It's no secret that the full-scale invasion of the Russian Federation into Ukraine and the introduction of martial law had a significant impact on all areas of our lives. The criminal justice system is no exception. During the martial law, it faced new challenges, so the legislator made appropriate changes to the Criminal Procedure Code of Ukraine.
In 2014, the Criminal Procedure Code of Ukraine was supplemented by Chapter IX-1. According to the Law dated August 12, 2014 No. 1631-VII "On Amendments to the Criminal Procedure Code of Ukraine Regarding the Special Regime of Pretrial Investigation in Conditions of Military, State of Emergency, or in the Area of an Anti-Terrorist Operation", it was called "Special Regime of Pretrial Investigation of Military, state of emergency or in the area of an anti-terrorist operation" and consisted of one article. 615 of the Criminal Procedure Code of Ukraine, which stipulated that in areas where a state of war or emergency or an anti-terrorist operation is in force, the powers of the investigating judge, determined by the Criminal Procedure Code of Ukraine, as well as regarding the selection of a preventive measure for a period of up to 30 days, are transferred to the prosecutor. However, this applied to criminal proceedings only in relation to an exclusive list of crimes.
Subsequently, the name of this section was changed several times. Thus, the Law of Ukraine dated 04/27/2021 No. 1422-IX "On Amendments to the Criminal Procedure Code of Ukraine regarding the improvement of certain provisions in connection with the implementation of a special pre-trial investigation" its name was supplemented: "Special regime of pre-trial investigation of military, emergency of the state or in the area of conducting an anti-terrorist operation or measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation in the Donetsk and Luhansk regions." That's what it was called at the time of February 24.
After the start of the war, the name of the section was changed several more times, and it itself was significantly supplemented. In particular, according to the Law of Ukraine dated 15.03.2022 No. 2125-IX "On Amendments to the Criminal Procedure Code of Ukraine regarding the procedure for canceling a preventive measure for military service under conscription during mobilization, for a special period or its change for other reasons" the name began to sound like this: "Special regime of pre-trial investigation, trial in conditions of war, state of emergency or in the area of anti-terrorist operation or measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation and/or other states against Ukraine". and the text was supplemented by Art. 616 of the CPC of Ukraine.
And the final and most significant changes took place with the adoption of the Law of Ukraine dated 04/14/2022 No. 2201-IX "On Amendments to the Criminal Procedure Code of Ukraine on Improving the Procedure for Conducting Criminal Proceedings in Martial Law", which fixed the final title of the section "Special regime of pre-trial investigation, trial under martial law conditions". In addition, Art. was significantly amended. 615 and added Art. 615-1 of the CCP.
These changes will be discussed in detail below.
Beginning of pre-trial investigation
According to the new edition, paragraph 1, part 1 of Art. 615 of the Criminal Procedure Code of Ukraine stipulates that during martial law and in the absence of technical access to the Unified Register of Pretrial Investigations (hereinafter referred to as the Unified Register of Pretrial Investigations), the investigator, inquirer, or prosecutor shall issue a corresponding resolution. It must contain the information specified in Part 5 of Art. 214 of the CPC of Ukraine, that is, those that are usually included in the EDPR. Before such a resolution is adopted, an inspection of the scene may be conducted, after which the resolution is drawn up immediately. As we can see, this norm correlates with the provisions of part 1, 3 of Art. 214 of the CCP of Ukraine. Information must be entered into the EDPR as soon as possible.
Recording the results of the pre-trial investigation
The results of the investigative (search) actions (hereinafter referred to as the SRD ) must be recorded with the help of procedural documents or technical means (hereinafter referred to as the TOR ). The exception is the impossibility of fixing using TK for technical reasons. If it is not possible to draw up procedural documents about the progress and results of the SRD or other procedural actions, the recording is carried out by available technical means. In this case, the protocol is drawn up no later than 72 hours from the moment of their completion.
Peculiarities of conducting a search or inspection of housing
According to clause 1 part 1 of Art. 615 of the Criminal Procedure Code of Ukraine, a search or inspection of a dwelling may be carried out without the involvement of witnesses in case of potential danger to their life or health. However, in this case, continuous video recording should be carried out using available technical means.
Impossibility of exercising powers by the investigating judge and choosing a preventive measure
In the case of an objective lack of possibility for the investigating judge to exercise his powers and choose a preventive measure for a period of up to 30 days, such powers must be exercised by the relevant head of the prosecutor's office at the request of the investigator or prosecutor. At the same time, according to part 2 of Art. 615 of the Criminal Procedure Code, the term of validity of the resolution of the investigating judge or the resolution of the head of the prosecutor's office may be extended up to one month by the head of the relevant prosecutor's office at the request of the investigator or prosecutor. In addition, the term can be extended several times within the term of the pre-trial investigation.
In this case, there is a danger of bias and abuse of authority by the relevant head of the prosecutor's office. Perhaps it was worth introducing a procedure for further confirmation by an investigating judge of the legality of such a decision at the first opportunity or after the termination or cancellation of martial law?
It is worth noting that this can be applied only in relation to an exclusive list of crimes or in exceptional circumstances in relation to serious or particularly serious crimes, if the delay in choosing a preventive measure can lead to the loss of traces of a criminal offense or the escape of a suspect.
Detention of a person and the period of his detention without a decision of the investigating judge
In addition to detaining a person in accordance with Art. 208 of the Criminal Procedure Code of Ukraine (a person was caught while committing or attempting to commit a crime, a person has just committed a crime, there is a direct danger of the escape of a person suspected of committing a criminal offense), during martial law, it is allowed to carry out such detention in the event of grounds indicating a potential escape suspect. In such a case, the detention is carried out by an authorized official without a decision of the investigating judge or a decision of the head of the prosecutor's office.
At the same time, the term of detention of such a person has been increased to 260 hours from the moment of detention. No later than this period, the suspect must be brought to the court or the head of the prosecutor's office to decide on the issue of selecting a preventive measure for him or released.
That is, the detention period is a little less than 11 days, which is quite a lot for a preventive measure. The question of the expediency of such a term arises, which currently remains open. Personally, I believe that such a term is disproportionate even under martial law.
According to Clause 5, Part 1, Art. 615 of the Criminal Procedure Code of Ukraine, in the event that it is not technically possible to perform certain procedural actions within the time limits stipulated by the Criminal Procedure Code of Ukraine, they must be performed immediately at the earliest opportunity, but no later than 15 days after the termination or cancellation of martial law. This applies to the following procedural actions:
- consideration of motions during the pre-trial investigation (Article 220);
- getting acquainted with the materials of the pre-trial investigation before its completion (Article 221);
- submission and consideration of a complaint against the decision, actions or inaction of an investigator, inquirer or prosecutor, its return or refusal to open proceedings (Articles 304 and 306);
- appeal of non-compliance with reasonable terms (Article 308);
- pronouncement of a court decision (Article 376);
- filing an appeal (Article 395);
- filing a cassation appeal (Article 426);
- use of testimony obtained during interrogation.
According to Part 11 of Art. 615 of the Code of Criminal Procedure, statements obtained during the interrogation of the victim, witness or suspect may be used as evidence in court. However, only if its progress and results are captured by available means of video recording, i.e. even a mobile phone may be sufficient. At the same time, a defense attorney must be present during the questioning of the suspect.
As you can see, the legislator slightly deviated from the principle of immediacy of the research of evidence, enshrined in Art. 23 of the CCP. But taking into account the conditions of martial law, such a provision can be called the "golden mean" in the context of compliance with the basic principles of criminal proceedings.
Participation of the defender
In the case of the impossibility of direct participation of the defender during a separate procedural action in accordance with Art. 53 of the Code of Criminal Procedure, the investigator or inquirer must ensure its conduct through the remote participation of the defender by means of audio and video communication.
Completion of the pre-trial investigation
In case of impossibility of further conduct, completion of the pre-trial investigation and appeal to the court with an indictment, a request for the application of coercive measures of a medical or educational nature, or for exemption from criminal liability, the term of the pre-trial investigation is suspended on the basis of a reasoned resolution of the prosecutor with an explanation of the circumstances. At the same time, the terms are renewed if such circumstances have ceased to exist. In addition, before issuing the relevant resolution, the prosecutor must decide on the issue of extending the term of detention of a person in custody.
Recovery of lost materials
It is also worth paying attention to the fact that the current version of the Criminal Procedure Code of Ukraine provides for the procedure for restoring lost materials of criminal proceedings under martial law (Article 615-1), as well as the possibility of canceling a preventive measure for military service under conscription during mobilization, for a special period ( Article 616).
Author: Nirmal Vishevnyk , "Everlegal" lawyer