Ukraine

From Criminal Defense Wiki
Jump to: navigation, search

Introduction

Ukraine is located in Eastern Europe and is the second largest country in Europe. It gained its independence from the former Soviet Union in 1991 and is now home to over home to 46 million people, 77.8 percent of whom are ethnic Ukrainians, with sizable minorities of Russians (17%), Belarusians and Romanians. Ukrainian is the official language of Ukraine. Russian is also widely spoken. Ukraine is a unitary state composed of 24 “oblasts” – provinces -, one autonomous republic (Crimea), and two cities with special status: Kiev, its capital and largest city, and Sevastopol, which houses the Russian Black Sea Fleet under a leasing agreement. Ukraine is a republic under a semi-presidential system with separate legislative, executive, and judicial branches. Since the dissolution of the Soviet Union, Ukraine continues to maintain the second-largest military in Europe, after that of Russia. The country is rich in natural resources, such as iron ore, coal, color metal, oil, gas, mineral salts, clay and potential water power. It has developed a varied industry, concentrated mostly in and around big cities, such as Kiev, Zaporozhye, Dnepropetrovsk, Dnyeprodzerzhinsk, Odessa etc.

After gaining independence, the government has faced considerable difficulties in uniting the country due to some wishing to join mainland Europe whilst others would prefer closer links to Russia. The most high profile dispute in recent times was the Orange Revolution in Kiev during 2004 when thousands of supporters of Viktor Yushchenko in his campaign colours marched on Kiev in protest over political elections. Disputes with Russia and Gazprom over gas supplies have also plagued the country with the halting of the supply of gas to the Ukraine resulting in an energy crisis throughout parts of Europe. However, according to Freedom House the judiciary has become more efficient and less corrupt since the Orange Revolution.

Criminal justice system

The country's criminal justice system is based on both inquisitory and adversarial justice principles. The age of criminal responsibility is 16 years. Crime victims have the right to actively participate in criminal investigations, prosecution, and sentencing, and the legal status of victims is described in Ukraine's Code of Criminal Procedure.

Upon its accession to the Council of Europe in 1995, Ukraine made a number of commitments, including the enactment of modern criminal procedure legislation. Council of Europe has already contributed to drafting this legislation, in particular the new Criminal Procedure Code (CPC), by providing expert advice.[1]

The new Code of Criminal Procedure, which came into force on November 20 2012, has drastically altered the national criminal justice system (which had largely remained unchanged since 1960) and marks the beginning of a new era. The changes affect virtually all stages of the criminal process, from the initiation of the criminal proceeding up to the final judgment. The new code grants greater power to the judicial bodies at the pre-trial investigation stage. The majority of investigative actions, restraint measures and other actions limiting protected human rights may now be initiated only upon a motivated decision of the investigative judge. Unlike under the previous code, the new code stipulates that only an attorney can serve as defence counsel in a criminal proceeding. The new code to some extent marks the liberalisation of the legal system. For example, restraint measures in the form of custody are imposed in respect of the accused only in exceptional cases and are often replaced by less serious restraint measures, such as bail. House arrests have also been introduced, which have effectively replaced taking the accused into custody in cases where the penalty involves a deprivation of liberty.

According to the official statistics, following adoption of the new code, the number of cases in which the accused is taken into custody has been halved from that of previous years, while the imposition of fines has significantly increased. An increase in house arrests has also been observed, with more than 500 cases documented.[2]

Today, the effective implementation of the Code is one of the conditions for the signature of the EU-Ukraine Association Agreement.[3]

Human rights

Until very recently human rights in Ukraine were better than those in most former Soviet republics and Ukraine was labeled as "Free" by organizations such as Freedom House. However after Viktor Yanukovych became a president of Ukraine in 2010, Freedom House labeled Ukraine "Partly Free" in 2011, 2012 and 2013. Amnesty International also signaled a significant deterioration of the observance of human rights in Ukraine in 2011.

In 2011 Ukraine adopted reforms to facilitate closer association with the European Union and adopted new laws on access to information and refugee protection.[4]

The October 28 2012 parliamentary elections constituted, however, a step backward from democratic progress made during other recent national elections. Security forces generally reported to civilian authorities. The most serious human rights problem during the year remained the politically motivated imprisonment of former prime minister Yulia Tymoshenko and former interior minister Yuriy Lutsenko. A second major problem was the failure of the October 28 parliamentary elections to meet international standards of fairness and transparency. The third major human rights problem was increased government interference with and pressure on media outlets, including government tolerance of increased levels of violence toward journalists.

Other human rights problems were abuse of persons in custody, including beating and alleged torture of detainees and prisoners; harsh and unhealthy conditions in prisons and detention facilities; an inefficient and corrupt judicial system; arbitrary and lengthy pretrial detention; inadequate provisions for asylum seekers; pervasive corruption in all branches of government; government pressure on nongovernment organizations (NGOs); societal violence against women and abuse of children; societal discrimination against, and harassment of, religious and ethnic minorities; trafficking in persons; a rise in discrimination and violence against lesbian, gay, bisexual, and transgendered (LGBT) persons; and discrimination toward persons with HIV/AIDS that endangered their prospects for treatment.

The government generally did not prosecute security officials who committed abuses, especially against prisoners and members of minority groups. Prosecutions for corruption, which were frequent, were often criticized as selective and politically motivated. Impunity was a problem throughout the government.[5]

Type of legal system

The legal system of Ukraine is based on the framework of civil law, and belongs to the Romano-Germanic legal tradition. The main source of legal information is codified law. Customary law and case law are not as common, though case law is often used in support of the written law, as in many other legal systems. Historically, the Ukrainian legal system is primarily influenced by the French civil code, Roman Law, and traditional Ukrainian customary law. The new civil law books (enacted in 2004) were heavily influenced by the German Bürgerliches Gesetzbuch.[6]

Legal aid situation

The right to free legal aid is guaranteed by the Constitution of Ukraine (254k/96-VR) as the right of a citizen of Ukraine, a foreigner, a stateless person, including refugees, to receive free primary legal aid in full scope, that includes the right of certain categories of entities to receive free legal aid in cases set forth by this Law. While exercising the right to free legal aid, it is not allowed to apply privileges or restrictions vis-à-vis persons based on race, skin colour, political, religious and other convictions, and gender, ethnical and social background, place of living, language and other factors.

The state policy in the area of granting free legal aid shall be based on the following principles:

1) rule of law; 2) legality; 3) availability of high quality legal aid 4) provision of free legal aid 5) guaranteed state funding.

The issue of granting legal aid in Ukraine shall be regulated by the Constitution of Ukraine (254k/96-VR), the Legal Aid Law, and other laws of Ukraine, ratified by the Verkhovna Rada of Ukraine.[7]

Sources of defendants' rights

The main source of defendant’s rights is the Code of Criminal Procedure of Ukraine. On 20 November 2012, a new Code of Criminal Procedure came into force. This was the first time that the rules of criminal procedure have been entirely changed in post-Soviet Ukraine. The New Code repeals and replaces the previous Code of Criminal Procedure, which had been in force from 1961. The New Code has been widely praised by the legal community in Ukraine for the much more equal balance it strikes between the interests of prosecutors and defendants, and the greater control it gives defendants over the course of criminal proceedings. Until now, this control lay almost entirely in the hands of the prosecution.[8]

Some fundamental rights are guaranteed by the Constitution of Ukraine:

  • Article 30. the right to inviolability of one’s domicile
  • Article 59. The right to legal assistance
  • Article 61. ne bis in idem
  • Article 62. presumption of innocence
  • Article 63. right to non-self incrimination

International sources

Ukraine is the party to the following international treaties:

  • • International Covenant on Civil and Political Rights (ICCPR)
  • • (First) Optional Protocol to the ICCPR
  • • International Covenant on Economic, Social and Cultural Rights
  • • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
  • • Optional Protocol to CEDAW
  • • Convention on the Rights of the Child (CRC)
  • • Optional Protocol to the CRC on the involvement of children in armed conflict
  • • International Convention on the Elimination of All Forms of Racial Discrimination
  • • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • • Optional Protocol to the Convention against Torture
  • • Convention relating to the Status of Refugees (1951)
  • • Protocol relating to the Status of Refugees (1967)

Pre-trial procedures

Police procedures

Police services in Ukraine are provided by the Ministry of Internal Affairs (MIA) which is responsible for the Militia – the national police authority. Ukraine's police force has recently undergone several reforms. Central, regional and local police authorities are active in Ukraine. Mounted police also plays an important role in Ukraine and can often be seen patrolling the streets.

Police ill-treatment remains widespread in Ukraine according to a new report on the country by anti-torture monitors. Beatings and torture continue unabated in the Ukraine in spite of the new Criminal Procedure Code adopted by the government in late 2012. No concrete steps have been taken to set up an independent police accountability mechanism, allowing the police to get away with shocking levels of mistreatment of detainees. In its report, “Ukraine: Don’t stop halfway: Government must use new Criminal Procedure Code to end torture” Amnesty International examined the cases of torture and other ill-treatment and called on the government to seize the opportunity created by the new Criminal Procedure Code to establish a State Investigation Bureau as an effective deterrent to would-be torturers among the police.

Complaint

During pre-trial proceedings, the victim shall have the right to have his application that a criminal offence has been committed against him and to be recognized as victim accepted and registered promptly, the right to obtain from the competent body where he has lodged the application, a document confirming the filing and registering of the application, as well as the right to produce evidence which support his application.[9]

Materials of criminal proceedings, complaints, applications, motions and other procedural documents stipulated in the law, which are filed with the court and which may be subjects to judicial hearing shall be subject to compulsory registration, in the order of their submission, in the court’s automated workflow system. Such materials shall be registered by the respective court personnel on the date of their receipt.

Investigator, public prosecutor shall be required immediately but in any case no later than within 24 hours after submission of a report, information on a criminal offense that has been committed or after he has learned on his own from any source, about circumstances which are likely to indicate that a criminal offence has been committed, to enter the information concerned in the Integrated Register of Pre-Trial Investigations, and to initiate investigation. The investigator engaged in pre-trial investigation will be appointed by the supervisor of a pre-trial investigation chief.[10]

Pre-trial detention

In the course of criminal proceedings, no one shall be kept into custody, be detained or otherwise restrained in their right to freedom of movement upon criminal suspicion or charge other than on grounds and according to the procedure specified in the Code of Criminal Procedure. Everyone who has been taken into custody or apprehended upon suspicion or charge of having committed a criminal offence or otherwise deprived of liberty shall as soon as practicable be brought before an investigating judge to decide on the lawfulness and reasonableness of their detention, other deprivation of liberty and continued custody. The detained person shall be promptly released from custody if within 72 hours from the moment of his detention he is not served a reasoned court decision on keeping in custody. A person’s detention, taking into custody or other restraint in his right to freedom of movement, as well as his location, must be immediately brought to notice, as provided he rein, of his close relatives, family members or other persons of such person’s own choosing.[11]

Arrest

Under Ukrainian law the police can “detain” a person on suspicion that he or she have committed a crime but he or she cannot be formally “arrested” until the court authorises this.

Search

A search is conducted with the purpose of finding and fixing information on circumstances of commission of criminal offense, finding tools of criminal offense or property obtained as a result of its commission, as well as of establishing the whereabouts of wanted persons. A search shall be based on investigating judge’s ruling. Whenever it is necessary to conduct a search, investigator with approval of public prosecutor, or public prosecutor shall submit an appropriate request to investigating judge containing the information required by the Code of Criminal Procedure, including the ground for search, brief description of circumstances of the criminal offense in connection with investigating which the request is submitted, information about objects, documents or individuals to be found etc. The request shall be required to be attached originals or copies of documents and other materials by which public prosecutor, investigator substantiates the arguments of the request, as well as an extract from the Integrated Register of Pre-Trial Investigations related to the criminal proceedings in the framework of which the request is submitted. A request for search shall be considered in court on the day of receipt, with participation of investigator or public prosecutor. Investigating judge shall reject a request for search unless public prosecutor, investigator proves the existence of sufficient grounds to believe that: a criminal offense was committed; objects and documents to be found are important for pre-trial investigation; knowledge contained in objects and documents being searched may be found to be evidence during trial; and objects, documents or persons to be found are in the home or any other possession of a person indicated in the request.

The victim, the suspect, defense counsel, representative, and other participants to criminal proceedings may be invited to attend. Whenever investigator, public prosecutor needs assistance in issues requiring special knowledge, they may invite specialists to participate in the search. The investigator, public prosecutor shall take adequate measures to ensure that persons whose rights and legitimate interests may be abridged or violated are present during such search.[12]

Identification

Before presenting an individual, dead body or object for identification, investigator, public prosecutor in advance shall find out if the identifying person can identify this individual, dead body or object, ask him about outward appearance and characteristic signs of this individual, dead body or object, as well as about circumstances under which the identifying person saw this individual or object, and draw up a record thereon. If the person states that he is unable to list characteristic signs which can help him to identify the individual, dead body or object but is able to identify him by the totality of signs, the record shall state by the totality of which signs he can identify the individual, dead body or object concerned. It is forbidden to show in advance to the identifying person the individual, dead body or object subject to be presented for identification and provide other information on characteristic signs of this individual or object.

The individual to be identified shall be shown to the identifying person together with other individuals of the same sex, whose number should be not less than three and who should not have clear differences in the age, outward appearance, and garments. Prior to presenting an individual for identification, he is invited, in the absence of the identifying person, to take any place among other individuals who are presented. If necessary, identification may be conducted by photos or video recording materials. Identification by photos or video recording materials shall preclude presentation of the individual to identification at a later time. A photo of the individual to be identified shall be presented to identifying individual together with other photos whose number shall not be less than three. Photos presented for identification should not have sharp differences in the form and other particulars, which seriously affect visual perception of the image. Individuals shown on other photos should be of the same sex and should not be sharply different in the age, outward appearance and garments from the individual to be identified. Materials of video recording containing image of the individual to be identified may be presented only on condition that there are at least four individuals who should be of the same sex and should not be sharply different in the age, outward appearance and garments from the individual to be identified.

The object to be identified shall be shown to the identifying person among other similar objects of the same type, quality and without clear differences in outward appearance, in the number of not less than three. Identifying person is invited to point at the object which he is supposed to identify, and to explain by which signs he has identified the object. If there are no other similar objects, the identifying person is invited to explain by which characteristic signs he has identified the object which has been presented alone.[13]

Interrogation

The suspect, the accused and the victim shall have the right to give testimony during both the pre-trial investigation and court hearing. Interrogation is conducted in the place of pre-trial investigation or in other place upon agreement with the individual to be interrogated. Interviewing may not last more than two hours without breaks, and in the aggregate more than eight hours per day. Before being interrogated, the person of the individual concerned is established, his rights and the way in which interviewing is conducted are explained.

If the suspect waives answering questions, giving testimony, the interviewer is required to stop him immediately after such waiver. Photographing, audio or/and video recording may be made during interviewing. The interviewee may use his own documents and notes during interviewing if his testimony involves any calculations other information difficult to keep in memory. If the interviewee so desires, he may provide his testimony written by his own hand. Based on such written testimony, he may be asked additional questions. A person is allowed not to answer questions with regard to circumstances in whose respect there is a direct prohibition in law (secrecy of confession, medical secrets, defense counsel’s professional secrets, secrecy of deliberation room etc.), or which may become grounds for suspicion, accusation of commission by himself.

Right to counsel

According to the Ukrainian Code of Criminal Procedure , the suspect should have, on his first demand, a counsel and consultation with him prior to the first and each subsequent interview under conditions ensuring confidentiality of communication, and also upon the first interview to have such consultations with no limits as to their number or duration; the right to the presence of defense counsel during interviews and other procedural actions, refuse from services of counsel at any time in the course of criminal proceedings; have services of a counsel provided at the cost of the state in the cases stipulated for in this Code and/or the law regulating provision of legal aid at no cost, including when no resources are available to pay for such counsel.

Rights of the accused at all times

The matter and manner of criminal proceedings, as stated by the Ukrainian Code of Criminal Procedure must conform to the general principles of criminal proceedings such as, but not limited to:

  • 1) the rule of law;
  • 2) legitimacy;
  • 3) equality before law and court;
  • 4) respect for human dignity;
  • 5) ensuring the right to liberty and security of person;
  • 6) inviolability of home or any other possession of a person;
  • 7) confidentiality of communication;
  • 8) non-interference in private life;
  • 9) security of the ownership right;
  • 10) presumption of innocence and conclusive proof of guilt
  • 11) freedom from self-incrimination and the right to not testify against one’s close relatives and family members;
  • 12) prohibition of double jeopardy
  • 13) ensuring the right to defense;
  • 14) access to justice and the binding nature of court rulings
  • 15) adversarial nature of parties, freedom to present their evidence to the court and prove the preponderance of this evidence before the court
  • 16) directness of examination of testimonies, objects and documents;
  • 17) ensuring the right to challenge procedural decision, actions or inactivity;
  • 18) publicity of criminal proceedings;
  • 19) optionality of criminal proceedings
  • 20) publicity and openness of judicial proceedings and their full recording using technical means
  • 21) reasonable time for criminal proceedings;
  • 22) language of the criminal proceedings

Fair trial rights

The rights to fair trial are established both by the Code of Criminal Procedure (Articles 11, 12, 17, 212, 21, 193, 18, 384) and the Constitution of Ukraine (Title II, Articles 59, 55).

Freedom from prolonged pre-trial detention

The detained person shall be promptly released from custody if within 72 hours from the moment of his detention he is not served a reasoned court decision on keeping in custody.[14]

Freedom from punishment

Any doubt as to the proof of the guilt of an individual shall be interpreted in this person’s favor.[15]

Respect for human dignity

In the course of criminal proceedings, it shall be prohibited to subject an individual to torture or to inhuman or degrading treatment or punishment, or to threaten or use such treatment, or to keep an individual in humiliating conditions, or to force to actions which humiliate dignity.[16]

Right to counsel

Article 59 of the Constitution of Ukraine states that everyone shall have the right to legal assistance. Such assistance shall be rendered free of charge in cases stipulated by law. Everyone shall be free to choose the defender of his rights.

Right to habeas corpus

Everyone who has been taken into custody or apprehended upon suspicion or charge of having committed a criminal offence or otherwise deprived of liberty shall as soon as practicable be brought before an investigating judge to decide on the lawfulness and reasonableness of their detention, other deprivation of liberty and continued custody.[17]

Right to medical care

the prompt provision of adequate medical assistance and fixation of any bodily injuries or deterioration of the apprehended person’s state of health must be ensured by medical personnel. If the detainee so wills, a specific person of his choosing who is certified to provide medical assistance may be allowed to be amongst providers of medical care to the detainee.[18]

Right to a fair trial

Everyone shall be guaranteed a right to a fair trial.[19]

Right to notice of charges

The accused has a right to know merits of and grounds for the suspicion or charges.[20]

Right to non-self incrimination

No one shall be compelled to admit their guilt of a criminal offence or to give explanations, testimonies, which may serve a ground for suspecting them or charging with a commission of a criminal offence. Everyone shall have the right to keep silence about suspicion, a charge against him or waive answering questions at any time, and, also, to be promptly informed of such right. No person may be compelled to give any explanations or testimonies, which may serve a ground for suspecting his close relatives or family members of, or charging them with, commission of a criminal offence.[21]

Right to aspeedy trial and impartial judge

Everyone shall be guaranteed the right to a fair trial and resolution of the case within reasonable time limits by independent and impartial court established on the basis of law.[22]

Right to a trial by jury

the person accused of committing a crime punishable with life imprisonment, in the course of the preparatory court session shall have the right to make a motion for hearing his case in criminal proceedings in the trial by jury.[23]

Right to appeal

A defendant found guilty has a right to submit an appeal to the appellate court.[24]

Ways to protect rights

Exclusionary rule of nullity of the procedure

According to the Code of Criminal Procedure, inadmissible shall be evidence obtained through significant violation of human rights and fundamental freedoms guaranteed by the Constitution of Ukraine and international treaties the Verkhovna Rada of Ukraine has given its consent to be bound by, as well as any other evidence resulting from the information obtained through significant violation of human rights and fundamental freedoms.

Article 89 of the Code states that the parties to the criminal proceedings and the victim may move during trial for evidence to be declared inadmissible or raise objection against declarating evidence inadmissible.

Civil action

A civil plaintiff shall have the rights and duties of a victim, as provided for by this Code, to the extent that they relate to a civil action, as well as the right to sustain or abandon the civil action before the court retires to consider the judgment. The civil plaintiff shall be served notice of the rulings issued in the criminal proceedings in relation to the civil action and receive copies thereof, where and as provided in this Code, with a view to informing the victim and forwarding him the copies of such rulings.

Motions

Parties to criminal proceedings shall have equal rights with regard to collecting and producing items, documents, other evidence, motions, complaints, as well as to enjoy other procedural rights provided by the present Code.

Rights in prison

Conditions of confinement

According to Article 29 of the Constitution of Ukraine, no one shall be arrested or held in custody except under a substantiated court decision and on the grounds and in accordance with the procedure established by law.

In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by court within seventy two hours. The detained person shall be immediately released if a substantiated court decision regarding his detention is not served to them within seventy-two hours. Every person, arrested or detained, shall be informed without delay of the reasons for his arrest or detention, apprised of his rights, and from the moment of detention, shall be given an opportunity to personally defend himself/herself or to receive legal assistance from a defender.

Every person detained shall have the right to challenge his detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of such an arrest or detention.

Immigration detention

The Code of Criminal Procedure provides that the suspect, accused who is a national of another State and is kept in custody, shall have the right to meet a representative of the diplomatic or consular mission of his State, and the administration of the detention facility shall be obliged to provide such opportunity.

Right to medical care in prison

The Code of Criminal Procedure provides that the suspect, accused who is a national of another State and is kept in custody, shall have the right to meet a representative of the diplomatic or consular mission of his State, and the administration of the detention facility shall be obliged to provide such opportunity.

  • 1) Time, place, means, and other circumstances of the commission of a socially dangerous act or criminal offence;
  • 2) Commission of this socially dangerous act or criminal offence by the person concerned;
  • 3) Existence of this person’s mental disorder in the past, degree and nature of mental disorder or mental disease at the time of commission of the socially dangerous act or criminal offense, or at the time of pre-trial investigation;
  • 4) Behavior of the person both before and after the commission of the socially dangerous act or criminal offence;
  • 5) The danger which the person presents is in consequence of his mental state, for himself/herself and for other persons, as well as well as the likelihood of such person causing other serious damage;
  • 6) Nature and amount of damage caused by the socially dangerous act or criminal offence.

Restriction of rights

According to Article 148 of the Code, where there is a good reason to believe that it is necessary to restrict a suspect in his enjoyment of a special right for the purpose of stopping a criminal offence or preventing commission of another offence, stopping or preventing a suspect’s wrong-doing intended to obstruct criminal proceedings, or securing compensation of damage caused by a criminal offence, the investigator, public prosecutor, other competent person has the right to temporarily seize documents confirming special right from the person lawfully apprehended by them, as prescribed in Article 208 of this Code.

Documents confirming the following special rights may be temporarily seized:

  • 1) right to operate a vehicle or a ship;
  • 2) right to hunt;
  • 3) right to conduct entrepreneurial activity.

Temporary restriction of the enjoyment of special right may be imposed by decision of investigating judge and during pre-trial investigation for a period not exceeding two months.

Women's rights in prison

The Code of Criminal Procedure of Ukraine doesn’t have any specific provisions regarding women’s rights in prison.

Court procedures

The rules of court proceedings are established by Section IV of the Ukrainian Code of Criminal Procedure.

Preparatory proceedings

Having received the indictment, motion to enforce compulsory medical or educational measures, or motion on discharge from criminal liability, the court shall within five days after the day of receipt thereof, assign the date of preparatory court session for which participants in court proceedings are summoned. A preparatory court session is conducted with participation of public prosecutor, the accused, defense counsel, victim and his representative and legal representative, civil plaintiff, his representative and legal representative, and civil defendant and his representative, as provided by the rules of trial in the present Code. Upon fulfilling the requirements specified in Articles 342 through 345 of the present Code, the presiding judge asks the opinions of the participants in court proceedings regarding the possibility of assigning trial.

In a preparatory court session, the court may take the following decisions:

  • 1) Approve agreement or refuse in its approving and return criminal proceedings to public prosecutor for continuation of pre-trial investigation in accordance with the procedure of the Code of the Criminal Procedure;
  • 2) Close proceedings;
  • 3) Return the indictment, motion to enforce compulsory medical or educational measures to the public

prosecutor if they do not comply with the requirements of the present Code;

  • 4) Forward the indictment, motion to enforce compulsory medical or educational measures to an

appropriate court for definition of jurisdiction, in case the criminal proceedings concerned is found to be not under the jurisdiction;

  • 5) Assign trial based on the indictment, motion to enforce compulsory medical or educational measures.

As a matter of preparation for trial, the judge shall:

  • 1) assign the date and place for trial;
  • 2) find out whether or not the trial must be conducted in private court session;
  • 3) dispose the issue of the composition of participants in trial;
  • 4) consider motions of the participants in court proceedings on:

citing certain persons for examination in court; demanding and obtaining certain objects or documents;

  • 5) do whatever is necessary to prepare trial.

During preparatory court session, the court may, upon motions of participants in court proceedings, enforce, change or repeal measures to ensure criminal proceedings including the measure of restraint enforced in respect of the accused. In absence of such motions from parties to criminal proceedings, the application of measures to ensure that the criminal proceedings decided on during pre-trial investigation shall be deemed to continue.

Completing of preparatory proceedings and assigning trial

Upon completion of preparation for trial, the court passes the ruling to assign trial. The trial must be assigned for a date within ten days after the passing of ruling to assign it.

Trial

Nature of the trial

Trial is held in court session with mandatory participation of parties to criminal proceedings. Victim and other participants in criminal proceedings shall be summoned to appear in court session. Court session is held in a specially equipped premise named the courtroom. Individual procedural actions, if necessary, may be conducted outside the courtroom. Trial in criminal proceedings shall be conducted in one court’s composition.

Defendant

If the accused against whom such measure of restraint as keeping in custody was not enforced, does not appear, upon summons, in court session without valid reasons, the court postpones the trial, fixes the date of new court session, and takes measures to ensure his appearance before court. The court may also pass the ruling on compelled appearance of the accused and/or the ruling on imposition of pecuniary penalty.

Public prosecutor and defense counsel

If public prosecutor or defense counsel does not appear in court session upon notice in criminal proceedings in which the participation of the defense counsel is mandatory, the court postpones the trial, fixes date, time and place of a new court session, and takes measures to ensure their appearance in court. At the same time, if the reason for non-appearance is invalid, the court raises the issue of liability of the public prosecutor or defence counsel who failed to appear before the bodies which are authorised by law to initiate disciplinary proceedings against them. If a public prosecutor is no longer able to participate in the trial, he is replaced with another one. If defense counsel is no longer able to participate in the trial, the judge presiding in court session proposes to the accused to within three days select another defense counsel. If in criminal proceedings where the participation of defense counsel is mandatory, the appearance at court session of the defense counsel selected by the accused, is not possible within three days, the court postpones the trial for a period necessary for the defense counsel to appear, or concurrently with postponing the trial, shall involve a defense counsel to provide defence by appointment. The court shall be required to give public prosecutor and defense counsel who previously did not participate in the proceedings concerned, the time sufficient for reviewing materials of the criminal proceedings and preparing for participation in the court session.

Expert witnesses

If a witness, specialist, interpreter or expert does not appear in court session upon summons, the court, having heard the opinion of participants in court proceedings and after having interrogated other witnesses, fixes new court session and takes measures to ensure his appearance. The court also has the right to pass a ruling to compel the appearance of the witness and/or a ruling to impose on him a pecuniary penalty in the cases and in accordance with the procedure laid down in Chapters 11 and 12 of the present Code. Appearance in court of the interpreter (except where he is committed by court), witness, specialist or expert shall be ensured by the party to criminal proceedings which has filed the motion on his summons. The court shall assist the parties to ensure the appearance of such persons by way of court summons.

Judges

Whenever a judge cannot participate in court session, he shall be replaced by another judge. After a replacement of a judge, a trial restarts. The court may by its reasoned ruling decide that there is no need to re-start the trial and conduct a new all or some of the procedural action performed during trial before replacement of a judge, provided such decision will not prejudice the trial and that the following conditions are met:

  • 1) the parties to criminal proceedings, the victim, do not insist on a new conduct of procedural actions already performed by the court before replacement of a judge;
  • 2) the judge who replaces the resigning judge has familiarised himself with the course of court proceedings and materials of criminal proceedings available to the court, is in agreement with the procedural decisions taken by the court and deems inexpedient to conduct anew the procedural actions performed before replacement of a judge.

In criminal proceedings requiring significant time, a reserve judge shall be appointed to be staying in the courtroom throughout the trial. The decision concerning a reserve judge shall be rendered concurrently with the appointment of preliminary court session by the court to be burdened with the trial of the case. An appropriate entry concerning the appointment of a reserve judge shall be made in the journal of court session. If, in the course of court session, a judge is replaced by the reserve judge, the trial continues. In such a case, the new composition of the court shall complete trial.

Victims

If the summoned victim duly notified on the date, time and place of the court session, does not appear in court, the court having heard the opinion of participants in court proceedings, decides to conduct the trial without victim or to postpone the trial, depending on to what extent it is possible to ascertain all circumstances during trial in his absence. The court may impose pecuniary penalty on the victim in cases and in accordance with the procedure provided for by Chapter 12 of this Code.

Sentencing

A court decision is pronounced publicly immediately after the court has left deliberation room. Judge presiding in court session explains contents of the decision, procedure and time limit for its challenge. After the sentence has been pronounced, presiding judge shall advise the defendant, defense counsel, his legal representative, victim, his representative of their right to file a plea for pardon, the right to review journal of court session and submit written comments thereto. The defendant committed to custody as a measure of restraint is advised of the right to submit motion to be brought to the court session of the court of appellate instance.

Appeals

According to Article 393 of the Code of Criminal Procedure, appellate complaint may be submitted by:

  • 1) a defendant found guilty, his legal representative or defense counsel, as regards the defendant’s interests;
  • 2) a defendant in whose respect a judgment of acquittal has been passed, his legal representative or defense counsel, as regards the motives and grounds for acquittal;
  • 3) the suspect, accused, his legal representative or defense counsel;
  • 4) legal representative, defense counsel of an underage person or underage person himself/herself in whose respect the issue has been disposed of application of a compulsory educational measure, as regards the underage person’s interests;
  • 5) legal representative and defense counsel of a person in whose respect the issue has been disposed of application of compulsory medical measures;
  • 6) public prosecutor;
  • 7) victim or his legal representative or representative, as regards the victim’s interests but within the limits of demands submitted by them in the court of first instance;
  • 8) civil plaintiff, his representative or legal representative – to the extent related to the decision on the civil action;
  • 9) civil defendant or his representative – to the extent related to the decision on the civil action;
  • 10) other persons in cases specified by the Code

References

  1. http://euukrainecoop.com/2013/03/27/criminal-justice-system/
  2. http://www.internationallawoffice.com/newsletters/detail.aspx?g=912259c2-db57-4d53-86c4-ad11384ab349
  3. http://euukrainecoop.com/2013/03/27/criminal-justice-system/
  4. Human Rights Watch, World Report 2012: Ukraine, http://www.hrw.org/world-report-2012/world-report-2012-ukraine-0
  5. 2012 Country Reports on Human Rights Practices - Ukraine, http://www.refworld.org/category,COI,,,UKR,517e6dbdf,0.html
  6. German code civil, effective in January 1st 1900
  7. Ukraine's parliament: Unicameral parliament composed of 450 members
  8. http://www.lexology.com/library/detail.aspx?g=7d6a7c8e-aa92-4a1f-9308-0f985067e511
  9. Article 56 of the Ukrainian Code of Criminal Procedure
  10. Article 214 of the Ukrainian Code of Criminal Procedure
  11. Article 12 of the UCCP
  12. Article 236 of UCCP
  13. Article 229 of UCCP
  14. Article 12 of UCCP
  15. Article 17 of UCCP
  16. Article 11 of UCCP
  17. Article 12 of UCCP
  18. Article 212 of UCCP
  19. Article 21 of UCCP
  20. Article 193 of UCCP
  21. Article 18 of UCCP
  22. Article 21 of UCCP
  23. Article 384 of UCCP
  24. Article 55 of the Constitution of Ukraine



See Criminal Justice Systems Around the World