The signing of the Law №6232 by the President of Ukraine will lead to collapse of the National Anti-Corruption Bureau of Ukraine (NABU) work as well as the work of other law enforcement agencies. It will also paralyze the judicial system of Ukraine.
Besides that, we are deeply concerned with the fact that on November 20, 2017, the term for the Prosecutor’s office to have the right to conduct pre-trial investigation in criminal proceedings, which fall under the NABU’s jurisdiction but were registered before December 2015 (about 3.5 thousand proceedings), would be over. After the date, all the above mentioned proceedings would be transferred to the National Bureau and this would paralyze the NABU’s work due to the fact that the number of the NABU’s Detectives is limited to 200 people only.
On October 3, 2017, the Verkhovna Rada of Ukraine adopted the Law "On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Legal Proceedings of Ukraine and other legislative acts" (№ 6232). The Head of the Verkhovna Rada signed the Draft Law almost a month after adopting - on October 30, 2017. It should be mentioned that the final version of the Draft Law, which was sent to the President of Ukraine for signing, hasn’t been made public yet.
Among other things, the Draft Law proposes amendments to Article 219 of the Criminal Procedure Code of Ukraine (CPC). It provides a limiting of the terms of pre-trial investigation from the moment of registering a criminal proceeding in the Unified Register of Pre-trial Investigations (URPI) (even if the suspect is not being established). The investigator will be obliged to terminate the criminal proceeding in case of completion of the established terms, regardless the fact whether the crime was revealed.
It should be noted that there is no such norm in any civilized country. The European and American law enforcement agencies’ practice knows many cases when the investigation of gravest and grave offences lasted for years. It should also be taken into account that in most Western countries the pre-trial investigation process is much simpler as of the legal specifics than in Ukraine.
We emphasized that the proposed amendments contradict not only the international law, but also national legislation. Due to the fact that the abovementioned amendments do not provide for the possibility of reopening a pre-trial investigation, theywill lead to violations of the legal rights of applicants, victims, civil plaintiffs and the interests of the State.. In such circumstances, it will be impossible to prosecute a person who had committed a crime after the expiration of the pre-trial investigation term.
In addition, the Draft Law proposes significant amendments to the CPC, which provide for obtaining permits for the application of measures to ensure criminal proceedings, namely the possibility of obtaining them only within the territorial jurisdiction of the court where the law enforcement agency registered as a legal entity.
The changes will create an excessive burden on judicial institutions at the place of registration of the legal entity. After all, the investigators of the territorial departments of National Police, for example, which don’t have authority of independent legal entities, will have to apply to the court, in some cases located more than 100 km from the department. Another amendment is a mandatory obligation to bring the investigating judge a refuse, written by case participants, to voluntarily provide the searched items, objects or equipment that are to be seized. Only after the judge receives such written refusal, the search activities could be conducted. Such innovations would lead to figurants destroying the evidence before the actual search and would demolish the role of search as an investigative action.
In addition, the amendments to the CPC, proposed by the Law № 6232, establish the requirement of investigating judge having the sole right to appoint any examination procedure as long as the expert or expert institution which would be conducting this examination.
Also, an investigating judge would have the right to dismiss any parts of examination or to disregard the expert’s proposition to conduct some specific examination. It should be noted that in general the provision of these authorities to investigating judges goes beyond the competence of the court.
Amendments to Articles 303, 307 of the Criminal Procedure Code of Ukraine proposed by the Law № 6232 re-establish the rules of the CPC (adopted in 1960) on the possibility of appealing to investigating judge against a notice of suspicion. At the same time, the CPC of Ukraine has already provided a mechanism for the review of the justification of suspicion at the stage of pre-trial investigation, in particular, at the stage of choosing a preventive measure.
The NABU calls on the President of Ukraine to veto the current version of Law №6232. Amendments to the CPC should be updated after appropriate consultations with all participants of the criminal process. The National Bureau also appeales to the Head of the Committee on Legislative Support of Law Enforcement of the Verkhovna Rada of Ukraine to initiate the issue of amending the Transitional Provisions of the CPC of Ukraine – namely on the exclusion of restrictions regarding two years investigation term determined for the Prosecutor's Offices to investigate criminal proceedings, which fall under the NABU jurisdiction, but were registered before December 15. It will provide the Prosecutors with possibility to complete their investigations initiated before December 2015, and the National Bureau could continue to work effectively.