Weekly analytics for 26 February – 03 March 

Draft Law № 12439 Passed the First Reading: Could Efforts to Protect Business Disrupt the Criminal Process?

Event

On February 25, the Verkhovna Rada of Ukraine adopted Draft Law №12439 “On amendments to the Criminal Procedure Code of Ukraine to enhance safeguards for business entities in criminal proceedings” as a basis.

The draft law aims to: 

– expand the rights of victims during the pre-trial investigation;

– strengthen protections for business entities by introducing additional safeguards against certain procedural measures and investigative (search) actions;

– enhancing the powers of defense attorneys and legal representatives in providing professional legal assistance to businesses during criminal proceedings;

– etc.

The draft law was developed by members of the Council for business support in wartime under the President of Ukraine, including entrepreneurs and lawyers. It was drafted in close cooperation with representatives of the business community and relevant experts. The process involves continuous review and analysis of the challenges businesses face in their interactions with law enforcement agencies, ensuring that emerging issues are systematically addressed.

CPLR’s assessment

Experts of the CPLR have repeatedly highlighted that a key challenge in refining Ukraine’s criminal procedural legislation is the lack of a systematic approach to amendments introduced to the Criminal Procedure Code of Ukraine. Although the Code maintains a delicate balance between the rights of the prosecution and the defense (upheld through the favor defensionis principle, adversarial proceedings, and the presumption of innocence) there are constant attempts to shift this balance in one direction or another. Proposals from the anti-corruption sector or the business community frequently disrupt this equilibrium. While intended to address legal enforcement issues on one side, they often create unintended consequences on the other. A striking example is the so-called “Lozovyi amendments” which have been subject to ongoing legislative revisions since 2018.

Draft Law №12439 introduces mechanisms aimed at strengthening the rights of the defense and victims while addressing systemic issues, such as restrictions on a suspect’s or defendant’s ability to freely use their property. However, some provisions risk upsetting the delicate balance between the parties in criminal proceedings and may lead to unintended negative consequences. Namely:

1. Amendments to Article 96 of the CPC expand the scope of testimony verification, applying it not only to witnesses but also to victims. However, equating the testimony of witnesses and victims is  fundamentally flawed. Witnesses are legally required to testify, while victims have the right but not the obligation to provide statements. Repeated questioning in certain types of cases, particularly those involving vulnerable individuals or sensitive crimes (such as offenses against life and health, sexual freedom, and bodily integrity), may result in re-victimization and cause significant psychological harm to victims. Amendments proposed to Part 2 of this article introduce the possibility of assessing victim testimony through the lens of his/her “reputation”. This may negatively impact investigations, especially in cases of sexual violence. Such provisions risk fostering victim-blaming narratives, such as discrediting a victim’s testimony based on their clothing choices or perceived behavior,  rather than focusing on the actions of the perpetrator.

2. The amendments to Article 98 of the CPC propose granting the prosecution the exclusive right to recognize material objects as evidence. It is essential to emphasize that evidence in criminal proceedings consists of factual data, based on which the investigator, prosecutor, investigating judge, and court determine the presence or absence of facts and circumstances relevant to the case and subject to proof (Article 84 of the CPC). Furthermore, evidence is collected by the parties to the criminal proceedings, the victim, or the representative of a legal entity involved in the case, following the procedures established in the CPC (Article 93). Therefore, the proposed amendments directly violate the constitutional principle of the adversarial principle of justice (clause 3, part 1, Article 129 of the Constitution of Ukraine). It is inappropriate for only one party (the prosecution) to have the authority to recognize certain objects as evidence. Both parties may present “their own evidence” which will ultimately be evaluated by the court during the trial stage of the criminal proceedings.

3. The amendments to Articles 132, 172, and 248 of the CPC, which regulate the application of measures to ensure criminal proceedings, propose rejecting the consideration of repeated motions and, in cases where the investigator or prosecutor who submitted them fails to appear without valid reasons. However, the CPC does not provide specific regulations for “leaving motions unconsidered” or its legal consequences. These cases contain signs of abuse of procedural rights – a concept present in the Civil Procedure Code, the Economic Procedure Code, and the Administrative Procedure Code of Ukraine, which should be incorporated into the Criminal Procedure Code. Currently, elements of this concept can be found in the “abuse of the right” provisions regarding motions for recusal.  Therefore, it would be more appropriate to introduce a general rule grounded in the principle of the inadmissibility of abusing procedural rights and outline the consequences of such abuse, rather than implementing amendments that lack adequate response mechanisms and fail to  poorly thought-out consequences, merely in the form of “leaving motions unconsidered”.

4. Amendments to Articles 160, 165, 243 and other provisions of the CPC, which grant victims the independent right to file motions with the investigating judge, may negatively affect the prosecution’s strategy in a particular criminal case. Specifically, this could prematurely disclose certain investigative steps, potentially leading to the destruction of evidence or other harmful outcomes. Such amendments significantly undermine the prosecutor’s constitutional authority to organize and lead the pre-trial investigation (clause 2, part 1 of Article 131-1 of the Constitution of Ukraine). As a result, criminal proceedings could shift from a two-party system  – prosecution and defense – to a three-party system, where each party has its own interests that may conflict with those of the others.

5. Amendments to Article 174 of the Criminal Procedure Code introduce a two-month time limit for the seizure of property (with the possibility of extension). While a time limit for the seizure of third-party property is justified, for the property of suspects, a single decision on the seizure should be sufficient until the investigation is concluded or the suspicion is dismissed. This is because the reasonableness (justification) of the suspicion is assessed whenever the investigation continues after the suspect is notified, and the court applies measures to secure the investigation. Therefore, the requirement to extend the seizure of a suspect’s property every two months seems unnecessary. While the practical benefits of such amendments are clear, the issue of illegal or unjustified property seizures should be addressed through complaints filed in accordance with the procedures established by the law.

6. The amendments to Article 214 of the CPC represent a step backward, reintroducing selective initiation of pre-trial investigations (“filtering procedures”), which directly violates European standards, especially the position of the European Court of Human Rights (ECHR) in cases related to the investigation of torture, murder, and property crimes. The issue of registering “frivolous”, “fact-based” or “unpromising” cases is not effectively addressed by these amendments. Instead, the proposed changes lie in streamlining the procedures for verifying information within criminal proceedings, closing cases under clause 1 and 2 of part 1 of Article 284, implementing a comprehensive criminal policy, introducing prioritization tools, and expanding the prosecutor’s discretion in criminal cases.

7. Amendments to Article 236 of the CPC require the mandatory involvement of specialists during searches aimed at locating electronic information systems, computer systems or their components, and mobile communication devices. These amendments impose unreasonable burdens on the prosecution, as involving a specialist in every search warrant execution is logistically challenging, particularly when immediate action is required. The practical issues these amendments aim to address should instead be resolved by holding investigators and prosecutors accountable through disciplinary action when searches are improperly conducted in an attempt to locate the relevant objects.

8. The amendments to Article 237 of the CPC, which allow for a search of a person’s home or other property based on the voluntary consent of the owner or at least one who legally in possession (without the need for a ruling from the investigating judge), directly violate the provisions of Article 30 of the Constitution of Ukraine. This article guarantees the inviolability of a person’s home and property, stipulating that access to a home can only be granted under a ruling from an investigating judge. While voluntary access may occur in practice, lowering the standard for admissibility of evidence obtained through this procedure could create widespread abuse by law enforcement. It is easy to foresee that searches conducted without a ruling from an investigating judge would be classified as “voluntary”. Additionally, such a lowering of standard for the admissibility of evidence (since the criminal procedural form is changed) contradicts the Constitution of Ukraine. 

9. The amendments to Article 243 of the CPC, which allow a judge to independently engage an expert in criminal proceedings, undermine the principle of dispositiveness enshrined in Article 26 of the CPC. The role of the judge in a criminal case is to act as an impartial arbiter, evaluating the evidence presented by the parties to make decisions based on reasonable doubt. When a judge takes the initiative to call for an expert’s involvement (such as believing that the previous expertise was insufficient, flawed, or etc.), the judge risks becoming a biased participant in the proceedings. As for the victim, this issue has been mentioned previously.

10. The proposed amendment to Article 372-1 of the CPC grants investigating judges and courts the authority to issue separate rulings in cases of violations or improper execution of procedural duties by participants in criminal proceedings, depending on the circumstances. However, neither the investigating judge nor the court should possess the authority to issue separate procedural decisions regarding such violations. During the pre-trial investigation stage, the investigating judge lacks the means to fully establish all the facts of the case to accurately determine whether a violation has occurred. Moreover, allowing the court to make such a decision could undermine the prosecutor’s role in the investigation and restrict the prosecutor’s authority. Thiswould also limit the objectivity of the court, which will later review the case concerning this criminal offense (negatively affecting the direct examination of evidence). Judges already have the option to submit a statement regarding criminal offenses or file a disciplinary complaint within their relevant authority without the need to amend the CPC. Additionally, there are existing procedural options to challenge the decisions, actions, or inactions of these individuals. The proposed amendments reflect the legislator’s attempt to address law enforcement issues through normative changes, particularly highlighting the shortcomings in the criminal and disciplinary responsibility of investigators, prosecutors, and other officials for unlawful actions.

Unfortunately, not all issues within the criminal justice system can be resolved through amendments to the CPC. Changing the legal framework alone does not alter the practical realities of law enforcement and its application. Additionally, there are broader concerns related to criminal policy, prioritization, accountability for unlawful actions, counteracting the abuse of rights, and more. Many of these issues depend on the specific actions of the participants in criminal proceedings and can be addressed through means other than legal amendments.

It is also worth noting that earlier, members of the Criminal and Criminal Procedure Law Committee of the Ukrainian Bar Association prepared an expert analysis of the draft law. Their conclusion was that, while the draft law has generally positive elements, it requires further refinement and clarification.

In this regard, the experts of the CPLR believe the draft Law № 12439 must be revised, taking into account the feedback and comments provided above. This revision should not only reflect a genuine intent to address issues in the application of the law that negatively affect business operations, but also due consideration to the principles of criminal proceedings that ensure a balanced criminal justice process. These principles include adversarial proceedings, the inviolability of an individual’s home or property, the immediacy of examining testimony, items, and documents, the reasonableness of time limits, as well as the principle of dispositiveness.