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29.12.2011

New Criminal Procedure Code: More Powers for the Police?

   

There are plans to pass a new Criminal Procedure Code [CPC] which has been under preparation now for 5 years. However in the latest version, the powers of the police are significantly broadened.

Ukraine is the only post-Soviet country which is still using a Soviet CPC, drawn up back in the 1960s.  Analysts point out that the procedural acts envisaged by this Code are largely directly at prosecution, not at establishing the truth in criminal cases. Due to outdated legislation each year hundreds of cases end up at the European Court of Human Rights. The process of changing the procedure for investigating criminal cases began back in 2006.  However, Volodymyr Yavorsky, Executive Director of the Ukrainian Helsinki Human Rights Union explains that the process has been dragged out since law enforcement bodies do not willingly agree to changes in their work.

The police are frightened of this Code since their function is significantly altered. They will have to work and not beat confessions out of people”.  Volodymyr Yavorsky explains, however, that the draft Code which has been worked on by several working groups is very difficult from the current CPC. It is based on the adversarial principle of the parties at all stages of criminal proceedings. “The defence and prosecution receive equal rights, while up till now the prosecution has had more opportunities. If a person has been detained, he or she is treated as if guilty”,

President’s changes in favour of the police

Yavorsky says that UHHRU representatives took part in drawing up some provisions of the new Criminal Procedure Code. He believes that if the President submits the draft Code as drawn up with the participation of civic organizations to the Verkhovna Rada at the beginning of the new parliamentary session, the document will help Ukrainians defend their rights during criminal investigations.

However those who have seen the new CPC in its final version say that the document is far from ideal. Oleksandr Banchuk from the Centre for Political and Legal Reform, told the Deutsche Welle Ukrainian Service:: “In comparison with the one that we worked on up till 2009, a lot has been changed.  The President instructed the law enforcement bodies to make their amendments to the document and they tried to do this for their own benefit”.

For example, he explains, in the first version all information and testimony became evidence only in the courtroom. Now, after the police amendments, the document states that it is not the judges, but the investigators and prosecutors who deal with the evidence. This means that the new Code will not essentially change anything. The new CPC will also increase police powers. According to the final version the investigators will receive prosecutor powers, and will communicate and answer judges’ questions instead of concentrating purely on the investigation. He believes that this norm was lobbied for by the Ministry of Internal Affairs.

In addition, prosecutors according to the new CPC should become procedural heads of the case, not simply oversee the proceedings, but also answer for an effective investigation. Oleksandr Banchuk says that this change is logical and taken from the German CPC. However such changes make sense only if a law is passed on prosecutor oversight, yet there is no talk of this at present. “If the law on the prosecutors is not changed, there will remain a danger that the Prosecutor will become the king of it all”.  Council of Europe experts are also concerned over the powers of the Prosecutor’s office in the new CPC.  There is, for example, a five-year transitional period after the CPC comes into force during which the Prosecutor General’s office would have the powers to run the investigation. The Council of Europe has advised against this.

The CPC from 2009 envisaged the introduction of trial by jury. Oleksandr Banchuk complains that this has now been distorted with the suggested jury consisting of two judges and two people who are not lawyers. He asks what kind of jury that would be.

The analysts are convinced that a new CPC is vital but that it must not be passed without changes.  Yet those in power are now set on adopting it. The Prosecutor General Viktor Pshonka told Deutsche Welle that they shouldn’t procrastinate, that the President would submit it to be voted on and that he expected it to be discussed at the beginning of next year.

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