The "Mask Show Stop-2" law didn't live up to expectations; we can only hope for "Mask Show Stop-3"

The so-called “Mask Show Stop-2” law, which originally took effect on November 4, 2018, was intended to serve as a logical continuation of the previous “Mask Show Stop” law, which was aimed at strengthening the legal protection of participants in criminal proceedings, including by increasing the liability of law enforcement officers for improper performance of their duties.

It should be noted that the final version of the adopted “Mask Show Stop-2” law differs significantly from the proposed Bill No. 8490 of June 18, 2018, which was intended to amend the Civil Code of Ukraine, the Criminal Procedure Code of Ukraine, as well as the Law of Ukraine “On the Procedure for Compensating Harm Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational-Search Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office, and the Court.”

Thus, the bill proposed to supplement the Criminal Procedure Code of Ukraine with a provision stipulating that if, following the review of a complaint, an investigative judge issues a ruling to revoke a decision by an investigator or prosecutor, revoke a notice of suspicion or an order to suspend proceedings, such a ruling must be forwarded to the head of the agency of which the investigator or prosecutor is an official, in order to initiate an internal investigation regarding that official and to determine whether disciplinary action should be taken.

In turn, the Law of Ukraine “On the Procedure for Compensating Harm Caused to a Citizen by Unlawful Actions of Bodies Carrying Out Operational-Investigative Activities, pre-trial investigation bodies, the prosecutor’s office, and the court” was intended to be amended to include as a basis for a person’s right to compensation for harm the issuance of a court decision upholding their complaint against the decisions, actions, or omissions of an investigator or prosecutor (in accordance with the Code of Criminal Procedure).

Finally, amendments to the Civil Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Law of Ukraine “On the Procedure for Compensating Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational-Investigative Activities, pre-trial investigation bodies, the prosecutor’s office, and the courts,” provided for the state’s ability, in the event that it compensates from the state budget for harm caused by law enforcement officials, to recover such damages from them by way of recourse if their actions are found to constitute a criminal offense or a disciplinary offense.

However, according to the published version of the “Mask Show Stop-2” law, with regard to the liability of law enforcement officers for unlawful actions, only those amendments remained in force which supplement Article 130 of the Criminal Procedure Code of Ukraine with Part 2 regarding the state’s right to file a recourse claim against law enforcement officers for reimbursement of damages paid from the state budget if their actions are found by a guilty verdict to constitute a criminal offenseor a disciplinary offense.

Thus, the expectations many had placed on the “Mask Show Stop-2” law were not met, since the aforementioned amendments to the Code of Criminal Procedure do not serve as a mechanism to protect businesses from unlawful actions by law enforcement officers, but merely expand the circumstances under which the state may exercise its right to seek recourse against the person who caused such harm.

It is clear that, as of today, there remains a pressing need for further legislative improvements to the mechanism for holding law enforcement officers accountable for their unlawful actions and for obtaining appropriate compensation. We can only hope that “Mask Show Stop-3” will address the existing legislative gaps.

Elvira Lazarenko, Associate Partner at Barristers, LLC.