Commentaries to the draft of Criminal-Procedural Code of Ukraine presented for the second reading in the Supreme Rada
Authors of the final version of the Draft: MPs of Ukraine, members of the Committee in charge of questions of legislative provision of law-enforcement activities V. Moysik, O. Bandurka, S. Ivanov, O. Ivchanko, V. Mazurenko, M. Markush, V. Nichiporuk, S. Oleksiyuk, M. Potebenko, S. Sinchenko, V. Chervoniy, A. Shkil and others
RESUME
In the societies, which are grounded on the principle of superiority of right and on the respect to the indefeasible rights of people, the criminal-procedural legislation represents the human rights with respect to the state power (especially the accusatory one). The draft represents other conception of the Code. It is based on the presumption that a criminal process is not the competition of the parties with opposite interests in order to help the court to establish the real circumstances of the considered case, but is a process of search and punishment of the guilty, and the Criminal-Procedural Code, for its turn, is a collection of methodical recommendations for these activities.
The fact that the repressive ideology of the criminal process was included into the draft of the CPC «on the molecular level» complicates the identification of drawbacks, the correction of which would improve this document.
In many aspects the Draft contradicts, directly or indirectly, the Constitution and international obligations of Ukraine, in particular, in the parts that concern the penetration to dwelling, presumption of innocence, detention of the suspected, terms of their holding in custody before the official accusation, during the pre-trial investigation and trial.
The authors of the Draft preserved the dominance of repressive principles with all peculiarities of such system of legal proceedings, namely:
- multistage process, which results in its long duration, and the opportunity of repeated return of cases for additional investigation;
- mainly written character of criminal process, when the documents, but not direct examination of proofs, are regarded as most important;
- restricted opportunity of competitive examination of proofs;
- powers of law-enforcing organs to restrict rights of an individual without the sufficient guarantees against the arbitrary actions;
- violation of the right for defense, in particular, restriction of the access of the suspected and accused persons, as well as their advocates, to all materials of the case, solution of the question about the admittance of advocates to the case by the prosecution side and other aspects.
Resolution of the PACE No. 1346 (2003) on the fulfillment by Ukraine of her duties and obligations points out: «The Assembly expresses its deep anxiety about the slow progress in introduction of the principles and standards of the Council of Europe by the power organs of Ukraine, which is confirmed by the fact that some clauses of the last version of the draft of the Criminal-Procedural Code are incompatible with the standards of the Council of Europe guaranteed by the European Convention of human rights and the practices of the European Court of human rights». Yet, the draft of the CPC is still repressive by its conception.
The draft of the CPC must be essentially revised, it may not be adopted in the present form. It contradicts the practices of the European Court concerning Articles 3, 5 and 6 of the European Convention, which will result in future in the defeats of Ukraine in the European Court and payment of great sums to the claimants in the cases against Ukraine.
1. Repressive features of the draft
Complication of the pre-trial process
The especial anxiety is aroused by the fact that the draft envisages the opportunity for too long pre-trial proceedings on criminal cases. The stage of pre-trial proceedings cannot provide the guarantees of competitiveness at the clarification of circumstances of a case, so its complication and long duration endanger the right of an individual for the fast access to court for final consideration of the validity of accusation.
The authors of the draft attach unreasonable importance to the so-called stage of «preliminary verification of application, message or other information about a crime». Evidently, such approach is a result of the conviction that any started criminal case should end in conviction, therefore the closure of a criminal case is regarded as a drawback in the work of law-enforcing organs. Reasoning from this position, the authors of the draft introduce the complicated procedure of «verification», which, by their idea, should eliminate the possibility of institution of a case that would be closed later.
This position of the authors of the draft confirms the inclination for the repressive type of criminal process. In a process, which is built by the accusatory principle, institution of a criminal case is not very important. A criminal case is instituted after a rational suspicion of the commitment of some concrete crime. Yet, accusatory criminal process always imply that the conclusions made on the basis of the initial and incomplete information may turn out to be erroneous after some time, when more complete information will be obtained. That is why the institution of a criminal case and its closure is a routine, usual for the activities under questionable circumstances.
Besides, criminal prosecution may be stopped because of shortage of proofs and bad court perspective of the case. The possibility of the verdict of "not guilty" always exists, so the sober estimate by the prosecution of its perspectives in court can result in the refusal from the accusation.
Such attention of the authors of the draft to the act of institution of a criminal case is caused by the stable tradition to evaluate the effectiveness of work of law-enforcing organs by the number of started or closed criminal cases.
Yet, instead of complicating the process of institution of criminal cases, more reliable guarantees should be established from the situations, when investigation of a criminal case results in unjustified meddling into the sphere of personal autonomy and the unfair restriction of personal rights.
Mainly written character of criminal process
One of the consequences of «swelling» of the pre-trial stages of criminal process is the unwarrantably great influence during the court investigation of the proofs contained in written acts, created by the investigating organs in the course of preliminary investigation. The written character of the process, the advantage of protocols over the direct examination of proofs in court, was always regarded as one of the evidences of repressive type of legal proceedings.
The accusatory process attaches significance only to proofs, which are examined at the open trial with maximal guarantees of competitiveness of the sides, and almost ignores the protocols of the prosecution. The approach of the authors of the draft accentuates just on the protocols.
Protocols of testimonies of witnesses, which were compiled during the secret pre-trial investigation without the sufficient guarantees from the illegal influence of the persons, who realized the prosecution, in practice prevail over the testimonies given at the open trial. Besides, the efficient court interrogation of witnesses is hindered by the criminal responsibility in the case, if the testimonies in court would contradict the testimonies during the pre-trial stages of the criminal process.
Another important problem is the use of protocols and other documents, in which the confession of the suspected and accused of the commitment of a crime is fixed. The possibility to use such confessions in proving the guilt of a person induces the law-enforcing organs to resort to any means for obtaining such confessions. This results in more frequent application of torture in the course of pre-trial stages of criminal procedure.
The prohibition of use of the protocols of testimonies, especially the protocols that contain the confession of crimes, if they were not confirmed during the open court consideration, and liquidation of criminal responsibility of witnesses for testimonies obtained at the pre-trial stages of the criminal process have become rather reliable guarantees from the use of illegal methods during the pre-trial stages of the process.
Absence of continuity of court consideration
The problem of the written character of criminal process is aggravated by the fact that the draft does not restore the principle of continuity of court consideration of criminal cases, which was removed from the criminal process in the beginning of 1990s without the sufficient grounds.
This principle is one of basic elements of the system, as well as independent evaluation of proofs by judges, invariability of court composition, direct examination of proofs, equality of sides, etc.
Invariability of court composition means not the bodily appearance and passport identity of judges, but, first of all, their consciousness and views. However, one may not say that a judge or collegium of judges would represent the same composition returning to the consideration after several months, since their consciousness would be burdened with scores of other cases and hundreds of other circumstances. It is natural that, if there was some significant interval between court hearings, judges have to base mainly on the documents, but not on the real impression of the direct examination of the proofs. And the real impression is an unalienable component of independent examination of proofs – the system, which is proclaimed to be the basis of our criminal proceedings.
The absence of continuity of court consideration results in the situation, when the concealed system of evaluation of proofs is formed in the court practice, which system is grounded not on the unique aggregate of consequences in a concrete case, but on the established values of various types of proofs, when the confession of the suspected (accused) is the most important element.
Return of cases for additional investigation
The draft preserves the institute of returning cases for additional investigation, which contradicts the basic principles of modern criminal proceedings.
This institute was created in the times, when the Soviet jurisprudence turned to the inquisitional model destroyed in 1864. Three types of verdicts existed in this model: to recognize as guilty, to acquit and to leave under the suspicion.
The cancellation of the verdicts, according to which the person that had not been recognized as guilty, but was left under the suspicion, suffered from the essential restriction of his/her rights, was one of the bases of the court reform of 1860s.
The Soviet legal procedure restored the «leaving under suspicion» in more serious form of legal uncertainty - return of cases for additional investigation.
Apparently, the position of the authors of the draft consists in giving another attempt to the investigators and prosecutors, who could not formulate and prove the accusation properly. Yet, this approach is the protectionism on the side of court and does not agree with the role of court in democratic countries. It also contradicts the presumption of innocence, the right for reasonable duration of court consideration and the right to a fair trial.
We endorse the position of V. Maliarenko, the Head of the Supreme Court of Ukraine, which was expressed by him in his work published in the magazine «Pravo Ukrainy», No. 4: institutes of return of cases for additional investigation and return of cases to prosecutor must be liquidated, and the corresponding articles from the draft of the CPC must be removed.
Possibility of use of the proofs obtained owing to the violations of human rights
One of the main tasks of the Criminal-Procedural Code is the creation of distinct rules concerning the admissibility of proofs. Yet, the draft contains insufficiently distinct terms, which create the possibility of arbitrary interpretation in practice.
Article 14 of the draft contains the expression «proofs obtained in illegal way» and prohibits their use for substantiation of accusation. Yet, item (36) of Article 6 of the draft defines «accusation» as «affirmation about the commitment by concrete person of a crime, presented according to the order stipulated by this Code». So, it is quite possible that the conviction may be based on «the proofs obtained in illegal way».
Article 8 of the draft includes the statement «proofs, which were obtained by court, prosecutor, inquiry organ or the person carrying out the inquiry with violations of the Constitution of Ukraine or with such violations of this Code that affected or could affect their authenticity».
Thus, this article envisages the indubitable inadmissibility of using only those proofs, which were «obtained with violations of the Constitution of Ukraine». And the use of proofs, obtained with the violations of the CPC, is admissible, if the accused (defendant) would not prove that the violation of the CPC «affected or could affect the authenticity of these proofs».
The following situation may be adduced as an example: part 2 of Article 10 of the Criminal-Procedural Code prohibits the application of torture. So, if the accused reckons that his testimony obtained with the application of torture, must be excluded from the proofs, he must prove not only the fact that torture was applied, but also that the application of torture «affected or could affect» the authenticity of his testimony.
Part 3 of Article 164 of the draft acknowledges as inadmissible the proofs obtained «as a result of application of violence». Such wording does not take into account the creation of the conditions that inflict physical or moral damage for obtaining the involuntary testimonies.
On the other side, the same provision acknowledges as inadmissible the proofs obtained «as a result of other illegal actions». This formulation of part 3 of Article 164 do not agree with the formulation of part 2 of the same Article, which states that «the proofs, which were obtained with such violations of this Code that affected or could affect their authenticity, cannot be used for substantiation of accusation». The comparison of these two provisions allows to suppose that the authors of the draft recognize that some violations of the CPC may be «illegal», and others – «legal» violations.
All in all, the analysis of only three articles of the draft revealed five different definitions of inadmissible proofs: (1) proofs obtained in «illegal way»; (2) proofs obtained «as a result of illegal actions»; (3) proofs obtained «with the violations of this Code»; (4) proofs obtained «with the violations of the Constitution»; (5) proofs obtained «as a result of application of violence». It is impossible to determine whether these concepts have the identical meaning or not.
And, finally, the draft does not solve many problems: any rules concerning the distribution of functions in the question of examination of admissibility of proofs are absent, as well as the standards of such examination. As a result, the inadmissible proofs can get the access to justice.
For instance, according to the existing court practices, the accused must prove convincingly that the illegal methods of investigation were applied to him. Taking into account the fact that the accused has very restricted opportunities to prove the application of illegal actions to him on the side of officials, it is impossible for the majority of the accused to prove that. In this connection many confessions, which raise doubts about their voluntariness, become the main proof, on which the conviction is based.
2. Possibility to overstep the Constitutional restrictions
The draft resorts to a number of the tricks in order to evade the restrictions concerning the interference of the state into the rights and freedoms of citizens, which are protected by the Constitution and the Convention on human rights.
Here are two most demonstrative examples of such approach: authority for penetration to dwelling or other estate of a person and the authority for detention of a suspected.
Penetration to dwelling
Article 263 of the draft envisages the procedure of conduction of a domiciliary visit. Parts 2 and 3 of this article incorporate the demands of Article 30 of the Constitution concerning the obligatory court decision for penetration to dwelling or other estate of a person. Yet, Article 5 of this article reads that «the resolution of a judge is not needed for urgent examination of locus delicti in a dwelling or other estate of a person in the case of obtaining the information about the commitment of a crime in this dwelling or other estate of a person at the objective impossibility of getting from the person of the consent to examine this place».
This clause gives the opportunity to exceed the bounds of Constitutional restrictions and practically destroys all guarantees of inviolability of a dwelling and private life of citizens, since almost every situation can be adjusted to this provision. For instance, the storage in dwelling of narcotic drugs or the property liable to confiscation creates corpus delicti and, in the opinion of the authors of the draft, the information about such crime permits the penetration to dwelling and other estate without court permission.
Part 2 of Article 265 of the draft creates even more opportunities for violation of the Constitution: in the case of obtaining of the application, message or other information about the committed crime or some its features, the person that realizes the inquiry or the investigating officer must immediately proceed to the examination of the place of the event with the aim to reveal the traces of the crime or other material evidences, to clear up the conditions, under which the crime was committed, and other circumstances having the connection with this case». The authors of the draft even did not pay attention to the condition that the «place of the event» may be situated in dwelling or other estate of a person, and in this situation the general rule of Article 30 of the Constitution must be observed.
It should be noted that the operating CPC determines the powers of law-enforcing organs more strictly than the considered law draft.
Detention of a suspected
The Constitution envisages a very limited circle of admissible grounds for detention of a person without court decision: «urgent necessity to prevent a crime or stop it». Any legal grounds for the arrest without warrant, including the Criminal-Procedural Code, must meet the requirement «urgent necessity to prevent a crime or stop it».
Item (1) of part 2 of Article 118 of the draft envisages the arrest without warrant «in the case of the barest necessity to prevent a crime or stop it». At the first sight, this clause repeats the provision of the Constitution, but the authors of the draft utterly distorted the sense of this constitutional restriction. In the Constitution this provision is the norm that restricts the opportunity of the arrest without warrant, and the authors of the draft represent it as an additional situation, when the state has the right to deprive a person of liberty without court decision. According to the logic of the authors of the draft, a person may be arrested without court decision either on the basis of the CPC or on the basis of the Constitution. Yet, according to the logic of the Constitution, any law provision, which permits the arrest without court decision, must not give the power more authorities than it is allowed by Article 29 of the Constitution.
The possibility to exceed the constitutional restrictions is also created by the clauses of Article 118, which permit the detention «for guaranteeing the fulfillment by the suspected of the procedural duties stipulated by this Code» or «with the goal to convey the suspected to the organs of inquiry, pre-trial investigation or court on the basis of the well-founded suspicion of the commitment by him of a crime or other socially dangerous action».
It is noteworthy that the latter grounds contradict Article 5 of the Convention on human rights.
3. Protection of the right for liberty
Along with the fact that the draft preserves too many authorities of the power to deprive a person of liberty without court decision, this document has other drawbacks connected with the protection of the right for liberty.
Presumption in favor of taking into custody
In spite of all declarations, the formulations of the draft conserve the provision, according to which the deprivation of personal liberty in the course of criminal proceedings is still rather a rule than an exception.
In accordance with Article 138 of the draft, if a judge cannot settle his doubts whether the measures not connected with deprivation of liberty would guarantee the «proper behavior», then he must take the accused (suspected, defendant) into custody. Thus, the authors of the draft created the presumption in favor of taking into custody.
This presumption is almost non-rebuttable, since the theoretical possibility always exists that these or that measures would not guarantee the «proper behavior». In such formulation holding in custody becomes a usual state of an accused during the criminal process, if the accused would not adduce some extraordinary circumstances, which would exclude even theoretical possibility of «improper behavior». Besides, the statement «proper behavior» may be interpreted rather freely.
Guarantees of fair court procedure during the solution of the question about taking into custody or release
Regulation of the procedure of court consideration of the question about arrest or release is insufficient in the draft, as well as in the operating laws. Taking into account the fact that the institute of court consideration of the question about taking into custody or release has been introduced into our legal practices very recently, and the traditions of consideration of such questions by court are absent in Ukraine, the approach suggested by the authors of the draft seems to be injudicious. In what follows we will briefly mention only some of the drawbacks:
- the subject of court consideration and the powers of the sides in the course of the procedure are not stipulated properly (Articles 148-150 of the draft);
- the court has the possibility to exceed the bounds of the demands of prosecution concerning the restriction of the rights of individual, which contradicts the role of court in the society (Article 148 of the draft);
- the duty of judge to guarantee to the interested person the right for efficient juridical representation in the course of consideration of the question about arrest or release is not stipulated;
- the elementary right of the accused for personal participation in consideration of the question about the prolongation of his holding in custody is not guaranteed (Article 150 of the draft);
- the duty of prosecution to inform, within the reasonable time, the defense about the arguments, on which the necessity of taking into custody or prolongation of holding in custody is grounded, is not envisaged;
- the procedure of access of the accused and advocate to the materials of the case for the efficient influence on the solution of the question about the arrest or release is not stipulated.
Taking into consideration all these drawbacks, one can see that the role of defense in this procedure is merely decorative.
It should be taken into account that the court consideration of the question about arrest is conducted under the conditions of urgency and is a routine element of criminal persecution. So, the laws must be precise, in order to allow the accused to understand the scope of guarantees, on which he can rely protesting against the attempt of prosecution to deprive him of liberty. Yet, in the present situation, the very existence of these or that guarantees may be a subject of a court controversy. This weakens the effectiveness of the legal methods of defense, which can result in the violations of the Constitution and the Convention on human rights.
Duration of the term of taking to court
The draft reserves the possibility of long-term incarceration of a person, deprived of liberty on the suspicion of the commitment of a crime, without taking to court.
The maximal term of holding in custody without court decision, stipulated by the Constitution, is 72 hours. Yet, the observance of the term envisaged by the Constitution does not mean that the rule about the immediate taking to court is observed, and holding in custody by law-enforcing organs during 72 hours is lawful. An accused must be taken to court as soon as possible, but not later than in 72 hours.
Exceeding of this term makes holding in custody by law-enforcing organs illegal. Yet, even the delay within this term may violate the Constitution, if this delay was not caused by reasonable motives.
The draft does not state that the judge, to whom the detained is taken, must clear up the question why the detained was not taken to him within a shorter term. And without such court control the existing state will remain, when 72 hours is not a maximal term of taking to court, but a usual one.
Yet, part 6 of Article 149 of the draft (as well as part 4 of Article 1652 of the operating CPC) envisages the possibility to exceed this maximal term. This provision reads: «considering the question about deprivation of liberty of a person, which stays at large, the investigating judge has the right to issue the permission on the detention of the suspected/accused and taking him to court under escort. In such case the detention may not last longer than 72 hours, and in cases, where the person stays outside the settlement, where the court acts, - not longer than 48 hours from the moment of transportation of the detained to this settlement».
This clause contains the boundless opportunities for misuses of the organs of inquiry, since the moment of transportation of the detained to this settlement, «where the court acts», depends only on them, so they determine the beginning of the term. It is not difficult to imagine the various forms of cooperation of law-enforcing organs of different «settlements» in order to justify the illegal, and, theoretically, infinitely long term of deprivation of liberty. We already know about the cases, when the «term of transportation» was more than three weeks.
4. Appeals against violations during pre-trial proceedings
The complication and long duration of pre-trial proceedings make more acute the problem of appealing to court against decisions, activities and passivity of the officials realizing the pre-trial proceedings.
Access to court
Parts 1 and 2 of Article 317 of the draft state that the appeals against the decisions, activities or passivity of an official realizing the pre-trial proceedings, head of investigation department or an investigating officer may be handed to the court of first instance. The Code stipulates the rule that such appeals may be handed only during the preliminary consideration of the case by court or consideration of the case per se. As to the opportunity to appeal against such actions before bringing of the matter to court, such opportunity exists only in the following cases:
- appeals against the decisions on the refusal to apply the security measures or on their cancellation (Article 90 of the draft);
- appeals against detention (Article 125 of the draft);
- appeals handed by the person, who informed about the crime, or other person, which takes part in the preliminary check of messages, applications or other information about crimes, against the decisions, activities or passivity of officers of the organs that realize the preliminary check (Article 210 of the draft);
- appeals against the refusal to institute the proceedings on a criminal case or closure of the proceedings on a criminal case (Article 321 of the draft);
- appeals against the resolutions on institution of the proceedings on a criminal case (Article 323 of the draft).
The draft does not envisage the opportunity of appealing against the violations of other rights protected by the Constitution and international agreements. This means that a complaint, which, maybe, contains the information about the brutal violations of human rights, can wait for consideration for many months. And if the case would finish on the stage of pre-trial proceedings, then the mentioned violation would not be considered at all. Thus, the draft creates the unique situation for justice, when consideration of the demands of interested person depends on the time, when the defendant (a law-enforcing organ) would pass the case to court (if he would do that).
Guarantees of court procedure
The most general features, which form the court character of the procedure, are: the right for personal participation in consideration, opportunity to use legal aid (in some cases, rendering of gratis legal services), access to the materials that may have importance for the solution of the case and equality of the procedural opportunities of the sides. The draft substantially ignores these fundamental principles.
For example, part 1 of Article 224 and part 2 of Article 321 of the draft read: «a complaint is handed… in seven days from the moment of obtaining… of a copy of the resolution or the notification about the taken decision…» In the opinion of the authors, it is sufficient for the interested person to obtain only a brief notification about the resolution for handing the qualified appeal to court against this resolution.
The operating Code states that any appeal should be handed only after the thorough study of the resolution, so the Code contains more thought-out formula: «a complaint… is handed… in seven days from the day of obtaining a copy of the resolution or notification of the prosecutor about the refusal to cancel the resolution».
In reality, this term (7 days) is too short: the existence of such norm will result in the situation, when the appellant either will waste time trying to familiarize with the contents of the resolution and will lose the opportunity to turn to court, or will have to hand the obviously ungrounded complaint.
In the case of appealing against the refusal to institute the proceedings on a criminal case any clause of the draft does not stipulate the obligation to render the materials to the interested person, on which materials the resolution on the refusal to institute the proceedings on a criminal case is based. Moreover, part 4 of Article 210 reads that «the data obtained in the course of preliminary check of the application, message or other information about a crime, may be divulged only after the permission of the person, which conducts the check, and the prosecutor, to the extent that they consider necessary».
In that way, one of the sides in the process completely controls the access to the materials and a priori gets the advantage over the procedural opponent at the consideration of lawfulness of the resolution on the refusal to institute the proceedings on a criminal case.
5. Right for defense
The draft of the Code preserves the provision existing in the operating legislation, when the suspected, accused or defendant have much less rights than the advocate, who realizes their defense. The person, who defends itself from accusation, is deprived of some important tools of defense, for instance:
- the right to use technical means in proper cases;
- the right to collect the information about the facts that can be used as proofs in the case, in particular, to send requests and to obtain, according to the order stipulated by laws, the documents or their copies from citizens and juridical persons, to familiarize, in organizations, enterprises and citizens’ unions, with needed documents, except those, the secrecy of which is protected by laws, to get the written conclusions of experts on the questions that need the special knowledge, to question citizens by their consent.
Advocates have such rights, but the person, who does not use the legal aid of an advocate, may not use these tools.
The right of an accused (defendant) for the participation in consideration of his appeals and cassation complaints is also more restricted than this right of his advocate.
This means that, according to the draft, the authorized person has much more rights that the person, who gave these authorities. Such situation is, to a great extent, caused by the fact that the authors of the draft regard the advocate not as a representative of his client, but as a person assigned by state organs for realization of the «correct defense».
Part 1 of Article 54 of the draft reads: «Advocate is a person, which, according to the order stipulated by law, is authorized to realize the defense of rights, freedoms and legal interests of the suspected, accused, defendant, condemned or acquitted, to render them legal aid during the proceedings in the criminal case». Yet, part 5 of the same article contains the list of those, who «authorize» the advocate «to realize the defense»: the person, which carries out the inquiry, investigating officer, prosecutor, investigating judge and judge.
This provision creates the auspicious conditions for violation of the right for defense from the very moment, when the advocate would try to interfere in the case.
Besides, the moment, from which the person gets the right for juridical representation, is also determined by prosecution side (part 2 of Article 45, part 1 of Article 47).
So, according to the draft, an accused (suspected, defendant) may not determine either the moment, from which he needs the juridical aid, or the person, whom he want to appoint his juridical representative.
This paradoxical situation, when the authorities for defense are given not by the person, who is accused of a crime, but by the persons, who produce this accusation, is a result of the same repressive model of criminal process, which the authors of the draft are trying to realize. This model implies that an investigator or prosecutor know better, when and how the accused must be defended, and which person is more suitable for rendering the legal aid.
As well as the operating Code, the draft deprives the defense of such tool of refutation of accusation as independent experts’ conclusions, since the decision about expertise and the appointment of concrete experts depends on investigation or court.
Conclusions
If to assess the draft in the whole, one can say that it mainly conserves and legalizes the practices, which have formed in our country and which contradict the modern conception of the role of criminal process in the society. The draft introduces the principles into the criminal legislation, which are typical for the totalitarian social system.
Ukraine got the unique opportunity to create new Criminal-Procedural Code on the basis of modern standards of fair legal proceedings. These standards must be laid in the ideology of the law draft, and this ideology must be reflected in all rules and norms that regulate the questions of criminal proceedings.
There are some discrepancies between the part of the draft, where the principles are declared, and the articles, which should embody these principles in concrete norms. The equality of participants of the process is willingly declared in the general part, but frequently the consideration of these or that questions without participation of advocate is practiced; advocate’s participation is guaranteed in the cases «if he came». Other provisions of the draft are also not irreproachable.
The draft of the Criminal-Procedural Code must be essentially and conceptually revised in order to adjust its provisions with the standards of human rights protection, which are guaranteed by the international agreements ratified by Ukraine. Yet, the draft demonstrates that its authors miscomprehend the contents and extent of international obligations of Ukraine and other standards of fair legal proceedings.