Appeal of the UBA’s Committee on the proposal of the G7 Ambassadors to amend the Criminal Procedure Code of Ukraine

The Committee on Criminal and Criminal Procedural Law of the Ukrainian Bar Association appealed to the Ministry of Justice of Ukraine, the Committee of the Verkhovna Rada of Ukraine on Law Enforcement and the Committee of the Verkhovna Rada of Ukraine on Legal Policy concerning the proposal of the G7 Ambassadors to amend the Criminal Procedure Code of Ukraine (CPC) regarding the time limits for pre-trial investigation after serving a person with a notice of suspicion.

In the Letter dated 07.03.2024, the G7 Ambassadors propose to

  • abolish the ground for closing criminal proceedings as the expiration of the pre-trial investigation;
  • grant the prosecutor exclusive authority to extend the pre-trial investigation.

Ukraine has made significant progress in implementing the rule of law, but it should be noted that the Ukrainian law enforcement system still needs to get rid of post-Soviet methods of conducting pre-trial investigations, which are characterized by an accusatory bias in pre-trial investigations. These facts are indicated by numerous decisions of investigating judges, which recognize non-compliance with the provisions of the CPC by representatives of the prosecution. These circumstances are also confirmed by a significant number of judgments of the European Court of Human Rights against Ukraine on violation of Article 6 of the European Convention on Human Rights (right to a fair trial).

I. On the right of a person to a reasonable period for proceedings against him/her

A reasonable time limit for proceedings is a right of the parties to the proceedings.

Criminal procedure guarantees of the right to a reasonable time limit for proceedings include:

  1. Establishment of time limits for the investigation after a person is notified of suspicion (Article 219 of the CPC of Ukraine).
  2. Expiration of such terms as a ground for closing the proceedings.

The abolition of paragraph 10 of part 1 of Article 284 of the CPC will lead to the leveling of such principles of criminal proceedings enshrined in Article 7 of the CPC as observance of reasonable time limits of pre-trial investigation, ensuring the right to appeal against actions or inaction, and, ultimately, access to justice.

II. On the need for judicial control over the investigation timeframe

The institute of investigating judges in the current CPC was introduced to ensure judicial control over the actions / inactions of participants in criminal proceedings. Judicial control at the stage of pre-trial investigation is intended to prevent abuse of procedural rights of pre-trial investigation bodies, in particular, in terms of compliance with reasonable time limits. The proposed changes are unlikely to lead to greater efficiency of the pre-trial investigation, but will only result in a decrease in the level of judicial control at this stage.

The proposed amendments can be adopted only if an effective mechanism is created for the defense to appeal the prosecutor's procedural decisions and the investigating judge is empowered to make binding decisions.

In view of this, the proposal to grant the prosecutor exclusive powers to extend the pre-trial investigation cannot be supported.

The full text of the letter from the UBA’s Committee can be found at the link.

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