The list of amendments set forth in Bill No. 9655, which was adopted by the Ukrainian parliament as a basis, concerns the improvement of the system for ensuring the safety of individuals participating in criminal proceedings. This system is an important element of Ukraine’s criminal procedure system, as its implementation and operation ensure effective criminal proceedings, high-quality pretrial investigations and court hearings, as well as the fulfillment of the objectives of criminal proceedings as provided for by the Criminal Procedure Code of Ukraine (CPC).

Given the need to ensure the safety of participants in criminal proceedings, it is imperative to improve the existing mechanism, eliminate its shortcomings and gaps in the regulatory framework, and incorporate positive international practices into Ukraine’s national legislation.

The draft law proposes the following changes.

First. It is proposed to amend Part 3 of Article 214 of the CPC by adding a provision stating that, if signs of a criminal offense are detected that indicate a real threat to the life, health, housing, and property of persons subject to security measures in accordance with the Law of Ukraine “On Ensuring the Safety of Persons Participating in Criminal Proceedings” (the Law), a pretrial investigation shall be initiated immediately, and information regarding it shall be entered into the Unified Register of Pretrial Investigations (URPI) without delay.

Although this amendment is intended to provide safeguards for individuals subject to security measures, it does not fully preclude law enforcement officers and investigating judges from exercising their discretionary powers.

As of today, Part 1 of Article 214 of the Code of Criminal Procedure stipulates that an investigator, an inquiry officer, or a prosecutor must, without delay, but no later than 24 hours after the filing of a complaint, a report of a criminal offense, or after independently discovering from any source circumstances that may indicate the commission of a criminal offense, must enter the relevant information into the Unified Register of Pre-trial Investigations, initiate an investigation, and, within 24 hours of entering such information, provide the complainant with an extract from the Unified Register of Pre-trial Investigations.

In practice, there are often cases where law enforcement officers refuse to register criminal proceedings on the grounds that the complaint lacks information indicating that a criminal offense has been committed.

Case law on this issue is also inconsistent, as some investigating judges interpret the provisions of Article 214(1) of the Code of Criminal Procedure as mandatory for law enforcement officers, requiring them not only to review complaints alleging a criminal offense and record them in the case log, but also to enter the relevant information into the Unified Register of Pre-trial Investigations and, subsequently, if the investigation establishes that the elements of a criminal offense are not present, to close the relevant proceedings pursuant to paragraph 2 of Part 1 of Article 284 of the Code of Criminal Procedure.

Other investigating judges, however, hold the opposite view.

In this case, on September 30, 2021, a panel of judges of the Second Judicial Chamber of the Cassation Criminal Court issued a ruling in Case No. 556/450/18 (Proceedings No. 51-4229km20) and set forth a legal position stating that the basis for initiating a pretrial investigation is not any and all received and registered statements, or reports, but only those that contain substantial circumstances indicating that a criminal offense may have been committed.

The ambiguous wording of Part 1 of Article 214 of the Code of Criminal Procedure, as well as the conclusions of the Supreme Court, allow law enforcement officers and investigating judges to apply a subjective assessment when determining whether the elements of a criminal offense are present or absent, based on the content of the submitted statement.

However, the fact remains overlooked that at this stage of the legal proceedings regarding the alleged commission of an act for which liability is established by the Criminal Code of Ukraine (CC), there is insufficient objective information even to make a preliminary determination of the presence or absence of the elements of a criminal offense.

In other words, such a determination is possible only after criminal proceedings have been initiated and investigative (search) and procedural actions have been conducted within those proceedings, which will be necessary to establish the relevant facts.

A subjective assessment by analogy may also be applied in situations involving reports of criminal offenses concerning threats to the life, health, home, and property of individuals subject to security measures.

These circumstances will undoubtedly undermine the objectives of criminal proceedings as set forth in Article 2 of the Code of Criminal Procedure, since the protection of individuals from criminal offenses will not be adequately ensured.

Separately, attention must also be drawn to the absence of deadlines for entering information into the Unified Register of Pre-trial Investigations following the review of reports of criminal offenses involving threats to the life, health, housing, and property of individuals subject to security measures.

Why is this important? Part 1 of Article 214 of the CPC stipulates that an investigator, inquiry officer, or prosecutor is required to enter information regarding the commission of a criminal offense into the Unified Register of Pre-trial Investigations without delay, but no later than 24 hours.

Since the word “immediately” is synonymous with the word “without delay,” it would be appropriate to clarify, in an amendment to Part 3 of Article 214 of the CPC, the deadlines for entering such information into the Unified Register of Pre-trial Investigations so that individuals understand whether their report of a criminal offense will be processed under the general procedure, that is, within 24 hours of its receipt by a law enforcement officer, or within other, shorter timeframes.

Second. As of today, only participants in criminal proceedings (the victim, suspect, defendant, witness, and other persons specified in Article 2 of the Law) may file motions to ensure their safety.

However, under the current version of Article 2(1) of the Law, convicted persons do not have this right, since the pretrial investigation has been completed and the court proceedings have concluded.

The draft law proposes to provide that a convicted person, where there are appropriate grounds, has the right to security through the application of the measures specified in Articles 1 and 7 of the Law and in paragraph “c” of Part 1 of Article 2 of the Law.

The amendment to Article 2 of the Law proposed by the legislature is of great importance for ensuring the rights of convicted persons, since risks to their life, health, residence, and property—depending on the specifics of the criminal proceedings—may exist not only during the pretrial investigation and court proceedings but also after a conviction becomes final.

Third. The draft law recommends adding an investigating judge to the list of entities authorized to decide on the application of security measures, as well as specifying that decisions on the application of security measures are valid for a term ranging from 1 month to 5 years, except for decisions on the application of security measures regarding persons held in correctional facilities, pretrial detention centers, or facilities with a special detention regime, which are issued for a term of up to 2 months and may be extended solely by decision of an investigating judge, the court, based on motions filed by an investigator, a detective, or a prosecutor, as well as by a body (unit) conducting operational-investigative activities, regarding persons who participated in or assisted in the detection, prevention, or cessation of criminal offenses, for a term of up to 1 year (Part 2 of Article 3 of the Law, as amended by the draft).

Currently, security measures may be applied by a body conducting operational-investigative activities, an investigator, a preliminary inquiry officer, a prosecutor, and by an investigating judge only in the cases provided for in Part 6 of Article 206 of the Code of Criminal Procedure and by a court.

The current version of Part 6 of Article 206 of the Code of Criminal Procedure stipulates that if, during any court hearing, a person alleges that violence was used against them during their arrest or detention by an authorized state authority, a state institution (a government agency or state institution authorized by law to detain persons), the investigating judge is required to record such a statement or accept a written statement from the person and take the necessary measures to ensure the person’s safety in accordance with the law.

From the cited article, it can be concluded that an investigating judge does not exercise judicial oversight in all cases regarding the application of security measures.

Adding an amendment to Part 2 of Article 3 of the Law will enable a person to apply to an investigating judge not only when they have suffered physical violence during arrest and/or detention in a pretrial detention facility, but also in other cases where there are reasonable grounds to believe that there is a real threat to the person’s life, health, home, and property.

However, the most significant aspect of the proposed amendments is the establishment of a time limit on the validity of an investigating judge’s ruling on the application of security measures and the duration for which security measures may be applied if such measures are implemented by another authority.

In practice, there are often cases where law enforcement officers, without pursuing a legitimate purpose, apply security measures against a group of individuals defined by law for the purpose of exerting pressure.

For example, in the case of Roman Hryhorovych Chervinsky (a former employee of the Security Service of Ukraine and the Main Intelligence Directorate of the Ministry of Defense of Ukraine), the investigator, after the court had imposed a pretrial measure in the form of detention, exercised his right to independently apply security measures and issued a ruling designating the place of detention for R. ChervinskyG. to be the temporary detention facility within the Pre-Trial Investigation Support Division of the Security Service of Ukraine, instead of the state institution “Kyiv Detention Center.”

R.G. Chervinsky was held in a solitary confinement cell in the temporary detention facility, which, according to the case law of the European Court of Human Rights, may amount to torture due to the psychological pressure and isolation involved. There was no objective evidence indicating a real threat to R.G. Chervinsky’s life or health while he was held in a shared cell.

Based on the provisions of the Code of Criminal Procedure, the defense is not deprived of the opportunity to apply to the pretrial investigation authority with a motion to revoke security measures; however, in the cases mentioned above, there is a high probability that such a motion will be denied.

The amendments proposed by the legislature will enable a specific group of participants in criminal proceedings to protect their rights by directly applying to the investigating judge with a motion to impose, modify, or revoke security measures.

Judicial oversight of the duration of security measures will have a positive impact, as authorized officials will be required to assess, on a case-by-case basis, whether the risk to the life, health, home, and property of the individuals subject to security measures continues to exist or has ceased.

In summary, it can be noted that the adoption of the proposed amendments will help bring the functioning of the existing system for ensuring the safety of participants in criminal proceedings into line with current realities.