The "Mask Show Stop-2" law did not live up to expectations; we can only hope for "Mask Show Stop-3" — Elvira Lazarenko, attorney and associate partner at BARRISTERS, LLC

The so-called “Mask Show Stop-2” law, which originally took effect on November 4, 2018, was intended to serve as a logical continuation of the previous “Mask Show Stop” law, aimed at strengthening the legal protection of participants in criminal proceedings, including by increasing the liability of law enforcement officers for improper performance of their duties.

It should be noted that the text of the adopted “Mask-Show Stop-2” law differs significantly from the proposed Bill No. 8490 of June 18, 2018, which was intended to amend the Civil Code of Ukraine, the Criminal Procedure Code of Ukraine, as well as the Law of Ukraine “On the Procedure for Compensating Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational-Investigative Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office, and the Court.”

Thus, the bill provided for amending the Criminal Procedure Code of Ukraine with a provision stipulating that if, following the consideration of a complaint, an investigating judge issues a ruling to overturn a decision by an investigator or prosecutor, revoke a notice of suspicion, or order the suspension of such actions, that ruling must be forwarded to the head of the agency to which the investigator or prosecutor belongs, so that an internal investigation may be conducted and a decision made regarding holding the individual accountable.

In turn, the Law of Ukraine “On the Procedure for Compensating Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational-Investigative Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office, and the courts” was intended to be amended to include as a basis for a person’s right to compensation for damages a court decision upholding their complaint against a decision, action, or inaction of an investigator or prosecutor (in accordance with the Code of Criminal Procedure).

Finally, amendments to the Civil Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational-Investigative Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office, and the courts,” provided for the possibility for the state, in the event that it compensates from the state budget for damages caused by law enforcement officials, to recover such damages from them by way of recourse if their actions are found to constitute a criminal offense or a disciplinary offense.

However, according to the published version of the “Mask Show Stop-2” law, regarding the liability of law enforcement officers for unlawful actions, only those amendments remained in force which amend Article 130 of the Criminal Procedure Code of Ukraine by adding Part 2 regarding the state’s right to file a recourse claim against law enforcement officers for reimbursement of damages paid from the state budget if a criminal offense or a disciplinary offense.

Thus, the expectations many had placed on the “Mask Show Stop-2” law were not met, since these amendments to the Code of Criminal Procedure do not serve as a mechanism to protect businesses from unlawful actions by law enforcement officers, but merely expand the circumstances under which the state may exercise its right to seek recourse against the person who caused such damages.

It is clear that there remains a pressing need for further legislative improvements to the mechanism for holding law enforcement officers accountable for their unlawful actions and for obtaining appropriate compensation. We can only hope that the “Mask Show Stop-3” initiative will address the existing legislative gaps.

Elvira Lazarenko, Associate Partner at Barristers, LLC.