Peculiarities of criminal proceedings during martial law

Everyone knows that one of the main functions of the Supreme Court, in addition to hearing cases in cassation, is to ensure the unity of practice. And in the conditions in which we found ourselves, this issue has become extremely important, especially since we have a whole block of changes to the legislation.

According to Art. 124 of the Constitution of Ukraine, justice in Ukraine is administered exclusively by courts, delegation of court functions is not allowed. We have a similar provision in the Law of Ukraine "On the Judicial System and the Status of Judges", but this position is even more detailed in Art. 26 of the Law "On the Legal Regime of Martial Law", which stipulates that justice in the territory where martial law has been imposed is carried out only by courts. Courts established in accordance with the Constitution of Ukraine operate on the territory of Ukraine. Abbreviation or acceleration of any form of judicial proceedings is prohibited, and in case of impossibility of administration of justice by courts operating in the territory where martial law has been imposed, the laws of Ukraine may change the territorial jurisdiction of court cases considered in these courts, or in accordance with the procedure established by law the location of the courts has been changed.

And it is equally important that the creation of extraordinary and special courts is not allowed.

It should be noted that the Verkhovna Rada adopted a Resolution indicating that at certain times we cannot ensure compliance with the European Convention on Human Rights, but this situation has arisen due to the fact that we cannot currently control our entire territory.

Thus, against the background of the above, from the first days of the war, the question arose: "And how to ensure the fulfillment of constitutional functions, the requirements of the law, despite the fact that all courts had to perform their work, but in completely different conditions."

Therefore, in this material, we publish the answers of Stanislav Kravchenko, the Chairman of the Criminal Court of Cassation as part of the Supreme Court, to a number of issues of concern to the legal community, related to the functioning of the judicial system and the latest changes to the legislation.

A video recording of the meeting is available at the link .

1. Evaluate the changes made to the PDA. What case law already exists? What problems do courts, judges or law enforcement agencies face?

Changes to the Code of Criminal Procedure, in particular to Art. 615, are positive, despite some problems. The changes gave us the legal basis that allowed us to organize the work of the courts under martial law.

We have an amended section of the Criminal Procedure Code, which defines the specifics of pre-trial investigation and trial under martial law. The legislator made some changes that will exist only for a certain period.

We have actually returned to the 1960 Code, when the prosecutor or the investigator makes a decision, which we actually determine the beginning of a pre-trial investigation, and this is the main condition for conducting further investigative actions (in the event that the registry does not work).

If there is no objective possibility for the investigating judge to exercise his powers, this is the main condition for these powers to be transferred to the prosecutor.

One of the important and difficult issues was the qualification of the actions of military personnel of the aggressor country, in cases where these persons commit crimes provided for by the Criminal Code. In case of open aggression, we declared from the very beginning that this is a war, and therefore the military personnel of the aggressor country are prisoners of war, therefore the corresponding status is regulated by the Geneva Convention.

However, it is obvious that if a military pilot drops three half-ton bombs on the peaceful quarters of the city of Chernigov, then it is impossible to call him simply a prisoner of war. There is a question of bringing him to justice under national legislation. Now we see a sufficiently large number of filed proceedings and, even, we already have the first verdicts in the first instance.

Also important is the question when it is impossible to ensure a full-fledged review, the selection of a full-fledged preventive measure. I would like to draw attention to the novella, relative to the previous edition of Art. 615, it was not only expanded, but also the approach was changed by the legislator. Previously, only a group of crimes was defined for which powers were transferred to prosecutors, and here for the first time the legislator noted "in exceptional cases, other serious and especially serious crimes."

That is, the powers of investigating judges were transferred to prosecutors (but only if the investigating judge cannot act). There are already enough cases in this regard. It should be understood that in regions where active hostilities were not carried out, it will be very easy to determine whether the court acted or not. But in the regions where active hostilities took place, there will be problems for a long time in the context of checking and assessing whether the prosecutor had the appropriate powers.

So we have to proceed from the fact that everyone acted in the manner determined by the law, but certainly, if the question is raised about the verification of the circumstances, then the courts will verify them separately.

2. Features of application of Part 9 of Art. 615.

We have developed an approach according to Part 9 of Art. 615 and we determine that it is precisely during the period of martial law, where there is an investigation, there is also a court, otherwise any meaning of such changes is lost, because it is assumed that the bodies of pre-trial investigation still work, including those transferred from uncontrolled territories .

The issue of non-controlled territories should be treated with caution. We know the position of the legislator, who determined that it is the National Security and Defense Council, as in the past with regard to the territories of Donetsk and Luhansk regions, that determines which territory is considered uncontrolled. Hence the legal consequences, namely, with regard to summons, special proceedings, etc. But while the National Security and Defense Council is in no hurry to define such territories, we are guided by the following considerations: where our military is located, law enforcement agencies cannot work there. In such a case, if the body has been transferred, we assume that if the law enforcement body was already working, then there must be a court there that can consider this or that proceeding.

Now according to Part 2, Art. 34, such a petition can be filed and sent to the court, using the approach "location of the accused", "exceptional circumstances of the witnesses", etc. As part of this procedure, we can actually check whether the court is working, and from there determine the jurisdiction of that court, which was initially determined by law to have territorial jurisdiction. This approach is already widely used in the de-occupied territories.

3. What does "where there is an investigation, there is a court" mean? Is it the place where the pretrial investigation body is registered or where it is actually located, since there are cases when these places do not coincide?

This dilemma has existed for a long time. For a long time, the Supreme Court held the position that the place is determined by the legal address of the pretrial investigation body. However, when the reform of the National Police took place, it was decided that the district police departments are not legal entities, but only the central apparatus of the regional departments of the Ministry of Internal Affairs. According to this logic, one court, where the regional administration is located, had to consider the entire region, so we changed our position and began to follow in accordance with the Code of Criminal Procedure, namely: the location of the investigative unit (we interpreted this unit as both a department, and a branch, and management). Therefore, where this unit was located, the courts considered proceedings and carried out proceedings. However, when the reform of the administrative-territorial system took place, the Ministry of Internal Affairs decided not to create investigative units in 76 cases, citing the small percentage of crimes there. Therefore, we emphasized that if it is a misdemeanor, then the court on whose territory the misdemeanor was committed will consider it, and if a crime has been committed, then the court where the pre-trial investigation body is located will consider it.

4. Challenging actions/inactions of the prosecutor and the investigator?

The court is not clearly defined in the section of the Criminal Procedure Code that regulates the appeal of actions/inactions. It was always obvious to me that where there is a pre-trial investigation body, there is also a court. This is the position of all judges.

5. Would the restoration of the military justice system and military courts help relieve the courts or make the process more efficient?

Before the war, I was categorically against it for a number of reasons, but after meeting with the military leadership of our country, in the current conditions, I support this position, since it will be easier for military courts to consider the proceedings. After all, this is a smaller number of cases, these are judges who specialize in a certain category of cases, this is the territory of military units, where there is a passage, where there are people with weapons. But in this case, there must be a political solution, depending on the model we are building. But at the same time, this decision requires significant financial and human resources and time for preparation, therefore, it seems to me that this issue is not at the right time. Looking ahead, this question will most likely arise in the future.

6. Court practice regarding the possibility of remote participation in court sessions of defense counsel, including using the EasySon system. But is it possible to hold a meeting when the judge is not in the premises of any court, that is, joins the conference as a participant, if the parties do not object to such proceedings?

Regarding the judges, I think this is too much. This is not only a declarative general aspect, but also a question of direct examination of evidence, questioning, question of a conference room, possibility of influence, question of protection of information, question of possibility of intervention.

Regarding the participants in the process, the situation is different here. Courts use this possibility now and have used it before, although there are still some technical issues. For example, how to identify a person.

7. How to continue the preventive measure in the absence of the accused, if it has already been extended in accordance with the requirements of Art. 615? Is it possible to re-apply this norm even in the absence of the accused?

We have 3 aspects of who and when can extend the preventive measure:

  1. The prosecutor is at the stage of investigation. The priority was that he could apply a preventive measure for 30 days and extend it for 30 days, that is, 60 in total. Then amendments were made regarding the possibility of repeatedly extending the term of prosecution until the end.
  2. Court in accordance with the requirements of Art. 615. In this case, it is not possible to renew again, if it has already been renewed.
  3. And where the court and the prosecutor cannot work – for the first time in history we have a forced measure of the so-called automatic extension. Where the court is not working, there is no need for any additional actions or decisions, according to the law, there is an automatic extension. How is this provision implemented? First of all, it is necessary to refer to the website of the Supreme Court, which contains a list of courts whose work has been suspended and whose functions have been transferred to other courts.

8. On May 1, 2022, the Law on Amendments to the Criminal Procedure Code on Improving the Procedure for Conducting Criminal Proceedings Under Martial Law entered into force. Thus, in accordance with paragraph 2 of clause 6 of part 1 of Article 615, the term of detention of a person without the approval of the investigating judge or the decision of the head of the prosecutor's office during martial law may not exceed 9 days. Does this not contradict the Constitution, which defines the possibility of detention for only 3 days?

It must be assumed that if the legislative body has assumed responsibility, then at least until the Constitutional Court has recognized such a norm as unconstitutional, it must be carried out. This is in the legal plane.

9. What is the procedure for consideration of the prosecutor’s request to extend the term of the preventive measure in the form of detention in a case where the materials of the criminal proceedings have not been transferred to the court, which has determined the jurisdiction, in relation to the accused, who is detained in an institution located in the territory of the Kherson region and with does she have no internet connection?

If the criminal proceedings are at the investigation stage and fall under the list of articles defined by the legislator, or as exceptionally serious or particularly serious, there is no order. The legislator determined that the functions of the investigating judge are assumed by the head prosecutor of the local prosecutor's office. Neither the procedure nor the participants in the process are provided here. There were questions as to whether the prosecutor's decision to extend the term of the preventive measure is appealed, and there was even such an opinion that they are appealed immediately to the appellate court, but no, because the function of the appellate court is to review the decisions of the courts of first instance. That is, such a decision of the prosecutor is not appealed to the court, except after completion through the act/inaction section.

If the criminal proceedings are already in court, the problem that we talked about before arises: is it possible to hold a meeting without a person. Again, the judge makes a decision based on the specific situation.

10. Will it be legal to extend the period of pre-trial investigation, if this proceeding is clearly not subject to this body of pre-trial investigation.

It is important to understand the so-called primary investigative actions aimed at stopping the crime. We have always assumed that at least some initial actions should be taken based on a person's statement, so that it does not happen that the police officer on duty reads the statement and says "it's not for us, go to the SBI."

As for the essence of the issue itself, it should be noted that the powers of the prosecutor have been greatly increased, so one must be very careful when determining that the proceedings are clearly not under investigation.

11. How to continue the trial of the case if the accused is in the occupied territory and there is no possibility to attend the court session?

Any. There is no such possibility, except for Art. Article 336, which we discussed earlier.

I would also like to draw attention to the changes that were also introduced by the legislator during this period regarding the responsibility of military personnel. It is rather interestingly stated "who is called to the ranks of the Armed Forces of Ukraine". The question immediately arose: what about military servicemen under contract? Here we gave an unequivocal position: it must be stopped, regardless of whether it is a draft or a contract. As for misdemeanors, the same is true, because the person cannot come to the court session and exercise his right, so that he is not declared wanted, the proceedings in the case are stopped.

12. Questions regarding part 8 of Art. 615 of the Criminal Procedure Code on failure to take into account the time from the date of introduction of martial law to the date of its cancellation in the period of pre-trial investigation, in those proceedings where no person has been notified of the suspicion. Is it necessary to additionally obtain a court decision?

Since this issue is directly defined in the CPC, it is necessary to be guided by this norm. Therefore, a separate court decision is not required.

13. If the accused person is abroad as a person who has temporary protection there, which actions are more appropriate: search or postponement until the end of martial law?

In order to conduct a search, we need to choose a preventive measure. In order to choose a preventive measure, the presence of certain factors is necessary, and one of the main factors is defined as follows: if a person without good reason does not appear when called. Will someone now take responsibility for proving such a submission? After all, the person officially crossed the state border of Ukraine, fleeing from the war. In this situation, you should wait a month or two and see how the situation will change.

There is one more example that concerns actions that should be taken, but already in relation to another category of persons. If the person expressed a desire to defend the Motherland and the question of changing the preventive measure arises. The legislator settled this issue and determined that this issue is resolved through the prosecutor, who is obliged to monitor in the future whether the person will really defend the Motherland.

14. Is it possible to stop the proceedings if the accused entered into a contract as a volunteer? On June 12, the Law of Ukraine entered into force, which allows the use of such a formation to perform combat tasks on the front line.

As I have already said, we have already expanded the issue of the contract, although the Law defines "called up to the ranks of the Armed Forces of Ukraine." If the contract with the Armed Forces of Ukraine is the reason for stopping the proceedings.

Regarding territorial defense (that is, territorial communities), there are no unambiguous grounds for stopping the proceedings, the Law does not establish such, because there is no status of a military serviceman. However, if information is provided that a person protects our Motherland, then, I think, we will wait.

15. Can the court postpone the court session at the request of the defense attorney about the impossibility to attend the court session due to the fact that the defense attorney is called to the ranks of the Armed Forces?

Here the question is rather complicated. There is a rule that defines respectable/disrespectful reasons for absenteeism. It is clear that if the defender protects our Motherland, this is a valid reason. Obviously, everyone has their own reason, but it cannot reflect negatively on the client. Each case must be analyzed separately. Better, perhaps, to protect other colleagues. It is necessary to raise this issue so that there is no abuse of rights. It is possible that changes to the legislation are needed, which will allow to more widely solve the issue of replacing the defense counsel, whether for a separate investigative activity or for a separate day in the court session.

16. If we are talking about changes to the Code of Civil Procedure, in addition to changes related to Art. 615, are there any other provisions regarding the recovery of criminal proceedings?

Since 2014, this problem has existed quite acutely. The procedure for restoring materials is quite clearly prescribed: what should be in the submission, what should be considered, what should be provided. But there is no great optimism about the recovery, based on the experience since 2014. Criminal proceedings have the specificity that the materials that are evidence are often so authentic that it is extremely difficult to make any copies. So let's see how this process will move.

17. How to compensate the damage caused to citizens by military actions?

So far, there is no common vision of this issue: should each person independently make claims and turn to certain institutions, or on the contrary, the state of Ukraine compensates citizens for certain amounts, then issues an invoice and shows the amount spent, which should be compensated. This is very important in the aspect of creating a military tribunal.

My position is that this issue should be resolved at the state level and, perhaps, even under such a model that we first determine the amount of damages, file claims, and then use these funds to compensate damages to individuals and legal entities.

18. What is your opinion about military tribunals for the military of the Russian Federation?

At the initiative of the President of Ukraine, a meeting was held, where we proposed to those countries that help us to create a tribunal. But it is clear that this, as the President said, is a trial for 20-30 people who launched this aggressive war against us. Now the ball is in the court of other countries, and if it is decided that such a tribunal will be created, then obviously we will see such processes. If an international tribunal is not created, we see it as our duty to perform this function.

19. We would like to hear your opinion on the issue of identification of the defender and the client (lawyer and his client), since there are already cases when it turns into a rather aggressive form on the part of third parties, negative scenarios develop.

These are difficult times, but no matter how difficult it is for us, we must not lower ourselves to the standards of the aggressor country. The pain of loss and human emotions are understandable, but we speak on a professional basis. And regarding the issue of protection, it is obvious that if it is specified in the European Convention on Human Rights, if it is specified in the Constitution of Ukraine, procedural codes, it must be understood that the lawyer bears a very heavy burden, because he is a member of our society. Therefore, I take this opportunity to call on all of us to treat our lawyers with understanding and great respect, who carry such a heavy burden and fulfill their duties to provide protection. The issue of protection has always been and will be painful.

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