Iryna Hlovyuk, Attorney and Legal Advisor at Barristers LLP: "When the Victim's Withdrawal of Charges Is Not a Sufficient Argument"

On January 11, 2019, amendments and additions to the Code of Criminal Procedure came into effect, clarifying the rules for private prosecution proceedings and proceedings based on plea agreements. From now on, perpetrators of domestic violence will be held accountable in court, as the victim’s withdrawal of charges will no longer be grounds for dismissing criminal proceedings.

A complaint will lead to a verdict

These changes stem from Ukraine’s accession to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence. In particular, to implement the provisions of the convention, the rules governing private prosecution proceedings have been clarified; these now include domestic violence, illegal abortion or sterilization, forced marriage, and sexual violence (Article 153(1) of the Criminal Code). Paragraphs 2 and 3 of Article 477(1) of the Code of Criminal Procedure, in turn, have been repealed. It is specified that the refusal of the victim or the victim’s representative to press charges cannot serve as grounds for closing criminal proceedings related to domestic violence.

These changes raise questions regarding their consistency with the provisions of the Convention and the appropriateness of excluding subparagraphs 2 and 3 of Part 1 of Article 477 of the Code of Criminal Procedure.

Article 55 of the Convention stipulates that the Parties shall ensure that investigations or criminal prosecutions are conducted into offenses under Article 35 (physical violence), Article 36 (sexual violence, including rape), Article 37 (forced marriage), Article 38 (female genital mutilation), and Article 39 (forced abortion and forced sterilization) of this Convention are not made entirely dependent on a report or complaint filed by the victim, if the offense was committed wholly or partly within its territory, and that proceedings may continue even if the victim withdraws her statement or complaint.

As stated in the explanatory report to the Convention (CETS No. 210, para. 280), the competent authorities must respond promptly and directly to acts that result in serious bodily injury or lead to loss of life. Given that many of the offenses covered by this Convention are committed by family members, intimate partners, or individuals close to the victim—who may feel shame, fear, and helplessness—very few reports are filed, and, consequently, there are few convictions. Therefore, law enforcement agencies must conduct forward-looking investigations: collecting physical evidence, witness statements, medical examination results, and other materials that will ensure the case proceeds even if the victim withdraws their report or complaint in cases of severe violence—such as physical violence resulting in death or bodily injury.

Effective Measures

Under Article 477 of the Code of Criminal Procedure, proceedings are conducted in the form of a private prosecution for crimes provided for in: Article 1261 (“Domestic Violence”), Article 134 (“Illegal Abortion or Sterilization”), Article 1512 (“Forced Marriage”), Part 1 of Article 152 (“Rape”), Part 1 of Article 153 (“Sexual Assault”), and Article 154 (“Coercion to Engage in Sexual Intercourse”) of the Criminal Code. In other words, this is inconsistent with the Convention’s provision that “investigations or criminal proceedings … shall not be made entirely dependent on a report or complaint filed by the victim.” This, in turn, calls into question the effective implementation of the Convention’s provisions.

Furthermore, pursuant to paragraph 7 of Part 1 of Article 284 of the Code of Criminal Procedure, criminal proceedings are terminated if the victim, or, in cases provided for by this Code, their representative, withdraws the accusation in criminal proceedings brought as a private prosecution, except for proceedings concerning a crime related to domestic violence. This generally corresponds to the provisions of Article 55 of the Convention regarding the fact that “proceedings may continue even if the victim withdraws their statement or complaint.”

Furthermore, the wording of Article 284 of the Code of Criminal Procedure does not answer the question of whether this provision applies only to the offense provided for in Article 1261, or does it also apply to other criminal offenses, based on the definition of “domestic violence” contained in paragraph 3 of Part 1 of Article 1 of the Law “On Preventing and Combating Domestic Violence”? In the latter case, it encompasses the possibility of classification under other criminal offenses as well, but depending on the context in which they were committed (within the family or within the place of residence, or between relatives, or between former or current spouses, or between other persons who live (or lived) together as a family but are not (or were not) related by blood or married to one another).

Unjustified Exclusions

The issue of the appropriateness of excluding subparagraphs 2 and 3 of Part 1 of Article 477 of the Code of Criminal Procedure requires separate consideration. In general, most of the excluded criminal offenses constitute acts of domestic violence. Therefore, their conditional “transfer” to public prosecution appears logical from the perspective of Article 55 of the Convention. However, violations of traffic safety rules or the operation of a vehicle by the person driving it, in the absence of aggravating circumstances, do not fit into this logical framework for reclassification. After all, such an offense does not always exhibit the characteristics of domestic violence.

The provisions of paragraph 3 of Article 477 of the Code of Criminal Procedure were also removed; these provisions stipulated that proceedings regarding a number of crimes are conducted as private prosecutions if they are committed by a husband (wife), another close relative or family member of the victim, or by a person who was employed by the victim and caused damage exclusively to the victim’s property. And while one might agree with the first part in light of efforts to combat domestic violence, it is unclear why crimes committed by an employee have been “transferred” to public prosecution.

After all, what public interest is there in convicting a person who, for example, committed theft at a workplace, then repented and compensated for the damage? Or what if the victim, taking into account the employee’s difficult life circumstances, forgave him for this offense? Therefore, the decision to remove this provision in its entirety is ill-conceived, and with regard to labor relations, it fails to take into account the private interests of the victim and global trends toward the use of alternatives to criminal prosecution in modern criminal justice systems, as reflected, in particular, in Recommendation No. 6R(87)18 of the Committee of Ministers of the Council of Europe to member states “On the Simplification of Criminal Justice.”

Reconciliation with the Victim

Article 48 of the Convention provides that the Parties shall take the necessary legislative or other measures to prohibit mandatory alternative dispute resolution processes, including mediation and reconciliation, in relation to all forms of violence falling within the scope of this instrument.

Accordingly, the Code of Criminal Procedure specifies that a reconciliation agreement in criminal proceedings concerning crimes related to domestic violence may be concluded only at the initiative of the victim, the victim’s representative, or the victim’s legal representative. If the actions or interests of the legal representative conflict with the interests of the person he or she represents, such a legal representative shall be replaced by another person from among those specified in Article 44 of this Code, upon the decision of the prosecutor, the investigating judge, or the court.

In addition to the issue of interpreting the concept of “crimes related to domestic violence,” which was discussed above, there are doubts regarding the court’s ability to determine who initiated the agreement if the parties are unwilling to disclose this information or provide false information. Therefore, there is no certainty regarding the practical application of this provision.