Weekly analytics for 06 — 12 December

Verkhovna Rada strengthens the SAP’s independence and partially repeals the Lozovyi Amendments

Event

On December 8, the Verkhovna Rada of Ukraine adopted the draft law №. 10060 “On amendments to the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine on strengthening the independence of the Specialized Anti-Corruption Prosecutor’s Office” as a whole. On the same day, the President of Ukraine signed the document, thus demonstrating the importance of progress towards European integration. The document is currently being prepared for publication and entry into force on January 1, 2024.

The law provides for amendments to the Criminal Procedure Code of Ukraine, the Law of Ukraine “On the prosecutor’s office”, and other laws of Ukraine that:

І. strengthen the autonomy and organizational independence of the Specialized Anti-Corruption Prosecutor’s Office by improving the procedure for competitive selection of the head and prosecutors of the SAP; strengthen the capacity of the SAP to regulate its own organizational structure and activities; clarify the powers of the SAP head; set forth an accountability mechanism for the SAP’s leadership based on assessment of the SAP’s performance and periodic external audit of its activities with the participation of external experts with international experience; and establish an internal control unit of the SAP with the authority to participate in the issues regarding bringing SAP prosecutors to disciplinary responsibility;

ІІ. partially repeal the provisions of the Criminal Procedure Code of Ukraine (introduced by the so-called “Lozovyi Amendments” in 2018) related to the system of calculating pre-trial investigation terms – namely, by amending Articles 219, 284, 294 and 615 of the CPC of Ukraine.

CPLR’s assessment

a) Regarding strengthening the independence of the Specialized Anti-Corruption Prosecutor’s Office

The CPLR’s experts previously prepared an assessment on the draft Law № 10060 and an assessment on the alternative draft Law № 10060-2. The experts’ consistent position supported strengthening of the SAP’s independence by: 1) granting the SAP the status separate legal entity; 2) improving the competitive principles for the selection of the head and prosecutors of the SAP; and 3) introducing external independence of the assessment (audit) on the SAP’s effectiveness. There were different options for how these ideas could be implemented by law, and as such, the model that was adopted differs from the one proposed by the CPLR’s experts – notably, as part of the relevant working group under the Verkhovna Rada’s Committee on Law Enforcement Activity.

At the same time, the CPLR’s experts rejected the idea of creating a separate disciplinary commission for the SAP, as it undermines the principles of unity of the prosecution system in Ukraine. The adopted version of the Law reflects a compromise model, where the internal control unit examines the materials of the disciplinary complaint before the Qualification and Disciplinary Commission of Prosecutors opens disciplinary proceedings, which may ensure greater impartiality in deciding whether to bring a SAP prosecutor to disciplinary responsibility.

In general, the draft law strengthens the SAP’s independence while preserving this body within the prosecution system and at the same time identifying a special position for it in the system of specialized prosecutor’s offices that are established as required within the prosecution system. In addition, this is one of the recommendations of Ukraine’s international partners, and the European integration processes envision strengthening the fight against corruption, in particular by improving the institutional capacity of anti-corruption bodies to perform their functions.

b) Regarding the partial repeal of the so-called “Lozovyi Amendments”

The “Lozovyi Amendments”, or rather the provisions of the criminal procedure legislation on the calculation of pre-trial investigation period and other provisions that came into force on March 16, 2018 (Law № 2147-VIII) have been already partially repealed twice on separate occasions:

1) a week after their entry into force, the requirement to file a motion to court at the place of registration of the pre-trial investigation body-legal entity was repealed (Law № 2367-VIII);

2) in 2019, the amendments on the state monopoly to conduct expert evaluations in criminal proceedings and judicial control over court rulings on the assignment of expert evaluation in criminal proceedings were repealed (Law № 187-IX).

Therefore, it would be more appropriate to say that draft Law №10060 provided for the “additional repeal of the Lozovyi Amendments” or, putting it more simply, a “return to the system of calculating terms that was in effect before March 16, 2018, taking into account certain peculiarities”. At the same time, this does not cover the full list of the so-called “Lozovyi Amendments”, since neither the adopted Law nor the draft Law №10100, which is dedicated to this subject (and which was considered as the principal draft in this issue), does not provides for the repeal of the possibility to appeal the notice of suspicion. Thus, one can only talk about “partial repeal of the partially repealed Lozovyi Amendments”. Given all of this, it is easier to talk about specific provisions of the CPC of Ukraine on the terms of pre-trial investigation, the notice of suspicion, etc., rather than use a generalized, simplified, and therefore popular term “Lozovyi Amendments”, which is not sufficiently defined and needs to be clarified each time.

First of all, it should be noted that according to Part 3 of Article 1 of the CPC of Ukraine, amendments to the criminal procedure legislation of Ukraine may be made only by the laws introducing amendments to this Code, and/or legislation on criminal responsibility, and/or legislation of Ukraine on administrative offenses. Therefore, it was impossible to amend all of the mentioned legislative acts with the single draft Law №10060, as this is a direct violation of the provisions of the CPC of Ukraine. Amendments to this Code should be made by a separate law. Unfortunately, the legislature repeatedly violates this provision.

As for the substantive part, the pre-trial investigation terms for the so-called “proceedings in fact”, i.e. criminal proceedings in which no person has been notified of suspicion, have been repealed. At the same time, one cannot talk about a complete return to the system of calculating pre-trial investigation terms that existed before March 16, 2018, since:

1) amendments to Art. 294 of the CPC of Ukraine concerning the extension of the terms of pre-trial investigation after notifying a person of suspicion have been repealed only partially (only part 1 of the article), while the provisions of part 3 of Art. 294 of the CPC of Ukraine, which preserve judicial control over the extension of the terms for 6 or 12 months, remain in force. At the same time, the possibility of multiple extensions is removed from the Code.

This distinction is a positive one, as it is the only component of the amendments introduced to the CPC of Ukraine by the so-called “Lozovyi Amendments” that has proven to be effective in practice. It led to the reduction in the practice of unlawful pressure on business in small towns, as the pre-trial investigation terms were repeatedly extended by prosecutors’ own resolution, thereby resulting in prolonged prosecutions of a person to exert unlawful pressure rather than for the purpose of investigation. Judicial control over the extension of pre-trial investigation after the notice of suspicion, i.e. after invasive intervention with human rights and freedoms, is in line with the general logic of the CPC of Ukraine, which requires reasonable pre-trial investigation timeframes, especially in cases where human rights and freedoms have been restricted – i.e., interim measures were applied (such as a precautionary measure was imposed, property was seized, etc.).

2) paragraph 10 of part 1 of Article 284 of the CPC of Ukraine remains in force – i.e., the duty of an investigative judge to terminate criminal proceedings after receiving a motion from the parties in the event the terms of pre-trial investigation after the notice of suspicion have expired (except in the case of notifying a person on suspicion of committing a grave or particularly grave crime against another person’s life and health).

By contrast, this distinction is debatable in its legal nature, since the consequences of the expiration of terms for pre-trial investigation and investigative/procedural actions beyond these terms should be assessed by a judge during the trial, namely from the point of view of whether it affected the admissibility of evidence in criminal proceedings. At the same time, terminating the proceedings on pro forma grounds is unjustified, since the circumstances of the expiration of terms may be different, including such that did not cause the deformation of evidence in criminal proceedings.

Finally, paragraph 20-8 of the Transitional Provisions of the adopted Law is controversial, and is worth quoting it in full for better understanding of the problem:

20-8. The provisions of part one of Article 219 of this Code, as amended by the Law of Ukraine “On amendments to the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine ,on strengthening the independence of the Specialized Anti-Corruption Prosecutor’s Office” shall apply to all criminal proceedings, in which pre-trial investigation or trial has not been completed before the Law of Ukraine “On amendments to the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine on strengthening the independence of the Specialized Anti-Corruption Prosecutor’s Office” comes into force.

According to the authors of the draft law, such a proscription can “save” criminal proceedings that were terminated by a court due to the expiration of terms for pre-trial investigations that were then continued by prosecutors in joint criminal proceedings – which caused a heated discussion, as these proceedings concerned grand corruption and were considered by the High Anti-Corruption Court of Ukraine. The legal position of the Supreme Court on this issue has changed several times. According to the latest position expressed by the Court in its Ruling in case № 725/5513/19 of February 16, 2023, a criminal proceeding is to be terminated even if it is part of a joint proceeding that has been assigned a number in the Unified Register of Pre-Trial Investigations as entered before March 16, 2018 (prior to that date, courts were guided by an approach that prosecutors rather than investigative judges extended the terms in such proceedings).

In reality, according to the general provisions of the CPC of Ukraine, the rules in force at the time of the beginning of a certain action or the adoption of a certain decision are to be applied (Article 5 of the Code). Therefore, it can be assumed that, most likely, no old proceedings, including the NABU’s joint proceedings in which the terms were extended by prosecutors rather than investigative judges, will be “saved”. The general provisions of the Code (Articles 5 and 9 of the CPC of Ukraine) have a higher legal force than any transitional provisions of the Law; as such, it is not possible to apply old rules, since procedural decisions on extending the terms were already made in the past, at the time the old rules were in effect. Thus, the relevant prescription of the transitional provisions simply becomes devoid of its meaning in view of the general principles of criminal procedure.

Thus, the adopted Law on partial repeal of the so-called “Lozovyi Amendments” is forward-looking and will principally help new proceedings, as it will (a) protect against the risk of non-extension of terms by an investigative judge in case of a justifiably prolonged investigation within the limitation terms of complex criminal proceedings, and (b) restore balance to criminal proceedings, according to which judicial control over the observance of human rights and freedoms enters into play only after the notice of suspicion (except, of course, for covert investigative (detective) actions). At the same time, the issue of repealing paragraph 10 of part 1 of Article 284 of the CPC of Ukraine – i.e., termination of criminal proceedings by court at the motion of participants due to the expiration of the statute of limitations – remains open, as does the systematization of provisions on the extension of terms for pre-trial investigation under Article 294 of the CPC of Ukraine.