Some changes in criminal justice during martial law
The Russia’s military aggression against Ukraine has certainly stopped the work of Ukraine’s judicial system, at least for a few days almost throughout Ukraine. However, as of the 69th day of the war, it should be noted that the administration of justice in Ukraine has largely been restored in one way or another, except for courts located in the temporarily occupied territory or suffered during military activities.
According to data of the State Judicial Administration of Ukraine as of May 2, 2022, 136 appeal and local courts do not administer justice. Most of these courts are located in the temporarily occupied territory. 51 courts are damaged or destroyed.
Other courts of general jurisdiction either operate under a special regime established on the basis of the degree of threat to the life and health of the court staff and visitors or administer justice on a regular basis. This has been mentioned both in detailed interviews with the Head of the Supreme Court Vsevolod Knyazev and the State Court Administration of Ukraine on the official website.
If the consideration of civil, economic and administrative cases is not urgent for now, the issue of criminal proceeding is more pressing than ever. At a minimum, in order to ensure the inevitability of criminal punishment, detention of persons who have committed criminal offences and solution of the issue of ensuring new and ongoing criminal proceeding.
At the same time, if the judicial hearing of criminal cases in court can be postponed, and the territorial jurisdiction of the case can be changed for further consideration, then, for example, the provision of judicial control in criminal proceeding is somewhat more difficult. The cases under consideration of the investigating judge are definitely urgent ones in connection with the clearly defined deadlines in the Criminal Procedure Code of Ukraine (the CPC of Ukraine).
In view of the imposition of martial law in Ukraine, the Verkhovna Rada has repeatedly adopted amendments to the CPC of Ukraine, namely introduced by the Law of Ukraine as of March 3, 2022, No. 2111-IX “On Amendments to the Criminal Procedure Code of Ukraine and the Law of Ukraine “On Pre-Trial detention” on additional regulation of law enforcement in martial law” and the Law of Ukraine as of March 15, 2022, No. 2137-IX “On Amendments to the Criminal Procedure Code of Ukraine and the Law of Ukraine “On Electronic Communications” to increase the effectiveness of pre-trial investigation “in hot pursuit” and counter cyber-attacks”.
However, the most “fundamental” changes regarding the procedure for criminal proceeding during martial law, in particular because of its simplification, entered into force on May 1, 2022. We are talking about the entry into force of the Law of Ukraine as of April 14, 2022, No. 2201-IX “On Amendments to the Criminal Procedure Code of Ukraine on improving the procedure for conducting criminal proceeding during martial law”.
Changes in the procedure for conducting criminal proceedings are aimed primarily at acceleration of the adoption of procedural decisions (primarily by prosecutors) to ensure pre-trial investigation, but taking into account the balance of human rights and freedoms.
At present, the procedure for conducting criminal proceeding during martial law is established in section IX-1 “SPECIAL REGIME OF PRE-TRIAL INVESTIGATION, JUDICIAL HEARING UNDER MARTIAL LAW” of the CPC of Ukraine and provides the following features:
- the pre-trial investigation can be initiated based on delivery of the resolution by the official of initial inquiry, investigator, prosecutor provided that there is no technical possibility to access the Unified Register of Pre-trial Investigations;
- a possibility of creating interdepartmental investigative groups is introduced;
- it is possible to record the conduct of investigative procedures or proceedings with the help of available technical means, with the further drawing up a report on investigative procedure within 72 hours after the end of the investigative procedure or the corresponding proceeding;
- in the absence of an objective possibility for the investigating judge to exercise his powers provided for by Articles 140, 163, 164, 170, 173, 186, 187, 189, 190, 206, 219, 232, 233, 234, 235, 245-248, 250 and 294 of the CPC of Ukraine, as well as the powers as to imposing the preventive measure in the form of 30 days of custody on persons who are suspected of having committed crimes under Articles 109-115, 121, 127, 146, 1461, 147, 152-1561, 185, 186, 187, 189-191, 201, 255-2552, 258-2585, 260-2631, 294, 348, 349, 365, 377-379, 402-444 of the Criminal Code of Ukraine ( the CC of Ukraine) and in exceptional cases also other grave offences or the special grave offences, if the delay in the choice of a preventive measure may lead to the loss of traces of a criminal violation or escape of a person suspected of committing such a crime, the relevant powers of the investigating judge are exercised by the head of the prosecutor’s office;
- it is possible to conduct a search or inspection of the dwelling (other personal property) without the involvement of witnesses. In this case, a continuous video recording of the investigative procedure is mandatory;
- term of detention of a person without the decision of the investigating judge, court decision or resolution of the head of the prosecutor’s office during martial law cannot exceed two hundred and sixteen hours from the moment of detention;
That is, it is possible to detain a person without a court decision or decision of the prosecutor’s office for almost 11 days. Whether such changes are appropriate remains an open question. Of course, martial law provides for restrictions on human rights and freedoms, in particular freedom of movement. However, 11 days of detention of a person is evidently excessive period of detention in the absence of further reasons for choosing a real preventive measure.
- testimony obtained during the interrogation of a witness/victim/suspect can be used as evidence in court provided that the course and results of such interrogation have been recorded by means of accessible video recording device. That is, it will be enough to make a recording by any mobile device;
- a possibility of remote participation of the defender in separate investigative procedures is provided;
- the official of initial inquiry, investigator, prosecutor assume responsibility for storage of the criminal proceeding materials in electronic form, pre-trial investigation of which is carried out under martial law;
- conditions and special procedure for the renewal of criminal proceeding materials under martial law are defined (Article 615-1 of the CPC of Ukraine);
- it is possible to cancel preventive measure for performance of military service by conscription during mobilization, for a special period or to change the preventive measure in other circumstances (active hostilities in a specific territory). The preventive measure applied in criminal proceedings regarding crimes against the basics of national security of Ukraine and crimes provided by Articles 115, 146-147, 152-156, 186, 187, 189, 255, 255-1, 257, 258-262, 305-321, 330, 335-337, 401-414, 426-433, 436, 437-442 of the Criminal Code of Ukraine cannot be canceled and/or changed.
It should be noted that before March 8, 2022, provisions of Section IX-1 of the CPC of Ukraine were applied not only during martial law, but also during emergency state. So, it is obvious that the introduced changes are not the last.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.
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