"Law enforcement system not ready for implementation of new CPC"


  Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Group, comments on the new Criminal Procedure Code which came into force on 20 November. He says that the Code contains many positive features such as the introduction of home arrest; use of SIZO [remand units] only where people are accused of serious crimes.  This should, he says, reduce by 30% the number of remand prisoners since that is how many are then sentenced to minimum terms of imprisonment, up to 3 years.

“The practice of returning a case for additional investigation will disappear. If previously a judge saw that the person’s guilt was not proven, that the evidence was not convincing, he or she could, instead of issuing a verdict, sent the case for further investigation. A new criminal investigation was effectively started while the person remained in SIZO. There were cases where people were in SIZO without being convicted for 5-7 years. Now the judge must either convict or acquit the defendant.

Some definitions, for example, regarding detention have been well formulated. It is simply a quote from European Court of Human Rights case law. An investigating judge has appeared who will monitor the criminal prosecution up till the indictment. There is a norm about the inadmissibility of evidence (i.e. where given under duress – translator). There are a fair number of preventive measures against the use of torture since only evidence received during the criminal investigation will be taken into consideration. The procedure is clearly set out for reconciliation between the accused and victims.

Will deals between the judge and the defence disappear?

Corruption in the courts will not disappear, however a person has the opportunity to avoid imprisonment if he admits guilt and fully compensates the victim’s losses. The problem of corruption needs to be resolved at another level, through fundamental reform of the justice system.

How much will defence lawyers’ services for members of the public increase?

Only defence lawyers with a licence will take part in criminal cases. There will be more of them. Their services are indeed expensive. The solution lies in the development of a service of free legal aid which is gradually developing in Ukraine.  The year before last 2 million UAH was allocated for this, last year – 7 million, and next year 52 million is envisaged. Legal aid centres are being created in each regional centre where defence lawyers are selected on the basis of competition. One problem is that Ukraine has few qualified defence lawyers.

The new CPC brings in trial by jury. How will the jury be selected? Will the system work effectively?

This is one of the shortcomings of the Code. 3 jury members with two judges is a parody of justice. In civilized countries there are 12 jury members who are selected by the community. Our jury members will be selected by the local authorities and will fulfil the role of the former Soviet people’s assessors. Their nickname referred to the fact that they nodded their heads to whatever the judges said.

The use of bail is to be extended. How will the amount be determined?

The new code does not contain any explanation.  Judges will themselves determine the amount – 20 or 200 thousand UAH. I assume that for poor people without rich relatives, home arrest will mostly be applied. Bail is returned if the person did not break parole.

The Interior Ministry says that there aren’t enough electronic bracelets for home arrest. How will they check if a person is staying at home? Will the responsibility be placed with local police stations?

There are a fair number of such questions. All will be determined on the go. At least a year is needed for full implementation of the Code. It will all depend how it is implemented. Will the police try to bypass it or imitate implementation? After all, the truth is often in the detail. The law enforcement system isn’t ready for implementation of a new CPC. It will be applied on the go.  What is important is the good will of all participants in the criminal process so that the positive norms of the law work as swiftly as possible. In general the Code is progressive. If it is implemented, the criminal situation will improve.

Can Ukrainians be more confident that from now on arbitrary rule among the law enforcement bodies will diminish and that there will be more justice in the courts?

With regard to justice it’s hard to say, but there will be less arbitrary rule. There will be no point in demanding a confession. The philosophy behind the code is such that less people will end up behind bars. Instead of 36 thousand people in SIZO, in a year there will be a third of that number. However adversarial nature of the parties – the prosecution and defence – needs to be ensured in practice.

The interviewer was Oleksandr Hunko

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