CRIMINAL LAW AND CRIMINAL PROCEDURE UPDATES AT THE START OF 2019!

CRIMINAL LAW AND CRIMINAL PROCEDURE UPDATES AT THE START OF 2019!

Effective January 1, 2019, the Law of Ukraine “On the Use of Human Anatomical Materials for Transplantation,” dated May 17, 2018, comes into force, which sets forth an updated version of Article 143 of the Criminal Code of Ukraine, “Article 143. Violation of the Procedure for the Transplantation of Human Anatomical Materials Established by Law.”

Effective January 1, 2019, the Law of Ukraine “On Amendments to the Tax Code of Ukraine and Certain Other Legislative Acts of Ukraine Regarding the Improvement of Administration and Revision of Rates for Certain Taxes and Fees” dated November 23, 2018, which sets forth the updated version of Article 204 of the Criminal Code of Ukraine, “Article 204. Illegal Manufacture, Storage, Sale, or Transportation for the Purpose of Selling Excise Goods.”

Effective January 1, 2019, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding the Conservation of Ukrainian Forests and the Prevention of the Illegal Export of Unprocessed Timber” dated September 6, 2018, comes into force, whereby:

The Criminal Code of Ukraine is supplemented with Article 201-1: “Article 201-1. The movement across the customs border of Ukraine, without customs control or by concealing them from customs control, of timber or sawn timber from valuable and rare tree species, unprocessed timber, as well as other timber, prohibited from being exported beyond the customs territory of Ukraine;
Article 246 of the Criminal Code of Ukraine, “Illegal Logging or Illegal Transportation, Storage, or Sale of Timber,” has been revised;
an amendment has been made to Article 216 of the Criminal Procedure Code of Ukraine, whereby the investigation of crimes provided for in Article 201-1 is assigned to the jurisdiction of security investigative agencies.

Effective January 1, 2019, the provisions of the Law of Ukraine “On Amendments to Certain Legislative Acts Regarding Ensuring Compliance with the Rights of Participants in Criminal Proceedings and Other Persons by Law Enforcement Agencies During Pretrial Investigations” dated November 16, 2017, which introduced amendments and additions to the Criminal Procedure Code of Ukraine regarding the rules for the use of video recording equipment during court proceedings.

It should be noted that, as amended by this law, Part 5 of Article 27 of the Criminal Procedure Code of Ukraine provides: “During court proceedings and in cases provided for by this Code, during a pretrial investigation, a complete recording of the court session and procedural actions shall be ensured using audio and video recording equipment. The official record of a court hearing shall be only the technical recording made by the court in accordance with the procedure provided for by this Code.” Part 4 of Article 107 of the Criminal Procedure Code of Ukraine specifies that the recording of criminal proceedings using technical means during the consideration of matters by an investigating judge—except for decisions regarding the conduct of covert investigative (search) actions— and in court during judicial proceedings, is mandatory. If not all persons participating in the judicial proceedings appear at the court hearing, or if, in accordance with the provisions of the Criminal Procedure Code of Ukraine, the judicial proceedings are conducted by the court in the absence of such persons, no recording of the criminal proceedings in court is carried out using technical means.

It should be noted that:

1. According to paragraph 24 of Part 1 of Article 3 of the Criminal Procedure Code of Ukraine, court proceedings “include preparatory court proceedings, the trial, and the adoption and pronouncement of a court decision, as well as proceedings for the review of court decisions on appeal, in cassation, and on the basis of newly discovered or exceptional circumstances.” At the same time, the amendments to Part 5 of Article 27 of the CPC of Ukraine take effect on January 1, 2019, only insofar as they concern the trial. Thus, at other stages, they take effect upon official publication. Part 4 of Article 107 of the Code of Criminal Procedure of Ukraine stipulates that the consideration of matters by an investigating judge must be recorded, with the exception of authorizations for covert investigative (search) actions and court proceedings. Thus, the legislature has clearly distinguished between the concepts of “court proceedings” and “consideration of issues arising during the pretrial investigation by an investigating judge.” The provision regarding the application of Part 5 of Article 27 of the Code of Criminal Procedure of Ukraine as of January 1, 2019, applies exclusively to court proceedings. Indeed, there are no notes indicating that this provision does not apply to the consideration of matters by an investigating judge. By “technical recording devices,” the legislature means audio and video recording equipment (Article 27(5) of the Code of Criminal Procedure of Ukraine). The use of such devices to record proceedings conducted by an investigating judge is mandatory. Thus, even prior to January 1, 2019, an investigating judge—except in cases provided for in Part 4 of Article 107 of the Code of Criminal Procedure of Ukraine—was required, when considering a motion for the application of preventive measures, to ensure that the hearing was recorded using both audioand video recording equipment (Ponomarenko, D. A ruling on pretrial detention issued without recording the proceedings using technical means is invalid // Available at: https://zib.com.ua/ua/132991-uhvala_pro_vzyattya_pid_vartu_postanovlena_bez_zapisu_rozgly.html).

2. Part 6 of Article 107 of the Criminal Procedure Code of Ukraine stipulates that failure to use technical means to record criminal proceedings in cases where such use is mandatory renders the relevant procedural action and the results obtained as a consequence of its performance invalid, except in cases where the parties do not object to recognizing such an action and the results of its implementation as valid. Taking into account the aforementioned amendments and additions, the consensus-based regime governing the consequences of failing to use technical means of recording criminal proceedings in cases where such use is mandatory, as provided for in Part 6 of Article 107 of the CPC, — “Failure to use technical means of recording criminal proceedings in cases where such use is mandatory renders the relevant procedural action and the results obtained as a consequence of its performance invalid, except in cases where the parties do not object to recognizing such an action and the results of its implementation as valid,” should apply only to cases where the relevant procedural action is carried out. Accordingly, this rule cannot apply to the consideration of motions and complaints by an investigating judge, given, first, that such consideration constitutes a series of procedural actions, and second, that in Article 107 of the Code of Criminal Procedure of Ukraine, it is not referred to as a “procedural action” but as “consideration of matters by an investigating judge” (Hlovyuk I. V., Stoyanov M. M. The Problem of Interpreting Part 6 of Article 107 of the Code of Criminal Procedure of Ukraine in the Context of the Updated Criminal Procedural Legislation // Available at: http://dspace.onua.edu.ua/bitstream/handle/11300/10772/Hloviuk%20Stoyanov%202018.pdf?sequence=1&isAllowed=y)

On January 11, 2019, the Law of Ukraine “On Amendments to the Criminal Code and the Code of Criminal Procedure of Ukraine for the Purpose of Implementing the Provisions of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence” dated December 6, 2017, which introduces significant amendments and additions to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine, namely:

The Criminal Code of Ukraine has been supplemented with Article 126-1 “Domestic Violence” in the following wording: “Domestic violence, that is, the intentional and systematic commission of physical, psychological, or economic violence against a spouse or former spouse or another person with whom the perpetrator is (or was) in a family or close relationship, resulting in physical or psychological suffering, health disorders, loss of working capacity, emotional dependence, or a deterioration in the victim’s quality of life, - is punishable by community service for a term of one hundred fifty to two hundred forty hours, or by arrest for a term of up to six months, or by restriction of liberty for a term of up to five years, or by imprisonment for a term of up to two years.”
Article 134 of the Criminal Code of Ukraine, “Illegal Performance of an Abortion or Sterilization,” has been revised;

The Criminal Code of Ukraine has been supplemented with Article 151-2, “Coercion into Marriage,” in the following wording: “1. Coercing a person to enter into marriage or to continue a marriage entered into under duress, or to enter into a cohabiting relationship without marriage, or to continue such a cohabiting relationship, or inducing a person for this purpose to travel to the territory of a state other than the one in which they reside, is punishable by arrest for a term of up to six months, or restriction of liberty for a term of up to three years, or imprisonment for the same term. 2. The same acts, if committed repeatedly or by prior conspiracy by a group of persons, or with respect to a person who has not reached the legal age for marriage, or with respect to two or more persons, -shall be punishable by restriction of liberty for a term of up to five years or imprisonment for the same term”;

Article 152 of the Criminal Code of Ukraine, “Rape,” is set forth in a new version: “1. The commission of acts of a sexual nature involving vaginal, anal, or oral penetration of another person’s body using the genitals or any other object, without the voluntary consent of the victim (rape)—shall be punishable by imprisonment for a term of three to five years. 2. Rape committed repeatedly or by a person who has previously committed anyof the crimes provided for in Articles 153–155 of this Code, or the commission of such acts against a spouse or former spouse or another person with whom the offender is (was) in a family or close relationship, or against a person in connection with the performance by that person of official, professional, or public duties, or against a woman whom the offender knew to be pregnant, shall be punishable by imprisonment for a term of five to ten years. 3. Rape committed by a group of persons, or the rape of a minor, shall be punishable by imprisonment for a term of seven to twelve years. 4. The acts described in paragraph one of this article, committed against a person under the age of fourteen, regardless of that person’s voluntary consent, shall be punishable by imprisonment for a term of eight to fifteen years. 5. The acts specified in paragraphs one, two, three, or four of this article that result in serious consequences shall be punishable by imprisonment for a term of ten to fifteen years. Note: Consent is considered voluntary if it results from the free expression of a person’s will, taking into account the accompanying circumstances.”

Article 153 of the Criminal Code of Ukraine is set forth as follows: “Article 153. Sexual Assault. 1. The commission of any violent acts of a sexual nature not involving penetration of another person’s body, without the voluntary consent of the victim (sexual assault) is punishable by imprisonment for a term of up to five years. 2. Sexual assault committed repeatedly or by a person who has previously committed any of the crimes provided for in Articles 152, 154, 155 of this Code, or the commission of such acts against a spouse or former spouse or another person with whom the offender is (or was) in a family or close relationship, or against a person in connection with the performance by that person of official, professional, or public duties, or against a woman whom the offender knew to be pregnant, shall be punishable by imprisonment for a term of three to seven years. 3. Sexual assault committed by a group of persons, or sexual assault against a minor, shall be punishable by imprisonment for a term of five to seven years. 4. The acts described in paragraph one of this article, committed against a person under the age of fourteen, regardless of that person’s voluntary consent, shall be punishable by imprisonment for a term of five to ten years. 5. The acts specified in paragraphs one, two, three, or four of this article that result in serious consequences shall be punishable by imprisonment for a term of ten to fifteen years.”

The Criminal Code of Ukraine has been supplemented with Section XIII-1, “RESTRICTIVE MEASURES,” which provides for the possibility of applying such measures in the interests of a victim of a crime related to domestic violence, concurrently with the imposition of a non-custodial sentence, or with exemption from criminal liability or punishment; These measures consist of the court imposing one or more restrictive measures, pursuant to which the convicted person may be subject to the following obligations: 1) a prohibition on being present at the place of shared residence with the victim of domestic violence; 2) restrictions on contact with a child if the domestic violence was committed against the child or in the child’s presence; 3) a prohibition on approaching within a specified distance of a place where the victim of domestic violence may reside permanently or temporarily, or where the victim may be present temporarily or regularly due to work, education, medical treatment, or other reasons; 4) a prohibition on correspondence, telephone calls with the victim of domestic violence, or other contact via means of communication or electronic communications, either personally or through third parties; 5) referral to an abuser intervention program or a probation program. Such measures may be imposed for a period of one to three months and, if necessary, may be extended for a period determined by the court, but not exceeding 12 months. Supervision of the conduct of convicted persons subject to restrictive measures is carried out by the probation authority at the convicted person’s place of residence, and in the case of a crime committed by a military servicemember, by the commander of the military unit.

- The Criminal Procedure Code of Ukraine has been amended to expand the list of documents that may be temporarily seized as part of a measure to ensure criminal proceedings—specifically, the temporary restriction on the exercise of a special right: documents certifying the right to possess and carry weapons; the range of circumstances considered when selecting a preventive measure has been expanded to include: the risk of continued or repeated unlawful conduct, in particular the risk of fatality posed by the suspect or defendant, including in connection with their access to weapons;

- The Criminal Procedure Code of Ukraine provides a list of restrictive measures that may be imposed on a suspect or defendant when applying a less severe preventive measure than the one specified in the investigator’s motion, or by a prosecutor regarding the selection of a preventive measure in the interests of a victim of a crime related to domestic violence: 1) a prohibition on staying in a place of shared residence with a person who has been a victim of domestic violence; 2) a restriction on contact with a child if the domestic violence was committed against the child or in the child’s presence; 3) a prohibition on approaching within a specified distance of a place where the victim of domestic violence may reside permanently or temporarily, or may be present temporarily or regularly in connection with work, education, medical treatment, or for other reasons; 4) a prohibition on correspondence, telephone calls with the victim of domestic violence, or other contact via means of communication or electronic communications, either personally or through third parties; 5) a referral for treatment for alcohol, drug, or other addictions, or for illnesses that pose a danger to others, as well as a referral to a program for perpetrators;

- The Criminal Procedure Code of Ukraine specifies that the refusal of the victim or their representative to press charges in criminal proceedings in the form of a private prosecution may NOT serve as grounds for dismissing criminal proceedings related to domestic violence.

- The Criminal Procedure Code of Ukraine restricts the initiation of reconciliation agreements in criminal proceedings concerning crimes related to domestic violence: an agreement may be concluded only at the initiative of the victim, their representative, or their legal representative. However, if the actions or interests of a legal representative conflict with the interests of the person they represent, such a legal representative shall be replaced by another upon the decision of the prosecutor, the investigating judge, or the court;

- The Criminal Procedure Code of Ukraine clarifies the rules for proceedings in the form of a private prosecution, namely: criminal offenses subject to such proceedings include domestic violence, illegal abortion or sterilization, forced marriage, and sexual violence (Part 1 of Article 153 of the Criminal Code of Ukraine);

- The Criminal Procedure Code of Ukraine amended the provisions of Article 477, which previously stipulated that proceedings in the form of a private prosecution are conducted for criminal offenses provided for in Part 2 of Article 122 (intentional bodily injury of moderate severity under aggravating circumstances), Part 2 of Article 126 (assault and battery under aggravating circumstances, except where such acts are committed by a group of persons), Article 128 (negligent infliction of serious or moderate bodily injury), the first part of Article 130 (knowingly exposing another person to the risk of infection with the human immunodeficiency virus or another incurable infectious disease that is life-threatening), Part 1 of Article 146 (unlawful deprivation of liberty or kidnapping without aggravating circumstances), Part 2 of Article 152 (rape committed repeatedly or by a person who has previously committed anyof the crimes provided for in Articles 153–155 of the Criminal Code of Ukraine), Part 1 of Article 153 (violent satisfaction of sexual desire in an unnatural manner), Part 1 of Article 286 (violation of traffic safety rules or transport operation rules by persons driving vehicles, without aggravating circumstances), Part 1 of Article 296 (hooliganism without aggravating circumstances), Part 2 of Article 361 (unauthorized interference with the operation of electronic computing machines (computers), automated systems, computer networks, or telecommunications networks, under aggravating circumstances), Part 2 of Article 362 (unauthorized actions involving information processed in electronic computing machines (computers), automated systems, or computer networks, or stored on data storage media, committed by a person who has the right to access such information) of the Criminal Code of Ukraine—if committed by the victim’s spouse—EXCLUDED;

- in the Criminal Procedure Code of Ukraine, the provisions of Article 477, which stipulated that proceedings regarding criminal offenses provided for in Article 185 (theft, except for theft committed by an organized group), Article 186 (robbery, except for robbery committed by an organized group), and Article 189 (extortion, except for extortion committed by an organized group or combined with violence that endangers a person’s life or health), Article 190 (fraud, except for fraud committed by an organized group), Article 191 (misappropriation, embezzlement, or acquisition of property through abuse of official position, other than that committed by an organized group, or causing harm to state interests), Article 192 (causing property damage through deception or abuse of trust), parts one or two of Article 289 (unlawful seizure of a vehicle without particularly aggravating circumstances), Article 357 (the theft, misappropriation, or extortion of documents, stamps, or seals; the acquisition thereof through fraud or abuse of official position; or their damage) of the Criminal Code of Ukraine—if committed by the husband (spouse) of the victim, another close relative, or a family member of the victim, or if they are committed by a person who was an employee of the victim and caused damage exclusively to the victim’s property—EXCLUDED.