On August 22, 2024, the Verkhovna Rada of Ukraine passed Bill No. 11387 in its first reading, aimed at reducing instances of contempt of court and speeding up the processing of criminal cases.

Respect for the judiciary and the efficiency of judicial proceedings are key principles that should ensure public trust in the judicial system.

The bill is currently being actively prepared for adoption in the second reading and as a whole; therefore, participants in criminal proceedings should familiarize themselves now with the proposed legislative changes, which, in particular, are aimed at increasing their liability.

Specifically, Bill No. 11387 amends the Code of Ukraine on Administrative Offenses, increasing liability for the following acts of contempt of court:

• contempt of court (Art. 1853 of the Code of Ukraine on Administrative Offenses), which may manifest as willful failure by a witness, victim, plaintiff, or defendant, or in disrupting order during a court hearing, showing contempt for the court, etc., it is proposed to increase the maximum fine from 300 to 400 non-taxable minimum incomes, which amounts to 6,800 UAH;
• For obstructing the appearance of a juror in court (Article 1855 of the Code of Administrative Offenses), it is proposed to increase the maximum fine from 8 to 100 non-taxable minimum incomes, which amounts to 1,700 UAH.

Reports on the commission of these administrative offenses will be drawn up by court clerks, and the penalty itself will be imposed by decision of the presiding judge of the panel hearing the case during which the offense was committed.

Increasing certain fines tenfold is important because the current fines of 85–136 UAH are no longer relevant and have little disciplinary effect.

At the same time, imposing stricter liability for committing a non-specific list of actions that may be deemed contempt of court could have a chilling effect on participants in the proceedings and even on journalists covering court hearings. If the line between legitimate criticism of judicial actions and a violation of rules of conduct remains unclear, this could negatively impact the transparency and openness of the judicial process.

Attorneys and other representatives may fear that their active or emotional actions will be interpreted as disrespect, thereby reducing the effectiveness of the defense of the rights of accused persons and defendants.

In addition, it is proposed to amend the Code of Administrative Offenses by adding Article 1856-1, which would establish liability for failure to take measures to enforce a court order for the compulsory appearance of a defendant. The penalty for an official’s failure to act on a court order for the compulsory appearance of a defendant, for the unjustified failure to execute such an order by the person responsible for its enforcement, as well as the return of a court order for the appearance to the court without a written explanation of the reasons for its non-execution, is set at a level ranging from one hundred to two hundred non-taxable minimum incomes (from 1,700 to 3,400 UAH).

The problem of non-compliance with court orders for the compulsory appearance of a person has indeed reached colossal proportions; however, its solution hardly lies in increasing the administrative liability of individuals, but rather requires a comprehensive approach aimed at providing law enforcement agencies with real capabilities and resources to ensure the timely execution of such orders.

In addition to increasing administrative liability for certain types of offenses, lawmakers are also amending the Criminal Procedure Code of Ukraine.

Specifically, by amending Article 3 of the CPC of Ukraine, the definition of the term “minimum wage” is removed from the code and the term “subsistence minimum for able-bodied persons” is introduced. Nevertheless, Articles 121 and 122 of the CPC of Ukraine continue to use the previous term.

Bill No. 11387 establishes clear time limits for considering a motion to recuse an investigating judge or a trial judge, which must be considered without delay, but no later than 24 hours after the motion is filed. In addition, there will now be a clear statutory prohibition on a judge who is considering a recusal request against another judge from filing a recusal request against that judge.

In this case, it is evident that, in drafting these amendments, the legislature aimed to ensure the efficiency of criminal proceedings and to eliminate the potential for participants in criminal proceedings to abuse their rights.

At the same time, the existence of a formal deadline does not yet guarantee that it will actually be adhered to in judicial practice. The judicial system is already overburdened, and further accelerating certain procedures could exacerbate the shortage of time and resources.

Furthermore, the inability to challenge any judge deciding the outcome of criminal proceedings—even when there are lawful grounds for such a challenge—indicates a clear curtailment of the rights of participants in criminal proceedings, and in practice may lead to court decisions being rendered by an unlawful panel of judges and their subsequent reversal. Such cases would clearly constitute a violation of the right to a fair trial, guaranteed by Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and would hinder the efficiency of criminal proceedings.

The draft law also proposes to amend Part 4 of Article 95 of the Code of Criminal Procedure of Ukraine with a provision requiring the prosecutor to ensure the appearance in court of prosecution witnesses summoned to the hearing.

In effect, in this article, the legislature duplicates the provision of Part 2 of Article 327 of the Code of Criminal Procedure of Ukraine, which previously stipulated that the appearance in court of an interpreter (except when summoned by the court), a witness, specialist, or expert is ensured by the party to the criminal proceedings that filed the motion to summon them.

By duplicating this obligation, the legislature does not expand the prosecutor’s functions or responsibilities, nor does it provide any resources or tools for promptly locating witnesses and organizing their participation in court.

The significance of such legislative changes is questionable, and they are unlikely to contribute to the efficiency of court proceedings.

The legislature is also increasing the level of liability for participants in criminal proceedings who fail to fulfill their procedural obligations.

Specifically, the maximum fine for failing to appear when summoned by an investigating judge or a court is increased to four times the subsistence minimum for able-bodied persons (12,112 UAH). For failure to appear before an investigating judge or prosecutor, the fine may amount to one times the subsistence minimum for able-bodied persons (3,028 UAH) (Art. 139 of the Code of Criminal Procedure of Ukraine).

Furthermore, the maximum fine increases to four times the subsistence minimum for able-bodied persons (12,112 UAH) in the event that a suspect or defendant fails to fulfill the procedural obligations imposed on them while a preventive measure in the form of a personal undertaking is in effect (Article 179 of the Code of Criminal Procedure of Ukraine).

The liability of sureties who fail to fulfill their obligations is also doubled. Thus, if the proposed amendments to Article 180 of the Criminal Procedure Code of Ukraine are adopted, the amount of the monetary penalty will vary, depending on the circumstances of the criminal proceedings, from 4 to 100 times the subsistence minimum for able-bodied persons (from 12,112 UAH to 302,800 UAH).

Increasing fines alone will not eliminate the root causes of parties’ failure to appear in court (overburdened courts, poor coordination among law enforcement agencies, and a lack of awareness). Without improvements to institutional mechanisms and the resource base, strengthening sanctions will likely have only a short-term effect.

Furthermore, in criminal proceedings, it is important to ensure that penalties are proportionate to the severity of the offense. Excessively high penalties, which sometimes exceed fines for criminal misdemeanors, do not always take into account the individual’s specific circumstances and may raise questions regarding the fairness of the penalty.

Other important changes aimed at ensuring the efficiency of criminal proceedings include amendments to Articles 314 and 315 of the Criminal Procedure Code of Ukraine with provisions stating that the failure of the victim, the victim’s representative, and the victim’s legal representative; the civil plaintiff, the civil plaintiff’s representative, and the civil plaintiff’s legal representative; the civil defendant and the civil defendant’s representative; or the representative of the legal entity against which the proceedings are being conducted—all of whom were duly notified of the date, time, and place of the hearing—shall not prevent the resolution of issues related to preparation for the trial, except in cases where the court deems their participation necessary.

At the same time, participants in the court proceedings who did not attend the preparatory hearing shall have the right to file motions provided for in paragraph 4 of Part 2 of Article 315 of the Code of Criminal Procedure of Ukraine, which must be considered by the court before the start of the trial.

Such changes may lead to restrictions on a person’s access to justice.

For example, if a party (such as a victim or their representative) did not participate in the preparatory hearing for reasons not deemed “compelling” by the court, they effectively lose the opportunity to file a complaint under Part 2 of Article 303 of the Code of Criminal Procedure of Ukraine. This narrows the scope of procedural rights and may contradict general guarantees of an effective defense and the right to challenge decisions, actions, or inaction by the prosecution.

Furthermore, some rulings by investigating judges are not subject to appeal during the pretrial investigation stage and should be reviewed at subsequent stages of the proceedings, particularly during the preparatory hearing. If a party is deprived of a real opportunity to participate or raise objections, the last means of reviewing these rulings effectively disappears.

The ability of parties to criminal proceedings to challenge rulings by investigating judges is one of the checks and balances in the criminal process. If, due to the automatic extension of the preparatory hearing without certain participants (or without recognizing their participation as necessary), these objections are not considered, there is a risk that the case will proceed formally without proper judicial oversight of decisions made at the pretrial stage.

Despite the provision allowing for the subsequent filing of motions under paragraph 4 of Part 2 of Article 315 of the Code of Criminal Procedure of Ukraine, there is a risk that courts may be less willing to reconsider their previous position or decisions made without the participation of interested parties. The lack of any real influence on the formation of the court’s position during the preparatory hearing may complicate the defense of these parties’ interests in the future.

The criminal procedure system is designed to balance the interests of the prosecution, the defense, and the victim. If a victim or civil claimant is unable to exercise their right to file a complaint (for example, due to a technical absence from the preliminary hearing), this may give an unjustified advantage to the other party and violate the principles of adversarial proceedings.

In summary, it should be noted that Bill No. 11387, despite its laudable goal of increasing the efficiency of criminal proceedings and respect for the court, requires more thorough harmonization of certain provisions, the establishment of clear criteria for liability, and balanced sanctions. Without a comprehensive approach and a resolution of systemic problems in the justice system (such as court backlogs and inadequate interagency coordination), these changes may have an extremely limited effect.