Vasyl Onopenko: “The Criminal Procedure Code should be changed!”
(Information for the press of the Supreme Council Committee in charge of questions of legal policy)
Last week Vasyl Onopenko introduced a new Draft Law No. 8256 on amendments to the Criminal Procedure Code of Ukraine. The author points out that such amendments are needed because of discrepancies in the legislative regulation of the methods of recording court hearings into a case (minutes of a court sitting) and reproduction of technical tools in courts of all jurisdiction. Article 87 of the Criminal Procedure Code of Ukraine reads that the minutes of a court sitting are the basic procedural document, which is compiled on the stage of court consideration of a case and are an important source of information on the contents of proofs analyzed in a first instance court, as well as observance of legal procedure by court and participants of court sitting.
Besides, this law envisages taking of minutes not only in the course of every sitting of a first instance court, but also during consideration in the appeal and cassation courts.
Although such regulation of fixation of the process in a court of the first instance is well-founded, it is expedient to keep minutes in a court of the appeal instance only during the investigation in court (as it is stipulated by Article 362 of the CPC of Ukraine). In other cases such fixation is not caused by procedural necessity, but will only result in the excessive financial expenditures for court secretaries, additional rooms, etc.
Moreover, there is no need to keep minutes in a court of cassation instance. The cassation consideration of a case is realized without investigation of proofs and within the bounds determined in the cassation claim (appeal). All procedurally significant actions are described in court resolution. Any fixation of the cassation process is not envisaged by other procedural codes too.
Practical realization of the provision that minutes should be kept during court consideration of every cassation case would result in unjustified financial expenditures for increase of secretaries staff in the Supreme Court of Ukraine, additional rooms, prolongation of the terms of cassation reconsideration of cases, etc.
As to the necessity of observance of the procedure of reproduction of technical recording of court process, which is realized at consideration in courts of the first instance, in appeal and cassation courts, it should be concretized. Besides, it should be envisaged that such reproduction can be realized both fully and partially, depending on the concrete circumstances of the case, which would make impossible the misuses on the side of the participants of the process for the purpose of unjustified retardation of case consideration.
Besides, it is necessary to stipulate in the law that the minutes of a court sitting should be kept during consideration of the complaints against the decisions of inquiry organs, investigating officers and prosecutors on the pre-trial stages of the process, during the preliminary consideration of the case and at solution of the questions connected with execution of a verdict.
The main goal of adoption of the proposed Law draft is liquidation of contradictions in the operating Criminal-Procedural Code of Ukraine concerning the fixation of court processes.
The law draft proposes to change Articles 87, 88-2, 236-2, 236-6, 240 and 411 of the CPC of Ukraine and to establish that the minutes should not be kept in courts of the cassation instance. In the courts of the appeal instance the minutes of court sittings should be kept in the cases, where court investigation is carried out. The minutes of court sitting is obligatorily kept during consideration of the complaints against the decisions of inquiry organs, investigating officers and prosecutors on the pre-trial stages of the process, during the preliminary consideration of the case and at solution of the questions connected with execution of a verdict.
We also suggest to establish that full or partial reproduction of technical records of a court process is realized according to court decision in a court sitting during consideration of a case in the courts of the first instance, in appeal and cassation courts, as well as at consideration of remarks.
The relations in this sphere are regulated by the Criminal-Procedural Code of Ukraine.
Adoption of this draft as a Law of Ukraine and its realization would not require any additional expenditures from the State budget of Ukraine.
Realization of the provisions of the law draft, in case of its adoption, will make possible the increase of the level of justice at consideration of cases in the appeal and cassation courts.