Many lawyers consider the Criminal Procedure Code (CPC) to be the second most important legal document of our country after the Constitution. The coordinating meeting of the heads of law-enforcement bodies dedicated to the code’s implementation took place last week. During the meeting, Ukraine’s President Viktor Yanukovych reminded that the implementation of the new CPC was a part of fulfilling Ukraine’s obligations before the European Council on reforming criminal justice. “I am sure that the new code’s regulations will be successfully implemented from The Day it takes effect,” said the president. “I stress that the way society accepts innovations depends on every officer of the law-enforcement agencies. The citizens will be able to make certain of the fact that the regulations were adopted for their security by this criterion only.”
In the introduction to one of the first editions of CPC of Ukraine, the advisor of the president of Ukraine, secretary of the working group on reforming criminal justice Andrii Portnov stated: “With the implementation of regulations of the new code, such phenomena as unfounded detention, violation of terms of crime investigation, prohibited methods of extorting evidence, and the absence of effective judiciary control of measures that limit citizens’ rights, will remain in the past.”
After enumerating the innovations of the new code, Portnov emphasized that there would be more acquittals in courts, and the country’s business activity and investment climate would enliven. In general, the code would promote the implementation of the qualitatively new system of legal measures of human, society, and state protection from criminal violations. At the same time, the president’s adviser notes that the success of the launched reform, which is only the first step towards this goal, depends on the desire of all Ukrainian citizens to change the situation in criminal justice and on effectiveness of the efforts put in this direction.
“One of the main innovations of the new CPC is the deviation from the accusatory trend, which was typical before,” said the Deputy Justice Minister Dmytro Vorona in the interview to Interfax-Ukraine. “If we talk about the old CPC, it was a code with all the preferences on the sides of investigation bodies. Nowadays, the adversarial system is implemented. It provides competition which creates fairer approaches. Today, the most responsibility lies with courts. The judiciary system has already been reformed, therefore, any decision on limitation of any rights and freedoms of the citizen will be made by the investigative judge; not by the investigator himself, not by the operative, but by the investigative judge. Thus, quality will increase.” The deputy minister also added that the CPC of Ukraine “was recognized as one of the best codes in Europe as of today.”
It is clear that the creators of the new document emphasize its advantages in the first place. But at the same time, the code has to be improved in the near future. Last week, a roundtable “Will the new CPC be able to protect human rights during investigation and trial?” was held at one of Kyiv editorial offices. As we see, the organizers did not forget to use a question mark. This can be the evidence of the fact that Ukrainian society is not familiar enough with the new document, and that is why it does not yet accept its ideas and regulations as revolutionary. And it also might mean that the burden of society’s mistrust of the law-enforcement system still casts a deep shadow on the judiciary reform. The discussion proved that Vorona was right when he said: “Practice is the only criterion of truth, when the new CPC enters into force.”
Obviously, the member of the Highest Qualification Commission of Judges Halyna Kolesnyk could hold together with this opinion. So, when talking about the new institution of investigative judges, she quoted the code, which says that it provides judiciary control over observance of human and state rights and freedoms. “The election campaign for these judges has just been over (according to the law, investigative judges are selected during a meeting of the court they will be working at) and I learned that in one of Mykolaiv oblast courts colleagues nominated a judge who is afraid of criminal cases, and whose relations with the prosecutor’s office are tense because of some of the controversial decisions this judge had made. Such insufficiently considered approach will not benefit the impressions of this new position.” Nevertheless, Kolesnyk thinks that professional judges are ready to execute their new duties.
Ukrainian human rights activists display a rather critical attitude towards the new CPC. “It looked smooth on the paper, but the practice is different,” says Tetiana Yablonska. “I do not know how they found it possible to train an investigative judge in such short period of time. Why is the rate of acquittals at 0.2 percent now? Because it is much easier for the judge to send the case for further investigation than to pass a non-guilty judgment. Now, there will not be such option. A judge will have to make a decision. And concerning the so-called preventive measures, a new one appeared, it is called house arrest. In what way is it supposed to take place? And it remains unclear what technical means and funds state needs for this code to start working. It is hard to imagine in such poor country as ours, with corruption eating it for 20 years from top to bottom. And that is why I do not believe in these pretty words of the government bodies’ representatives. No, I don’t. Because, for example, the old code allowed for putting off the arrest as well. It had the recognizance not to leave and bail. But the judges neglected these options. What will the new code bring? The prosecutor’s office has always monitored observance of the law, but they have always overlooked violations. The role of the prosecutor as an accuser has not ever changed since Stalin.”
The human rights activist is surprised at the process of creating the institute of jurors in Ukrainian jurisdiction. “Why are there only three of them, and why are they to appear only in cases that involve life imprisonment?” Yablonska wonders. She predicts that the jury will not be able to perform its functions. Besides, the new CPC does not provide information on how they will be chosen “in our society, which lacks constant democracy.” “I am afraid, we will not have the jury court with the new CPC, or without it,” Yablonska sums up. She also doubts Ukraine’s ability to implement a system of free defense of the accused by state lawyers, and that it will be possible to eliminate tortures at the police. She gives an example of when such facts were confirmed even by the European Court, but its judgment was nullified in Ukraine. “Do you know how many police officers are in prison for torturing?” the human rights activist asks and gives the answer right away, “23 persons.”
Everyone in the room is grinning skeptically. Deputy attorney general Hryhorii Sereda notes, “With the new code, there will be even less.” He urges everyone to be “cautiously optimistic” when speaking about progress, and forget about mentioning the past. However, this wish for some reason was not accepted by the chief of the Main Investigative Authority at the Ministry of Interior, Vasyl Farynnyk, who has worked as a judge, investigator, and lawyer. He said that during his career as a judge he had passed verdicts of acquittal. “In all my career there were three of them.”
“But that’s too few,” The Day could not resist from remarking.
“Why so few? Back then, it was absolutely rare at all…”
