Draft law #5610 is a threat to the national interests and human rights

Today, the Verkhovna Rada will consider the draft law #5610 in the second reading. The draft law provides for a number of changes to the Criminal Procedure Code which strengthen the Prosecutor’s Office. This bill was presented personally by the Prosecutor General of Ukraine in the Verkhovna Rada and at a meeting of the committee.

It should be noted that the bill does not actually provide for those critically important changes in the investigation and conviction in absentia (there are no additional changes for Yanukovych and company), except for the continuation of the duration of this institution in the law.

Most of the amendments introduce provisions that give the bodies of pre-trial investigation and the Prosecutor’s Office the power to decide upon the legal fate of criminal proceedings during the investigation phase and decide upon the duration of this investigation on their own.

Despite the fact that Samopomich deputies managed to cancel introduction of a number of dangerous provisions, there are still such norms that may have irreparable negative consequences: the actual suspension of criminal proceedings due to the exclusion of familiarization with materials of case from the period of the pre-trial investigation; conclusion of agreements with terrorists on the recognition of guilt, which will result in the imposition of sentences incommensurable with the crimes committed, and, of course, in favour of these same terrorists; and an incomprehensible procedure for calculating the investigation period.

Obviously, the authorities are being guided by their own interests when so brazenly lobbying the adoption of these amendments. We insist that the draft law 5610 cannot be adopted in the proposed version, which provides for:

  • exclusion of the time of the defence party for familiarization with the materials of the proceeding from the period of the pre-trial investigation

The exclusion of such a procedural action as familiarization with the materials of the pre-trial investigation from the general period of the criminal proceeding creates nothing else than the risk of abuse of powers by the pre-trial investigation bodies.

As a result, we will have termless cases lasting for years and which will depend not so much on the actions of the defence, but on the inaction of the prosecutor, for example.

The pre-trial investigation is over, but all restrictions and the procedural status remain with regard to the person. Such innovation will create an additional gap in the criminal procedural legislation related to the already existing problems of calculating the periods of criminal proceedings.

  • manipulative rules for calculating the period of an investigation

The draft law recommended by the committee includes, among other things, a provision that is supposedly designed to solve the problem of calculating the period of the investigation. Unfortunately, few people paid attention to the fact that the proposed provisions contain such concepts as “one period of time”, “different periods of time”, which are unknown to the criminal procedural law, and consequently, enable prosecutors to use the norms in each case in different ways at their own discretion and depending on the personal interest in a particular case. In fact, such provisions will lead to a double interpretation of norms.

  • agreements on recognition of guilt in cases of especially grave crimes, including terrorism

Neither the current Ukrainian legislation nor the legislation of other democracies provide for the possibility of concluding agreements on the recognition of guilt in the case of particularly grave crimes, including the one committed by by a terrorist group or a terrorist organization. Such unreasonable sycophancy with the certain areas of Donetsk and Luhansk regions will lead to the fact that the prosecutor’s office will negotiate with terrorists, and in exchange for their pleading guilty will impose the smallest possible types of punishment. Adoption of the proposed provision will create possibilities for abuse by the prosecutor’s office, which will be able to pressurize the suspect to obtain evidence it needs, to pressurize the victim, who will be required to consent to the agreement between the suspect and the prosecutor, and thus “voluntarily” renounce their right to a fair consideration of the case. The proposed provision only plays into the hands of the certain areas of Donetsk and Luhansk regions. So the question remains: how have the authorities that have lobbied  the draft law # 5610 benefited from such an unjustified “barter”?

Moreover, with such provisions it is very difficult to look into the eyes of ATO participants, because they have gone through hell not for the terrorists to be offered some agreements.

  • the formal declaration of the search, instead of the actual absence of the suspect, has become the basis for an absentia investigation

Instead of actually systematically approaching the gaps in the current criminal procedural law related to the legislative support for a special pre-trial investigation and judicial proceedings (the so-called in absentia investigation), of which the chairman of the Law Enforcement Affairs Committee unreasonably didn’t let Vitaliy Tytych – the lawyer representing families the Heavenly Hundred heroes –speak, some parliamentarians try to hide behind the loud statements about the punishment of criminal officials guilty of crimes against the Maidan.

The procedure of a special preliminary investigation really needs drastic changes, and very soon such changes will be proposed. Let’s see how actively the deputies will support what is really needed for the sake of imposing sentences onto dozens of officials who fled Ukraine.

The proposals envisaged by the bill 5610 will not solve the existing problems, and will also create new ones with much more terrible consequences and risks of violation of rights for an average Ukrainian and the state as a whole.

Olena Sotnyk
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