Draft law No. 10387: analysis of major changes to the criminal procedure code from a partner

LIGA.Blogs of September 2nd , 2019

Taras Bezpalyy, attorney-at-law, associated partner at Legal Alliance Company

In response to the lively discussion and ambiguous opinions in the professional community, Taras Bezpalyy has analyzed from the perspective of defense draft law No. 10387 by MP Anton V. Yatsenko and proposes to divide the proposed changes into positive and negative ones.

Positive changes

1. The term of “the scene of the accident” was added.
2. The term of "notification of suspicion" was replaced by "serving suspicion on a person" (now it is easier for courts and the defense party to determine whether a person has the status of a suspect, how the suspicion was served, and whether it was done by the authorized person).
3. The person to whom criminal proceedings ensuring measures have been applied is determined as a participant in criminal proceedings.
4. It has been determined that the prosecutor drafts a suspicion and that another person may be instructed to serve it.
5. All things and documents seized during a search are considered temporary seized property. That means, the investigator or prosecutor within 48 hours of seizure of the property during the search will be obliged to apply to the investigating judge with a request for seizure of the property.
6. The list of persons entitled to petition the investigator in accordance with Article 220 of the Criminal Procedure Code of Ukraine was expanded.
7. The defence has been entitled to appeal to the investigating judge the refusal to provide pre-trial investigation materials.
8. It is forbidden to reveal information at the pre-trial stage that can disclose the identity of the suspect, victim, or witness.
9. The victim is interrogated immediately after the submission of the notice of an offence or the declaration of victim recognition.
10. The search and inspection of the dwelling or other property of an advocate is carried out in accordance with the Law of Ukraine “On the Bar and Advocacy” (this provision has been enshrined in the relevant law since 2012, but it has not been included in the Criminal Procedure Code, with this leading to abuse by investigators).
11. The search warrant must include individual or generic characteristics of things, documents, links to the relationship between things and the criminal offense (previously, only the list of things was mentioned).
12. Authorization to seize computer equipment and cell phones during searches can only be granted provided that their seizure is required for expert examination, they are obtained as a result of a crime commitment, and are a means or tool of committing a crime.
13. A separate article on search of a person in – Article 236-1 of the Criminal Procedure Code of Ukraine, which clearly specifies the procedure for conducting such a search, has been added.
14. There is no need to appeal to the investigating judge with a request for examination - the examination is conducted at the request of a party or on the instructions of the investigating judge, court. The defence also has the right to apply to the investigator for an expert examination, in case of refusal the defence has the right to apply to the investigating judge for examination.
15. Article 290 of the Criminal Procedure Code of Ukraine has been expanded by the provision that the defence has the right to petition to supplement the pre-trial investigation.

Negative changes

1. The investigator, in agreement with the prosecutor, has the right to petition the investigating judge for the appointment of audits and inspections (it is not clear what the probative value audits and inspections will have in comparison with evidence and expertise).
2. A person becomes a suspect not from the moment of the notification of the suspicion (this definition will no longer exist), but from the moment of suspicion development.
3. Audits and inspections are specified in documents that may contain evidence (may be requested by the parties in accordance with the Criminal Procedure Code, Article 93).
4. The suspicion may be served on behalf of the investigator or prosecutor by another person, as well as in the manner provided for the service of notices.
5. The right of the defence to appeal an investigator's decision is limited to one appeal.
6. The defence is granted the right to appeal against:

• seizure of property, rejection of it, complete or partial cancellation of seizure of property, or release of the seizure;
• return of temporarily seized items and documents;
• taking a precautionary measure such as personal obligation or refusal to apply it.

7. Disputes on who has to serve a suspicion to special entities will be over. Article 481 of the Criminal Procedure Code of Ukraine will determine only the duty of suspicion development by the authorized persons to special entities. The service of suspicion, as noted earlier, can be made upon instruction.