odessa, Kharkiv or Lviv Territorial Offices of the NABU will need to go to Kyiv to receive every court decision (and there are hundreds of them in a criminal proceeding) and wait for the court decision that may last up to a week. A similar situation will arise to the investigators of any district or city police department, since the status of a legal entity is limited to the Main Departments of the National Police in the regions.
The changes to Article 234 of the CPC of Ukraine for conducting a search are also found weird. The author of the changes proposed to oblige the investigator to request to the owner for voluntarily providing the searched items, objects or equipment before applying for a court permit. In case these changes come into firce, there’s a high probability that after the receipt of such request from an investigator, documents, things, information will be destroyed or hidden, therefore the filing a permit for a search in court will be useless.
The procedure of the appointment and conducting of the expert examination will be changed according to the amendments to Article 242 of the CPC of Ukraine. It is established that only an investigating judge has an authority to appoint the examination within the scope of the pre-trial investigation, and moreover, the judge will determine the expert and expert institution, and have a power not to consider or deny the expert in identifying specific question for the examination. It is unclear how the judge will decide on expediency or inexpediency of conducting a certain examination within 5 days for consideration of a detective’s petition, if the size of the NABU proceedings can be 200 volumes, for example. In addition, the amendment creates conditions for total control over the conduct of pre-trial investigation through corrupt judges.
The amendments to the Article 303 CPC are also very controversial. They provide the authority for the judges to cancel the notice of suspicion and status of a suspect in a criminal proceeding. The amendment despites the fact that according to Chapter 22 of the CPC of Ukraine a notice of suspicion can not be referred to the decision or action of the investigator, thus the notice of suspicion can not be appealed and cancelled. In case the abovementioned amendments come into force, it will create conditions for the abuse of rights by suspects and defenders and, as a result, will delay the pre-trial investigations which are already being limited.
That is far from complete list of all controversies, which contains the Draft Law N6232, adopted by the Verkhovna Rada on October 3.
The National Bureau is convinced that adopting such amendments to the criminal procedural legislation will block the investigation of grave and gravest crimes and make it impossible to bring the perpetrators to justice.
The National Bureau calls on the President of Ukraine to prevent blocking the work of investigatory authorities by vetoing contradictory changes to the Criminal Procedure Code.