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10 january 2013

7 myths about the new Criminal Procedure Code

  Ukraine has been living with a new Criminal Procedure Code for little more than one month now. It took effect on November 20th last year. It is too early, in my opinion, to give a proper assessment of its effectiveness or ineffectiveness. We should wait until the first trials and their results.

This does not stop others from producing "noise" that discredits the code using misinformation anduntruths. The objective fact that an honest assessment is not yet possible is drowning in a sea of negativity.

Why is this happening?

People often rely on such misinformation for different reasons. Firstly, the source of the CPC is problematic as anything coming from the government is always questionable.Citizens always expect the worst.

Secondly, law enforcement agencies - the police, secret police, prosecutors, etc. –are generally perceived as making use of a selective application of law.

Thirdly, there is the CPC itself - a new document, containing alarge amount of content: it takes time to grasp the document, time which its critics have obviously not applied.

Here are seven myths that have had the highest circulation in the media and some honest answers to the questions that these myths make:

The First Myth. "Authorities do not release the remains of individuals before receiving paperwork from the public prosecutor." This procedure was based on the alleged provisions of Part 4 of Article 238 of the CPC, which require written permission from the prosecutor to issue a death certificate, and this only after a forensic examination and a determination of the cause of death.

In fact, the mentioned article applies only to the investigative action by the prosecutor, and any investigative action, including the issuing of a death certificate, is impossible without entering data into the register of pre-trial investigations.

That is, without the application of a relative or signs of a violent death, a review by the prosecutor is not necessary for every death. Otherwise a death certificate is produced by other authorities according to another code of procedure.

Myth Two. "It is permissible to make anonymous statements to the police concerning the committing of a criminal offense."

The history of our country has made us particularly adverse to the practice of denunciation.It is understandable that individuals react painfully to the recovery of such a mechanism as anonymous tips to government authorities. But the new device in fact eliminates the possibility of anonymous allegations of crimes.

Indeed, paragraph 2 of Part 5 of Article 214 clearly states that in order to make a statement to the state register of pre-trial investigations one must give one’s own "first name and family name, and thefamily of the victim or applicant."

If an individual wishes to give information to the police concerning a crime, but fails to provide his or her name, then it is impossible to start criminal proceedings or investigation based purely on such anonymous allegations.

The Third Myth: "You must always carry a passport or other document of identification."

Critics who provide this myth argue that such a measure is necessary in order to avoid unjustified detentions or arrests.

However, the Code contains no such requirement. On the contrary, the possibility for law enforcement to detain citizens has been restricted through the new CPC. Article 209 defines detention as when one “has to stay next to the competent official or in premises prescribed by the competent official.”

This is an important difference from the old CPC because the new CPC requires that the detained person must be explained all of his/her rights under paragraph 8 of Article 209, and allow the person to immediately inform their relatives about the fact of detention.

The time in which a citizen can be held without being formally accused has also been limited: instead of 72 hours thedeadline is now24 hours for a notification of suspicion.

If during the day from the moment of detention the person is not given a written notice of suspicion, then he/she must be released.

If he/she is not released despite the lack of formal notification then he/she must assert their rights according toparagraph 2 of Article 206, either themselves or through a lawyer (important to note: the system of free legal aid began its full operation on 1 January 2013), and immediately turn to the investigating judge in order to bypass the police who are not doing their job appropriately.

If the detainee is handed a notice of suspicion on time, but not brought to court within 60 hours from the moment of detention then he/she should also be released. Or submit a similar request to the investigating judge.

Myth Four. "You can conduct a search without a court order." Any search must be based decision investigating judge - part 2 of Article 234.

The only exceptions are cases specifically provided for by the Constitution of Ukraine - Part 3 of Article 30 on entry into a dwelling associated with the preservation of human life and property, andpart 3 of Article 233 of the CPC that concerns the direct pursuit of suspects.

This exception is justified and acceptable in all democratic legal systems. When a suspect breaks into a home, or other premises, during a pursuit, the law enforcement officers should not stop pursuing and run to court to obtain authorization. They have an obligation complete the pursuit even if it means entering a dwelling.

But permission is absolutely required in order to obtain facts outside of the exceptions given above. Failure to attain permission would mean all the evidence obtained would be inadmissible.

Myth Five: "Increases the ability of the secret police to control our private life." The actions of the secret police are regulated partially in Chapter 21, "Secret police (ODA) actions."

Indeed, the list of covert action is impressive. However, the Code is nothing extraordinary in comparison with the European experience. 7 of the 9 measures require the sanction of a court, which had not existed in the old CPC. The activity of the secret police was previously closed off from society and outside judicial control.

Now the investigating judge is required tosecuritize the use of audio and video control individuals, theattainment, examination and seizure of correspondence, the interception of information systems and electronic information systems, public inspection of inaccessible places, housing, mounting location radio products observation place, thing, person , audio and video control locations.

Only immediateprevention of crime and the performance of special missionsrequiring minimal disclosure do not demand a court order.

Moreover, these covert actions cannot be performed on all criminal cases, but only to proceedings concerning serious or especially serious crimes.

Myth Six. “Defense attorneys do not have any rights." The old Code from 1960 contained a separate article 48, which included a list of rights given specifically to defense attorneys.The new CPC does not define a separate list of rightsbutrather gives defense attorneys the same rights as the accused - Part 4 of Article 46.

This innovation is justified by the fact that the suspect may independently exercise his defense, using the guarantees found in part 3 of article 42. And cases where the accused chooses to be defended by a lawyer, the attorney will implement the rights provided for the suspect in the same article.

The new CPC has also increased the equality of arms between the defense attorney and the prosecutor. By giving the defense the same rights as the accused it is also given the defense attorney the same rights as the prosecutor, except for specific rights inherent to the work of prosecutors (detention, search, seizure, etc.)

Myth Seven: "The simultaneous effect of the two Codes of 1960 and 2012 is a sign of ignorance of the legal authors of the impact of both documents working parallel to each other."

This is a rather unique situation for independent Ukraine. But this unfortunatereality is the result of theprogressive nature of the proposed changes, especially as regards the rules on admissibility of evidence.

The use of written testimony that has been acceptable in the old CPC has been replaced with a requirement for oral testimony in court proceedings. It is what is said in court that becomes evidence, not what was written before.

While I do not deny that it is problematic that cases that were begun prior to the implementation of the new CPC on November 20, 2012 make use of the old CPC, I believe that it is in the public interest to do so. If the new CPC were to apply to all cases, those that have come both before and after November 20, then there is a considerable risk that many cases would be thrown out because they do not meet the standards of the new CPC. While positive for the accused it would not be in society’s best interest.

P.S The continued application of the new CPC will inevitably lead to new myths. This is unfortunate for a number of reasons. Perhaps what is most unfortunate is that these myths away room within the public discourse for discussionsofreal problems surrounding the new CPC.

What we should be discussing is the need for separating the police, the prosecution, and the judiciary from political pressure, the introduction of a sustainable jury system, the abolition of separate legal regulation of operational activities etc..