NEW PROVISIONS ON THE CONDUCT OF CRIMINAL PROCEEDINGS UNDER MARTIAL LAW: AMENDMENTS TO THE CRIMINAL PROCEDURE CODE OF UKRAINE AS OF MARCH 3, 2022, AND CLARIFICATIONS FROM THE SUPREME COURT

Irina GLOVYUK, Scientific Advisor to the “BARRISTERS” Law Firm, Honored Lawyer of Ukraine, attorney, Doctor of Law, and professor, and Viktor ZAVTUR, Candidate of Law, Attorney Viktor ZAVTUR, on new developments in the conduct of criminal proceedings under martial law: amendments to the Criminal Procedure Code of Ukraine dated March 3, 2022, and clarifications from the Supreme Court.

The current threats facing the Ukrainian people due to the brutal aggression of the Russian Federation, the killings of civilians, and the destruction of civilian infrastructure by the enemy have necessitated the adoption of amendments and additions to the Criminal Procedure Code of Ukraine to ensure that the criminal justice system functions properly under these extremely challenging conditions.

Therefore, the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine and Other Legislative Acts of Ukraine Regarding Additional Regulation to Ensure the Activities of Law Enforcement Agencies Under the Complex Conditions of Martial Law” dated March 3, 2022, which entered into force on March 8, 2022 (https://bit.ly/3hMv8kL), a number of amendments and additions were made to the CPC of Ukraine. We will outline these amendments and additions below.

The provision of Part 5 of Article 36 of the CPC of Ukraine, which prohibits delegating the conduct of a pretrial investigation into a criminal offense falling under the jurisdiction of the National Anti-Corruption Bureau of Ukraine to another pretrial investigation body, was clarified with the following wording: “except in cases where a pretrial investigation is delegated under martial law.” Under other grounds for a special regime of pretrial investigation, such delegation is not possible. This appears to be due to potential situations in which the National Anti-Corruption Bureau of Ukraine would be effectively prevented from exercising its powers due to military operations.

The title and scope of Article 615 of the Code of Criminal Procedure of Ukraine have been substantially amended, starting with the title itself, which now reads: “Special Regime for Pre-trial Investigation and Extension of Pretrial Detention Periods During Judicial Proceedings Under Martial Law, a state of emergency, or in areas where counterterrorism operations or measures to ensure national security and defense, repel and deter armed aggression by the Russian Federation and/or other states against Ukraine are being conducted.” That is, unlike the previous version, it covers not only the pretrial investigation regime but also the extension of pretrial detention periods during court proceedings, and the deterrence of armed aggression by the Russian Federation no longer applies only to the Donetsk and Luhansk regions, given the armed aggression across the entire territory of Ukraine. The condition under which such a regime is possible is the imposition of martial law or a state of emergency in Ukraine or in certain areas (administrative territories) thereof, the conduct of an antiterrorist operation, or measures to ensure national security and defense, repelling and deterring armed aggression by the Russian Federation and/or other states, and the emergence of an objective impossibility for investigators, prosecutors, investigating judges, and courts to exercise certain powers.

Objective impossibility is a matter of fact and is determined in each specific proceeding, taking into account military operations.

A new provision is that, in the event of an objective impossibility of accessing the Unified Register of Pretrial Investigations, the decision to initiate a pretrial investigation is made by an investigator or prosecutor, and a corresponding ruling is issued; the information required to be entered into the Unified Register of Pretrial Investigations shall be entered into it at the earliest opportunity. The investigating officer also has similar powers, subject to the provisions of paragraph 1 of Article 40-1 of the Criminal Procedure Code of Ukraine.

A specific provision regarding the recording of criminal proceedings stipulates that procedural actions during criminal proceedings must be recorded in the relevant procedural documents, as well as using technical means for recording criminal proceedings, except in cases where recording using technical means is impossible for technical reasons. Judging by the wording, priority should be given to dual recording: in a document and using technical means.

The list of powers has been expanded; if an investigating judge is unable to exercise these powers, they are exercised by the head of the prosecutorial authority upon a motion by a prosecutor or an investigator, as agreed with the prosecutor (the previous version provided for the prosecutor to exercise these powers): bringing a person in for questioning, temporary access to items and documents, seizure of property, authorization for detention for the purpose of bringing a person in for questioning, a motion to conduct a search in accordance with Part 3 of Article 233 of the Criminal Procedure Code of Ukraine, searches, the collection of samples for forensic examination, the conduct of covert investigative (search) actions, the extension of the term of the pretrial investigation, as well as the authority to impose preventive measures. With regard to preventive measures, the following procedure is provided for the imposition of pretrial detention for a term of up to 30 days on persons suspected of committing the crimes specified in Articles 109–115, 121, 127, 146, 146-1, 147, 152, 153, 185, 186, 187, 189–191, 201, 258–258-5, 260–263-1, 294, 348, 349, 365, 377–379, and 402–444 of the Criminal Code of Ukraine; in addition, in exceptional cases, also in the commission of other serious and particularly serious crimes, if a delay in selecting a preventive measure could lead to the loss of evidence of a criminal offense or the flight of a person suspected of committing such crimes. These powers are exercised in accordance with the requirements of Chapter 37 of the Criminal Procedure Code of Ukraine, i.e., the special procedure for criminal proceedings.

If it is objectively impossible to file an indictment with the court, the term of the pretrial investigation is suspended and shall be resumed once the grounds for the suspension no longer exist. It is stipulated that, prior to suspending the pretrial investigation, the prosecutor is required to decide on extending the period of pretrial detention; however, this essentially refers to the head of the prosecutorial authority, since it is he who is entrusted with exercising these “delegated” powers, while the prosecutor may initiate the issue of extending the period of pretrial detention. An analysis of these provisions indicates that a decision must be made specifically to suspend the pretrial investigation.

The term of the investigating judge’s ruling on pretrial detention or the prosecutor’s order on pretrial detention, adopted in accordance with Article 615 of the Code of Criminal Procedure of Ukraine, may be extended by up to one month by the head of the prosecutor’s office upon a motion by the prosecutor or an investigator, agreed upon with the prosecutor. The period of detention may be extended repeatedly within the time limit for the pretrial investigation.

Decisions made by a prosecutor shall be reported to a higher-level prosecutor without delay at the earliest opportunity. According to the Law of Ukraine “On the Prosecutor’s Office,” the higher-level prosecutor is: 1) for prosecutors, heads, and deputy heads of district prosecutor’s office units—the head of the district prosecutor’s office or his first deputy or deputy, in accordance with the division of duties; 2) for prosecutors, heads, and deputy heads of units of the regional prosecutor’s office—the head of the regional prosecutor’s office or his or her first deputy or deputy, in accordance with the division of duties; 3) for the head of a district prosecutor’s office, his or her first deputy, and deputies—the head of the relevant regional prosecutor’s office or his or her first deputy or deputy, in accordance with the division of duties; 4) for the head of a regional prosecutor’s office, his or her first deputy and deputies, the head and deputy head of a unit, and a prosecutor of the Office of the Prosecutor General—the Prosecutor General or his or her first deputy or deputy, in accordance with the division of duties; 5) for the first deputy and deputy to the Prosecutor General—the Prosecutor General. The higher-level prosecutors for the heads of directorates, departments, and their deputies, as well as prosecutors of the Specialized Anti-Corruption Prosecutor’s Office, are the head of the Specialized Anti-Corruption Prosecutor’s Office, his First Deputy and Deputy; for the Deputy and First Deputy Head of the Specialized Anti-Corruption Prosecutor’s Office—the Head of the Specialized Anti-Corruption Prosecutor’s Office. The court is also notified, in accordance with the list established by the State Judicial Administration of Ukraine, with copies of the relevant documents provided no later than 10 days from the date of notification. Article 615 of the Criminal Procedure Code of Ukraine refers only to notifying the court but does not provide for further review of these decisions by an investigating judge.

Complaints regarding decisions, actions, or omissions by a prosecutor, made or taken in accordance with Article 615 of the Code of Criminal Procedure of Ukraine, shall be considered by the court within whose territorial jurisdiction the criminal offense was committed, after ensuring its operation in another locality, or by the court geographically closest to it. It should be noted that the Law of Ukraine “On Amending Part Seven of Article 147 of the Law of Ukraine ‘On the Judicial System and the Status of Judges’ Regarding the Determination of Territorial Jurisdiction in Court Cases” dated March 3, 2022 (https://bit.ly/3tBY6JH), provides that “if a court is unable to administer justice for objective reasons during a state of war or a state of emergency, due to a natural disaster, military operations, counterterrorism measures, or other extraordinary circumstances, the territorial jurisdiction of court cases pending before such a court may be changed, by a decision of the High Council of Justice, adopted upon the motion of the Chief Justice of the Supreme Court, by transferring them to the court geographically closest to the court that is unable to administer justice, or to another designated court. If the High Council of Justice is unable to exercise this authority, it shall be exercised by order of the Chief Justice of the Supreme Court. Such a decision also serves as the basis for transferring all cases pending before the court whose territorial jurisdiction is being changed.” By Order of the Chief Justice of the Supreme Court No. 1/0/9-22 dated March 6, 2022, “On Changing the Territorial Jurisdiction of Court Cases Under Martial Law,” in accordance with Part 7 of Article 147 of the Law of Ukraine “On the Judicial System and the Status of Judges,” and taking into account the inability of courts to administer justice during martial law, the territorial jurisdiction of court cases has been changed (URL: https://cutt.ly/tAv47Ew).

If it is impossible to hold a preliminary hearing, the preventive measure in the form of pretrial detention selected during the pretrial investigation shall be deemed extended until the relevant issue is resolved at the preliminary hearing, but for no longer than two months. If the term of the court order on pretrial detention expires and the court is unable to consider the issue of extending the term of pretrial detention, the pretrial measure in the form of pretrial detention shall be deemed extended until the court resolves the relevant issue, but not longer than two months.

In addition, the Supreme Court has provided guidance on the conduct of criminal proceedings under martial law.

In the Supreme Court’s Letter No. 1/0/2-22 dated March 3, 2022, “On Certain Issues Regarding the Conduct of Criminal Proceedings Under Martial Law,” the procedure for the prosecutor to exercise the relevant powers has been somewhat clarified (https://bit.ly/3i68t3n). First, such decisions may be made by a prosecutor even if the criminal proceedings concern a series of crimes committed by the suspect, at least one of which is a crime provided for in Article 615 of the Criminal Procedure Code of Ukraine. Second, in cases where criminal proceedings are conducted under articles of the Criminal Code of Ukraine not included in the list provided for in Article 615 of the Criminal Procedure Code of Ukraine, it is advisable for the prosecutor to change the territorial jurisdiction of the criminal proceedings and transfer them to another district or region where a court operates. If there are no grounds for the prosecutor to exercise these powers, the prosecutor may apply to the court at the location where the investigative (search) actions are being conducted.

Supreme Court Letter No. 1/0/2-22 dated March 3, 2022, details the procedure for an investigating judge to consider motions for the application of a preventive measure regarding the suspect’s participation in such a court hearing. Paragraph 7 of the Letter stipulates that if, due to objective circumstances, a participant in criminal proceedings is unable to participate in the hearing via videoconference using the technical means specified in the Criminal Procedure Code of Ukraine, as an exception, such a party may be permitted to participate via videoconference using other means; however, care must be taken to explain to that party their procedural rights and obligations.

In this context, the provision of the second paragraph of the aforementioned clause deserves the greatest attention, whereby the Supreme Court permits courts, under martial law, to consider motions for the imposition of preventive measures without the suspect’s participation, “with due justification for such a procedure.”

Certain specific provisions are also set forth regarding the burden of proof for the necessity of applying a preventive measure in the form of pretrial detention during criminal proceedings under martial law. In cases where the territorial jurisdiction over criminal offenses has been changed during the pretrial investigation stage, and the materials of the criminal proceedings have not been transferred or have not been transferred in full due to military operations, when assessing the risks that justify the appropriateness of applying preventive measures in general and pretrial detention in particular, the investigating judge (court) shall be guided by all available materials in the motion to apply (extend) a preventive measure (para. 8 of the Supreme Court’s Letter No. 1/0/2-22 dated March 3, 2022). As follows from the Supreme Court’s clarification, the imposition of martial law and armed aggression against Ukraine are, in and of themselves, risks that courts must take into account when deciding on a preventive measure. When deciding on the extension of a pretrial measure, the court may take into account its prior assessment of specific factual circumstances, made when ruling on previous motions in these criminal proceedings based on the relevant materials, and should not impose an excessive burden on the parties to the criminal proceedings by requesting additional materials (para. 9 of the Supreme Court’s Letter No. 1/0/2-22 dated March 3, 2022).

Investigating judges (the court) must take into account the circumstances of martial law and, if there are sufficient grounds to do so, upon the suspect’s motion, it is appropriate to issue a decision to change the preventive measure from bail to a personal undertaking, provided that the motion is justified by the desire to use the funds deposited as bail, for subsequent deposit into special accounts of the National Bank of Ukraine for the purposes of Ukraine’s defense (para. 10 of the Supreme Court’s Letter No. 1/0/2-22 dated March 3, 2022). There is already the first case law on the application of these provisions, in which courts both change the preventive measure and reduce the amount of bail, transferring the difference to a special account at the request of the bail provider.

The provisions of Part 4 of Article 615 of the Code of Criminal Procedure of Ukraine establish a rather specific procedure for appealing decisions, actions, or omissions by a prosecutor adopted or committed in the exercise of the powers defined in Part 1 of this article. Such complaints must be considered by the court within whose territorial jurisdiction the criminal offense was committed, after ensuring its operation in another locality, or by the court geographically closest to it. It appears that the subject of such an appeal may be both the existence of grounds for a prosecutor to exercise the powers delegated to him or her under martial law and the manner in which those powers are exercised.

Thus, the regulatory provisions and clarifications examined are intended to ensure the stable functioning of the criminal justice system under current conditions; at the same time, they are limited in duration and apply only for the period of martial law, a state of emergency, or in areas where counterterrorism operations or measures to ensure national security and defense, repel and deter armed aggression by the Russian Federation and/or other states against Ukraine are being conducted.