Changes on simplification of pre-trial investigation of criminal offences

On April 19^th, 2019 President of Ukraine signed Law of Ukraine “On Making Amendments to Some Legislative Acts of Ukraine on Simplification of Pre-Trial Investigation of Some Criminal Offences’ Categories” No. 2617-VIII as of November 22^nd, 2018.

The explanatory note to the Law specifies that currently investigation of misdemeanours constitutes almost 50% of all investigations. It leads to delays in investigation of felonies and also unreasonable red tape in investigation of misdemeanours.

Considering the above, it was proposed to introduce the simplified pre-trial investigation in the form of inquiry for all misdemeanours, which will ensure fast investigation of misdemeanours and also enable investigation agencies to investigate felonies, decrease workload for pre-trial investigation authorities.

The approved changes become effective on January 1^st, 2020, except for Section II (2) of this Law.

Among them there are the following:

Criminal Code of Ukraine

1. According to the adopted changes, criminal wrongful acts are divided into criminal offences and crimes (Article 12 of the Criminal Code of Ukraine).

Criminal offence is an act listed in the Criminal Code (action of omission), commitment of which is punishable by fine in the amount of no more than three thousand non-taxable incomes or another penalty which is not imprisonment.

Crimes are divided into misdemeanours, severe crimes and felonies.

2. Preparation to a criminal offence does not entail criminal responsibility (Article 14 of the Criminal Code of Ukraine).

3. Under Article 21 of the Criminal Code of Ukraine, persons who committed criminal offences under the influence of alcohol, drugs or other intoxicants, or under influence of medicines which decrease attention and speed of reaction are subject to criminal responsibility.

4. Reasons for and conditions of relieving a person who committed criminal offence from criminal responsibility were prescribed as well (Articles 45-49 of the Criminal Code of Ukraine).

5. A person who committed a criminal offence or misdemeanour, except for corruption related criminal offences, can be relieved from punishment by a court sentence (Article 74 of the Criminal Code of Ukraine).

6. Early release from serving a sentence for a criminal offence (Article 81 of the Criminal Code of Ukraine) and substitution of the unserved portion of sentence with more lenient one (Article 82 of the Criminal Code of Ukraine) are prescribed as well.

7. Persons convicted for a criminal offence after serving sentence are considered as not having criminal record (Article 89 of the Criminal Code).

8. The Criminal Code prescribes release from criminal responsibility and application of education measures to a legal minor who committed a criminal offence for the first time (Articles 97 and 105 of the Criminal Code of Ukraine) and release from criminal responsibility and punishment due to expiration of statute of limitation (Article 106 of the Criminal Code of Ukraine).

9. The following popular crimes are proposed to be considered criminal offences:

• Theft (Article 185(1) of the Criminal Code of Ukraine)
• Fraud (Article 190(1) of the Criminal Code of Ukraine)
• Illegal hunting (Article 248(1) of the Criminal Code of Ukraine)
• Illegal extraction of fish, animals or other water resources (Article 249(1) of the Criminal Code of Ukraine)
• Violation of labour legislation (Article 271(1) of the Criminal Code of Ukraine)
• Violation of safety rules at dangerous works (Article 272(1) of the Criminal Code of Ukraine)
• Violations of flight rules (Article 281(1) of the Criminal Code of Ukraine) and violations of air space use rules (Article 282(1) of the Criminal Code of Ukraine)
• Group violation of public order (Article 293 of the Criminal Code of Ukraine)
• Bulling (Article 296 of the Criminal Code of Ukraine)
• Cruel treatment of animals (Article 299 of the Criminal Code of Ukraine)
• Creation or maintenance of debauch places and pimping (Article 302(1) of the Criminal Code of Ukraine).
• Illegal production, manufacture, purchase, storage, transportation or sending of narcotic drugs, psychotropic substances or their analogues without the purpose of sale (Article 309(1) of the Criminal Code of Ukraine)
• Resistance to an official, law enforcement agent, state enforcement agent, private enforcement agent, member of a public unit for protection of public order and state border or a military officer, authorized person of the Deposit Guarantee Fund (Article 342(1) of the Criminal Code of Ukraine).

10. Article 286-1 has been added to the Criminal Code and it contains a sanction for driving under influence of alcohol, drugs or other intoxicants, or under influence of medicines which decrease attention and speed of reaction, and letting a person who is under such intoxication or under influence of such medicines drive, which is fine in the amount from one to two thousand of non-taxable minimum incomes and deprivation of driving license for up to three years.

Criminal Procedure Code

1. An authorized inquiry officer – official of inquiry unit of the National Police, security authority, tax supervision authority, State Investigation Bureau, in case specified by this Code authorized person of another unit of the mentioned authorities which are empowered as provided in this Code, is authorized to carry pre-trial investigation of criminal offences. (Articles 3 and 401 of the Criminal Procedure Code of Ukraine).

2. According to Article 219 of the Criminal Procedure Code of Ukraine, term of pre-trial investigation from the moment of entering information on the criminal offence to the Unified Register of Pre-Trial Investigations till the day of notice of suspicion is as follows:

1) 12 months–in criminal proceedings on a misdemeanour;

2) 18 months–in criminal proceedings on a felony;

From the day of notice of suspicion, pre-trial investigation must be ended:

• Within 72 hours – in case of notice of suspicion of criminal offence or detention of a person in the manner prescribed by Article 298-2(4) of this Code;
• Within 20 days – in case of notice of suspicion of a criminal offence if the suspected does not recognize guilt, or it is necessary to carry additional investigatory (search) actions, or if a criminal offence is committed by a minor.

3. Pre-trial investigation term can be extended in the manner prescribed in Chapter 24(4) of this Code. In this case, the total term of pre-trial investigation cannot exceed:

• One month from the day of notice of suspicion of criminal offence in cases prescribed by paragraphs 1 and 2 of part 3 of this Article;
• Six months from the day of notice of suspicion of a misdemeanour.

4. Under Article 298 of the Criminal Procedure Code of Ukraine, pre-trial investigation of criminal offences is carried following general rules of pre-trial investigation laid down by this Code, given Chapter 25 of the Criminal Procedure Code of Ukraine.

Before entering information on a criminal offence to the Unified Register of Pre-Trial Investigations, it is allowed to carry some actions prescribed in Article 214(3) of this Code.

5. The Criminal Procedure Code of Ukraine has been supplemented with a number of articles, in particular, article 298-1 which stipulates that procedural sources of evidence in criminal proceedings on criminal offences, besides those specified in Article 84 of the Code, also are explanations of persons, results of medical examination, expert opinion, readings of technical devices and means with the function of photo, film and videomaking, or film-making and video-making devices.

Article 298-2 which lists reasons and conditions for an authorized person to detain a person suspected of a criminal offence without investigator judge’s writ.

Article 298-3 which prescribes seizure of things and documents which are a tool and/or means of criminal offence commission or the immediate object of offence detected during detention, personal search of the detained or examination of things by the officer.

Article 298-4 which lists properties of notice of suspicion.

Article 298-5 which lays down the procedure for extending inquiry term. Thus, if additional investigatory and search actions are required, the inquiry term can be extended by the prosecutor for 30 days. Upon extension of the inquiry term, the prosecutor issues a ruling. In case it is impossible to complete the inquiry within the term specified by Article 219 of the Code, the inquiry officer or prosecutor releases the detained person not later than 72 hours upon detention.

6. During the pre-trial investigation of criminal offences, detention of a person on the grounds and in the manner specified by the Code is employed as a provisional measure. Furthermore, such provisional measures as personal commitment and personal guarantee can be applied (Article 299 of the Criminal Procedure Code).

During the pre-trial investigation of criminal offences it is allowed to carry all investigatory (search) actions prescribed in this Code, as well as select explanations to ascertain circumstances of a criminal offence, carry medical examination, obtain expert opinion which must meet the requirements to the expert opinion, take readings of technical devices and means which have functions of photo, film and videomaking, or photo, film or videomaking devices in proceedings on criminal offences, seize tools and means of a criminal offence, things and documents which are the immediate object of criminal offence, or which were detected during detention of a person, personal search or search of things, before entering information on the criminal offence to the Unified Register of Pre-Trial Investigations (Article 300 of the Criminal Procedure Code).

7. Under Article 301 of the Criminal Procedure Code of Ukraine a prosecutor is obliged not later than 3 days after receiving the inquiry file together with the notice of suspicion, and in case of detention in the manner prescribed by Article 298-2(4) of this Code, take one of the following actions within 24 hours:

• deliver a decision on closing criminal proceedings, and in case of detention in the manner prescribed by Article 298-2(4) of this Code – release the detained person immediately;
• return to the inquiry officer criminal proceedings file with written directives on procedural actions with extension of the inquiry term for up to one month, and release the detained person (in case of detention in the manner prescribed by Article 298-2(4) of this Code);
• apply to court with indictment, motion for coercive medical or educational measures, or for release from criminal responsibility;
• in case signs of crime are detected – forward the criminal proceedings file for pre-trial investigation.

8. Upon receiving indictment act for the criminal offence, the court within five days, and in case of detention of a person as prescribed by Article 298-2(4) of the Code, schedules court hearing immediately.

The court considers indictment act for the criminal offence without court hearing in the court session in absentia if the defendant does not contest the circumstances ascertained during the inquiry and agrees with the indictment act consideration (Article 381 of the Criminal Procedure Code of Ukraine).

9. The sentence upon consideration of the indictment act for criminal offence can be appealed under Article 394 of the Code (Article 382 of the Criminal Procedure Code of Ukraine).

Review has been prepared by Illya Kostin, attorney-at-law, partner at Legal Alliance Company, and Daria Borysova, assistant attorney-at-law at Legal Alliance Company.