Yuriy Zhovtan, Partner at BARRISTERS JSC, on Amendments to Article 108 of the Criminal Procedure Code of Ukraine

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A draft law No. 8476, “On Amendments to Article 108 of the Criminal Procedure Code of Ukraine,” has been registered with the Verkhovna Rada of Ukraine; it proposes that testimony provided by defendants, victims, and witnesses, as well as explanations provided by experts and specialists during the trial, be recorded in a separate protocol, which shall be attached to the court hearing record. This protocol is to be signed by the court clerk. If the parties identify any discrepancies in this protocol, the parties to the criminal proceedings have the right to file objections.

In the opinion of the author of the bill, amendments should be made to Article 108 of the Criminal Procedure Code of Ukraine to address the problem of the lack of complete and high-quality recording of testimony provided during court hearings.

Indeed, the issue of poor-quality or—for technical reasons—entirely absent recordings of court hearings is problematic, as it entails serious legal consequences, such as the reversal of a lawful and well-founded court decision (Article 415 of the Code of Criminal Procedure of Ukraine).

However, the proposed amendments to Article 108 of the Code of Criminal Procedure of Ukraine will not resolve this problem but will only exacerbate the situation.

Thus, if amendments are made to the Code of Criminal Procedure pursuant to Bill No. 8476, it will also be necessary to amend Articles 412 and 415 of the Code of Criminal Procedure of Ukraine, which, in turn, is not provided for in the aforementioned bill. This is because, in the absence of an audio recording, the court’s decision will be overturned regardless of whether a court hearing transcript exists.

Furthermore, the proposed amendments do not require that testimony and explanations be recorded verbatim by the court clerk in the court hearing transcript. The clerk will record only the main content of the testimony and explanations based on their subjective perception, which in turn will lead to constant objections to the court hearing transcript; and if the audio recording is damaged, there will be no mechanism to determine what testimony was actually given. Therefore, given the technical capabilities of the courts, a return to paper-based recording of testimony is not advisable.

A more effective way to resolve the existing problem is to amend Article 27 of the Criminal Procedure Code of Ukraine on the basis 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” No. 2213-VIII dated November 16, 2017, which stipulates that during court proceedings and in cases provided for by this Code, during the pretrial investigation, a complete recording of the court hearing and procedural actions shall be ensured using audio and video recording equipment. Thus, there will effectively be a dual record of the proceedings, which, in the absence of one of the recording media, will significantly facilitate the establishment of the truth.