The new Code of Criminal Procedure, which came into force on November 20 2012, has drastically altered the national criminal justice system (which had largely remained unchanged since 1960) and marks the beginning of a new era. The changes affect virtually all stages of the criminal process, from the initiation of the criminal proceeding up to the final judgment. This update highlights some of the pros and cons of the new code.
Criminal proceedings are commenced with an application or report of criminal offence, which must be entered into the register of pre-trial investigations within 24 hours. Immediately following this, the investigator will begin the pre-trial investigation. These changes have been introduced to minimise the possibility of abuse of power by law enforcement authorities when making a decision to institute criminal proceedings.
However, due to the lack of proper verification at the pre-investigation stage, no allegations concerning criminal offences are tested before they are registered. Moreover, concerned persons may not appeal the institution of criminal proceedings.
The new code grants greater power to the judicial bodies at the pre-trial investigation stage. The majority of investigative actions, restraint measures and other actions limiting protected human rights may now be initiated only upon a motivated decision of the investigative judge. This will include the following actions:
- an order to appear in court;
- suspension of the accused from his or her office;
- limitation of the accused's involvement in a business activity; and
- arrest of the suspect and seizure of his or her property.
Moreover, the code stipulates that complaints may be filed with the investigating judge against any illegal actions or omissions of the investigator or prosecutor. Although these changes provide greater oversight of pre-trial authorities, they nevertheless protract the pre-trial investigation stage.
Unlike under the previous code, the new code stipulates that only an attorney can serve as defence counsel in a criminal proceeding. The attorney may:
- initiate investigative actions before the investigator;
- collect and submit evidence to the prosecutor or the court; and
- review the case records at any time.
Witnesses can also be advised or represented by an attorney.
The prosecution is now vested solely with the role of providing procedural guidance and supervision over the public bodies governing internal affairs, the security service and the tax police where they conduct investigations and prosecute indictment actions before the courts.
The new code to some extent marks the liberalisation of the legal system. For example, restraint measures in the form of custody are imposed in respect of the accused only in exceptional cases and are often replaced by less serious restraint measures, such as bail. House arrests have also been introduced, which have effectively replaced taking the accused into custody in cases where the penalty involves a deprivation of liberty.
According to the official statistics, following adoption of the new code, the number of cases in which the accused is taken into custody has been halved from that of previous years, while the imposition of fines has significantly increased. An increase in house arrests has also been observed, with more than 500 cases documented.
The code further provides the opportunity to conclude both a reconciliation agreement between the suspect and the victim and an agreement with the prosecutor on the admission of guilt (ie, a plea bargain), which provides mutually beneficial terms (for the offender, a less onerous court sentence). The number of reconciliation agreements concluded has recently tripled, while the number of plea agreements has similarly increased.
In addition, the courts now consider witnesses' statements and other evidence provided directly in the court trial; this innovation should reduce the number of instances involving the investigating authorities' use of physical or psychological pressure to compel suspects into admitting guilt.
These measures should contribute to a fairer legal system in Ukraine. However, only a practical application of the new code will reveal all of its pros and cons, which should result in further changes to the national legislation.