Criminal misdemeanours came into force in Ukraine: what does it mean?

On July 1, Law No. 2617-VIII entered into force, which introduced significant changes to the legislation in the field of criminal justice. From now on, criminal offences are divided into crimes and misdemeanours, and the exclusive right to investigate criminal offences next to investigators is granted to persons conducting initial inquiries. From a procedural point of view, the simplified procedure for investigating and conducting inquiries sometimes poses threats to human rights, as indicated by international organizations and the domestic Ministry of Justice. What is this reform about and what consequences will it have?

The problem with procedural law was that there was a uniform procedure for the investigation of all criminal offences, regardless of their gravity, which resulted in a low efficiency of the process. Consequently, the only subject of investigation of crimes was the investigator, whose workload could reach 300 criminal proceedings simultaneously, which is simply physically impossible to investigate.

Since the category of criminal misdemeanor constitutes about a quarter of all the elements of crimes in the Criminal Code of Ukraine, and in fact (according to statistics) it is more than 50% of all criminal offences committed in the country, the simplified system of investigation will offload the investigation. The release of investigative resources should lead to a more effective investigation of "serious" crime.

The simplified procedure of investigation will be handled by the inquirer. It may be an individual employee of Investigation Unit of the National Police, or it may be an authorized person from another unit, such as a patrol investigator. At least it is mentioned in the CPC of Ukraine. The organisation of work of the bodies of pre-trial investigation should be determined by themselves.

It has already been mentioned that it is impossible to use detention, which reflects the general idea of security of a person who has committed a criminal misdemeanour for the society. Moreover, the grounds for detaining a person for a criminal misdemeanour are even narrower, as provided in paragraph 1-2, part 1, Article 208 of the Criminal Procedure Code of Ukraine that is at the scene of the crime. In essence, a person should try to flee and to resist (see paragraph 298-2 of the CPC of Ukraine).

Now about the problems. There are a lot of discussion points on re-qualification of misdemeanours into crimes, evidence in cases of misdemeanours, investigation of special subjects, differentiation of criminal liability for a crime and misdemeanours for the purpose of deprivation of a deputy's mandate inter alia.

Yet the main problem of the procedural part of misdemeanours is that the simplified criminal procedure no longer requires the participation of a defender and the consent of the victim. In this case, the desire of the prosecutor and the confession of guilt of a person who has not even been provided with legal assistance is enough. For the court has the opportunity to consider an indictment without trial in the absence of participants in the proceedings, if the accused has unconditionally admitted his guilt. That is, a person admits to the commission of a criminal misdemeanour and is in the dock, he/she is convicted without the possibility of legal aid.

Violation of the right to defense and a number of other problems were the subject of the Opinion of the Directorate General Human Rights and Rule of Law DGI(2018) dated 7 – 12 October 2018  "to the second hearing of the draft law on misdemeanours. Some of them were taken into account, mainly technical or those related to the criminalization of intoxicated administration (which will be repealed in the coming days), while others, such as short periods of inquiry and violation of the right to defence – were not. It was for this purpose that the Ministry of Justice of Ukraine at the end of last year submitted the draft law #2411 to the Parliament with the aim to align the provisions of the CPC on criminal misdemeanors with recommendations of the Opinion, but it was withdrawn due to changes of government of Honcharuk. There were no attempts after that.

Conclusion. Criminal, misdemeanours are part of the reform of the criminal justice system. Its ultimate goal is to systematize criminal legislation, unload investigations and effectively investigate "minor" crimes. To achieve it, it is necessary not only to adopt a number of other legislative acts, but also to build bodies of inquiry that could qualitatively perform their work. Frankly speaking, in practice there will be a lot of destructive criticism of criminal misdemeanours, because there are problems. I myself talk about them all the time. At the same time, there is a place for development, changes, reforms which should take place in the near future.

Eugene Krapyvin,
CPLR expert
Source: Lb.ua