Between Past and Future
The new criminal code came into effect September 1. The importance of its enactment matches that of the constitution. Ukraine existed without the latter for five years and actually ten years without a criminal code. The existing one was adopted in 1960 under the command administrative system, so its effectiveness was highly questionable under the new conditions.
Naturally, the old code was eventually repeatedly amended, but it could no longer reflect the current realities. The new political system and transition to a market economy in practice had no effect on the old rigid punitive legal framework.
At first view more loyal and democratic, the new criminal code was drafted in 1993. Later, work was resumed on the strength of the new constitution, particularly one of its articles reading that man, his life, health, honor, and dignity are recognized as the greatest social asset. With time, the new code was approved by the Council of Europe. It does not provide for capital punishment and this is also in accord with international law. At the same time Mykola KHAVROLIUK, Candidate of Science in Law, head of the department of national security, defense, law enforcement and organized crime, and VR chief expert research director, believes that the new criminal code is unjustifiably severe and that it will only make the population even more cruel, and will by no means serve to improve the situation in the problem areas throughout Ukraine. The new sanction, arrest (the old criminal code provided only for confinement), even though reduced to a maximum of six months, compared to the old code, turns out a heavier burden on the suspect. Inmates will have new restrictions in terms of exercise time and visits. Another negative aspect, he says, is the greater number of articles envisaging criminal prosecution.
In fact, the said articles were included in keeping with the new constitution (e.g., damaging the environment, holding back wages or stipends for more than a month, damaging people’s health under the excuse of religious rites, even obstructing traffic). For the first time criminal prosecution is stipulated in retaliation for breaches of the election, labor, and other civil rights and liberties, inviolability of home, unlawful use of ballots, their falsification, wrong election turnouts, etc.). People’s Deputies and chairmen of village, township, or city councils unlawfully holding more than one office will also be criminally prosecuted.
One might well wonder how these articles will actually be implemented, all things considered. How can you make the employer pay wages on time? Maybe it is best to apply the labor laws. Such shortcomings are also found in the sections of the new criminal code dealing with new sanctions. Today, we have no places and no mechanisms for the public work envisaged as sanctions for certain misdemeanors.
Likewise, the new code’s declared orientation toward the future is questionable. As previously, criminal prosecution is envisioned for the registration of businesses abroad and for foreign currency transactions, while Ukraine’s integration into Europe is increasingly discussed. This would seem reason enough to lift all [legal] barriers in the road of Ukrainian-European business at all levels.
Nonetheless, the enactment of the new criminal code has certainly brought the Ukrainian punitive system into conformity with European standards, just as it has helped break with the atavisms of the Communist epoch when in most cases criminal prosecution was political. The new code is more humane in certain respects and this will allow sending people to prison only in retaliation for grave crimes, not for petty theft. The latter now entails fines, depending on the weight of evidence. Speculation [black marketeering] is no longer considered a crime and incarceration can be ordered only by a court of law. The latter clause could serve as a good prerequisite for decreasing the number of human rights violations in Ukraine. Evidence of this is also the presence of a sanction in retaliation for breaches of the right to education, free medical aid, as well as participation in strikes, even when breaching the secrecy of private correspondence and telephone conversations. Of course, the enactment of the new criminal code is only one quarter of what Ukraine must do to completely disown the Soviet legislative legacy. The fact remains that the new code will have no tangible effect without a new civil procedural and punitive procedural code. This and the enactment of a framework law on the judicial system remains Ukraine’s final commitment to the Council of Europe.
