11.12.2012

On 20 November, a new Code of Criminal Procedure (the “New Code”) came into force in Ukraine. This is the first time that the rules of criminal procedure have been entirely changed in post-Soviet Ukraine. The New Code repeals and replaces the previous Code of Criminal Procedure, which had been in force from 1961.

The New Code introduces far-reaching changes to the procedural framework for beginning criminal proceedings and for pre-trial investigations and trials. It has been widely praised by the legal community in Ukraine for the much more equal balance it strikes between the interests of prosecutors and defendants, and the greater control it gives defendants over the course of criminal proceedings. Until now, this control lay almost entirely in the hands of the prosecution.

One of the most significant changes is the abolishment of the instigation of a criminal case as a formal stage in criminal proceedings. Formal instigation of a case was a necessary precursor to beginning pre-trial investigations but was dependent on the evidence already available at this early stage. This meant that law-enforcement authorities were often reluctant to begin criminal proceedings unless the initial evidence made it abundantly obvious that a crime had been committed. The New Code instead places an obligation on the investigator or prosecutor to begin pre-trial investigations immediately after the criminal offence has been reported or discovered by the competent authorities, and in any event no later one day later than this. This should do much to streamline the criminal process and improve its efficiency.

The New Code also introduces the concept of a “notice of suspicion”. Previously, a person who was suspected of committing a crime did not receive any formal notice of this. Under the New Code, the notice of suspicion must be issued in writing and delivered to the person suspected.

The New Code expands the measures that may be used to restrain an individual. A defendant may now be placed under house arrest, or released against a personal undertaking or guarantees in writing by third parties. The authorities may replace a less strict form of restraint with a more severe one, if a defendant violates its terms.

The New Code establishes more stringent rules of evidence. In particular, a person must now be acquitted if their guilt is not proven beyond reasonable doubt, whereas the former prevailing practice was to return the case to investigators for further pre-trial investigation. The New Code therefore brings Ukrainian law into line with a universal concept of adversarial procedure adopted by sophisticated criminal legal systems.

The New Code makes trial by jury available to defendants. A defendant facing a potential life sentence may file a motion in the preliminary court hearing requiring trial by jury.

The New Code also introduces the concept of plea bargaining. One type of bargain allows the defendant to admit guilt in return for the prosecution arguing for a more lenient sentence. Another kind of plea bargain available for certain crimes involves the victim agreeing a level of compensation with the defendant. Either type of plea bargain may be made in the period after a notice of suspicion is issued but before the court begins to deliberate its verdict.

A further important change gives a defendant a procedural right to obtain independent forensic analysis of evidence. Previously, only the investigator or the court could do so. Now a defendant may appoint forensic experts on his own behalf, and the results of their analysis will have equal weight to those of experts appointed by the investigator or court.

The New Code also gives a defendant a right of temporary access to documents or objects in the possession of third parties (so as to review, copy or even seize them), if such documents or objects may constitute evidence in the criminal case. Such access is granted at the court’s discretion upon the defendant filing a motion requesting it. The New Code imposes new safeguards on who may represent a defendant in a criminal case, by requiring that representation be undertaken only by a licensed attorney (advocate). The attorney’s name will also have to be listed in the Unified Registry of the Attorneys and Attorneys’ Associations, although this requirement will become effective only a year after the registry has been created.

In comparison with the 1961 Ukrainian Code of Criminal Procedure, the New Code represents a major reform with the potential significantly to improve the Ukrainian criminal justice system. Whether it fulfils its potential now depends on how the legislation is put into practice by the law-enforcement bodies and courts of Ukraine. Law: the Code of Criminal Procedure of Ukraine № 9700, dated April 13 2012.