Not too late to correct mistakes

The adoption of a new Code of Criminal Procedure (CCP) by parliament has caused a big stir in Ukrainian society, which is only natural because this event is important not only for the legal profession. It will be no exaggeration to say that the law of criminal procedure concerns every individual because anybody may happen to be an aggrieved or accused party. Besides, the adoption of this legal standard-setting instrument is also of great sociopolitical importance.

Political stability in this country will also depend on the extent to which the procedure of crime solution will be effective and legally correct. People will only trust the state and politicians when the latter manage to ensure unbiased investigation of criminal cases and fair court rulings. This is in fact the ultimate goal of the criminal procedure legislation. So the reform of the law of criminal procedure should be aimed at this very result.

It will be recalled that the CCP now in force was adopted as long ago as 1960, when Ukraine was part of the USSR. As this code was drawn up in line with the Soviet judicial system, it was repeatedly criticized. Indeed, the code was adopted at a time when interests of the state were placed above those of the individual, but so many amendments have been made to it that it can more or less meet the requirements of today. But, what is more, this code has an inner logic and its provisions have been time-tested, so it was not so much necessary to adopt a new one. What was enough to do at the current stage is update the code, introduce the institution of jurors, expand the rights of the defense, and ensure adherence to the principle of adversary trial.

Let us recall again that the chief aim of a CCP is to make sure that criminal cases be investigated and solved fast, completely, and impartially. Besides, the provisions laid down in the criminal procedure law should envisage a mechanism to protect individuals from unfounded accusations and to prevent unfair punishment of the people not implicated in crimes.

The old CCP quite clearly sets out the rights and duties of criminal justice parties as well as their actions to ensure that cases be solved and the guilty brought to justice.

At the same time, it is a fact that a very large number of people in Ukraine are in custody for the crimes they did not commit. It is this point that those who wanted the new CCP to be passed as soon as possible are focusing on.

This problem really exists, but not because the current criminal procedure law is imperfect. The point is that very many law-enforcers deliberately choose to violate CCP provisions only to show an improved clear-up rate. It is common knowledge that this has an essential effect on the career promotion of and higher material benefits for law-enforcers. But this is a different problem which could well be resolved by improving departmental bylaws.

It is also important to remember that any law is obeyed (or disobeyed) by people. So the investigation of a criminal case as well as the end result also depends on the people, i.e., the officials involved in criminal justice. Analyzing the problems of criminal justice, one should also bear in mind that there is no independent judicial branch of power in Ukraine.

Justice, which had been in its infancy even before, was finally destroyed when the law “On the Judicial System and the Status of Judges” was passed and the 1996 Constitution was restored.

These “reforms” resulted in a complete centralization of power in today’s Ukraine. All the more or less important judicial decisions are made on Bankova St. now, and the courts that depend on the executive branch only rubberstamp the decisions made by the Presidential Administration.

An illustrative confirmation of these words is sentences passed in the so-called “political trials,” where judges made political decisions under the guise of a court ruling.

That these sentences were legally unfounded was clear even to people without juridical education. The media made it possible for the entire country to watch legal bacchanalia at Kyiv’s Pechersk Court. Law-enforcement and court officials were deliberately breaking the law but were not held responsible for this. This could happen only because Ukrainian judges are totally dependent on the current political situation, i.e., on the will of the people who are wielding power today.

This allows us to draw the conclusion that the adoption of a new, even the best, CCP cannot solve the problem of illegal conviction. Incidentally, to solve this problem, Ukraine needs a political and legal reform. It is necessary that the law prevail in this country and any official or politician could be brought to justice for a breach of law.

At the same time, the law can only work in a rule-of-law state, which Ukraine is on paper only. But this is a different topic that requires a more detailed coverage.

Let us get back to the new CCP. It is no use making a thorough juridical analysis of it because it is eclectics pure and simple. There is no inner logic in this legal standard-setting instrument.

It is so confused that it would be wrong even to call it imperfect. It becomes clear, after you have read the new draft CCP, why the authors of this “masterpiece of legal thought” prefer to remain in the shadow.

All the general public knows is that this law was introduced at the President of Ukraine’s initiative and passed by the votes of the parliamentary majority.

Now about the consequences of putting the new CPP into practice. As it was said above, this code is too confused and bereft of juridical logic, which will, in the last analysis, make it necessary to “manually” manage criminal justice.

Naturally, the absence of a procedure clearly defined by the law offers good opportunities for abuses, which will in turn further aggravate, rather than solve, the problems that exist in criminal justice.

The lack of a fair approach to investigating criminal cases may trigger mass-scale discontent, which will finally result in a sociopolitical face-off. It is not ruled out that an attempt will be made to solve this problem with the use of force, when the parties to the conflict will take up arms.

And this is a more serious matter, when national security is at stake because this poses a real threat to the interests of the Ukrainian state and society.

As for those who drew up the new CCP, what goal did they set themselves by “railroading” this bill?

The first thing that comes to my mind is that the authors did not exactly care about penning an integrated and legally balanced legal standard-setting instrument. The impression is that this code was written just to show political opponents and society that the current government is viable and managed to carry out a reform of the criminal procedure law and to ensure the adoption of such an important document as CCP. But if the bill drafters had really wished to carry out a true reform and ensure the adoption of a high-quality standard-setting instrument, they would have attracted well-known criminal justice experts to the drafting and conducted a wide-scale debate of the new draft CCP.

Instead, we have received a code of criminal procedure drawn up by God knows who and “pushed through” the Verkhovna Rada, which fails to meet the requirements of the criminal procedure law. If the goal was to pass a new CCP without too much caring about quality, it is criminal negligence, to say the least, which may have grave consequences for an individual and society as a whole in the near future. Having the new CCP adopted by the Verkhovna Rada, its authors ruined the old system without building a new one.

This gives rise to another version, whereby the law drafters were taking well-considered and purposeful actions. They could not fail to understand that implementing this code will paralyze the entire law-enforcing and judicial system, which will inevitably entail a mass-scale discontent over the current government’s actions.

The impression is that somebody is eager to aim the people’s wrath at the current president and the parliamentary majority. The logic of this course of developments says that, in the long run, people will sweep away the authorities that are unable to establish order and stability in society, but it is so far difficult to say what price we will have to pay for this.

Taking all this into account, the president ought to think twice before affixing his signature to the draft new CCP and putting it into practice. It is not yet too late to draw conclusions and correct mistakes.

Oleh Bereziuk is chairman of the Ukrainian Juridical Society