Andriy Levkovets, a partner at Barristers JSC, on the changes to the Code of Criminal Procedure: “Is the old code better than the two new ones? For investigators—yes!”

On October 3, 2017, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Procedure of Ukraine, and Other Legislative Acts” (hereinafter referred to as the “Law”), which introduced changes to criminal procedure, specifically aimed at establishing additional safeguards and ensuring citizens’ rights. These amendments are intended to reduce abuses and strengthen the oversight role of investigating judges at this stage, thereby “complicating” the investigator’s work.

However, law enforcement agencies have found a very convenient way to avoid these problems in their work—or at least postpone them—while also getting rid of cases that no one is handling and that worsen their performance statistics.

Thus, paragraph 4 of Section 2 of Chapter 4 of the Law states that subparagraphs 11–27 and 45 of paragraph 7 of Section 1 of this chapter shall take effect three months after this Law enters into force, shall not have retroactive effect, and shall apply to cases in which information regarding a criminal offense was entered into the Unified Register of Pretrial Investigations after these amendments took effect.

At the same time, Article 217 of the Criminal Procedure Code of Ukraine provides that, if necessary, materials from pretrial investigations concerning several persons suspected of committing a single criminal offense, or concerning a single person suspected of committing several criminal offenses, as well as materials from pretrial investigations in which no suspects have been identified, but where there are sufficient grounds to believe that the criminal offenses under investigation were committed by the same person (or persons).

At the same time, in accordance with paragraphs 5 and 6 of the same article, the decision to consolidate or separate pretrial investigation materials is made by the prosecutor, and such a decision cannot be appealed.

In fact, these provisions grant the prosecutor the right, at his or her discretion, to consolidate any two proceedings, regardless of the time or place of the alleged crimes, as well as the individuals named in the procedural documents.

It is also no secret that law enforcement agencies nominally have numerous proceedings on their docket that they have entered into the Unified Register of Pre-trial Investigations (URPI) not of their own volition, but based on a ruling by an investigating judge—and which simply no one is working on.

Therefore, if a prosecutor now needs to initiate and conduct an investigation while avoiding unnecessary complications related to the amendments to the Criminal Procedure Code of Ukraine (such as the possibility of appealing a suspicion or the need to apply to an investigating judge to order an expert examination, etc.), it is sufficient for the prosecutor to issue a resolution merging such an investigation with one of the old cases—of which there are more than enough in their caseload to last several years—and to assign that investigation an old case number with an old date, citing these details in procedural documents.

It is clear that such actions constitute an abuse of power by prosecutors; however, it is impossible to challenge them, which is why the so-called law enforcement agencies are already widely using this tactic during pretrial investigations.

Nevertheless, defense attorneys and investigating judges should not ignore such abuses but should actively respond to them and assess them appropriately.

Thus, Article 214 of the Criminal Procedure Code of Ukraine provides that a pretrial investigation begins upon the entry of information into the Unified Register of Pretrial Investigations. Conducting a pretrial investigation before information is entered into the register—or without such entry—is not permitted and entails liability as established by law.

Thus, any new incident or new proceeding entered into the register after the amendments take effect—regardless of whether they are subsequently consolidated, separated, etc.—must be investigated in accordance with the new provisions, since the investigation begins at the moment of entry into the Unified Register of Pre-trial Investigations, and it is precisely at that moment that the amendments take effect.

This conclusion is confirmed by the wording “and shall apply to cases in which information regarding a criminal offense was entered into the Unified Register of Pre-trial Investigations after these amendments took effect.”

At the same time, the fact that criminal proceedings initiated before and after the Law took effect are consolidated into a single proceeding and assigned the number and date of the earlier proceeding does not mean that it must be conducted under the old rules.

Therefore, taking into account the provisions of Article 214 regarding the start date of a pretrial investigation, it can be concluded that even after consolidation, the criminal proceeding—at least with regard to the investigation of proceedings (episodes) that were added after the Law took effect—must be investigated under the new rules

However, the law does not provide for the partial application of this provision or for conducting an investigation under the same articles simultaneously under two different versions; therefore, the question arises: “Under which rules, then, should proceedings created by merging one new and one old case be investigated?”

Given that the new rules apply to cases for which information was entered into the Unified Register of Pre-trial Investigations after the amendments took effect, and considering that a proceeding entered after the Law took effect is part of the entire consolidated proceeding, the entiremerged proceedings fall under the definition of “cases in which information regarding a criminal offense was entered into the Unified Register of Pre-trial Investigations after these amendments took effect,” and therefore all such consolidated proceedings must be investigated in accordance with the rules established by the Criminal Procedure Code of Ukraine, taking into account the amendments introduced by the Law of October 10, 2017.