Amendments to criminal law and procedure during martial law from July to October 2022

Provisions on conducting a pre-trial investigation during martial law have been amended.

On 25.08.2022, the law on amending Articles 331 and 615 of the CPC of Ukraine came into force.

• The procedure for considering the extension of custody has been amended.

Henceforth, when a court ruling on custody expires during martial law and certain circumstances objectively preclude the court from considering the issue of the extension of custody, the custody shall be extended until the court resolves this issue, but not more than for two months.

At the same time, the validity term of the ruling of the investigating judge on custody in these circumstances may be extended up to one month by the chief prosecutor of the prosecutor’s office at the request of the public prosecutor or the investigator upon the approval of the public prosecutor. In this case, the custody may be extended repeatedly within the term of the pre-trial investigation.

The public prosecutor shall immediately notify the superior public prosecutor and the court of the decision made on this matter and provide them with copies of relevant documents no later than 10 days from the date of notification. If it is impossible to conduct a preparatory court session, the ruling of the investigative judge or the superior public prosecutor on custody shall be extended until the court resolves this issue in the preparatory court session, but not more than for two months.

• The term for serving a written notice of suspicion has been reduced.

Henceforth, during martial law and in case certain circumstances objectively preclude the public pre-trial investigative agency from serving a written notice of suspicion to a person within 24 hours from the moment of his/her detention, the term for such procedural action may be extended up to 48 hours. Notably, the previous edition of the CPC of Ukraine established a 72-hours term for this procedural action.

If a person is not served with a written notice of suspicion within 48 hours from the moment of detention, such person shall be immediately released.

• The procedure for consideration of a motion to impose a measure of restraint on a detained person has been amended.

Thus, during martial law and in case certain circumstances objectively preclude the investigating judge from considering the motion to impose a measure of restraint on a detained person, the motion shall be considered with the use of available technical equipment of video communication to ensure the detained person`s remote participation.

If the detained person cannot be brought before the investigating judge or court within 72 hours to consider the motion to impose a measure of restraint on him/her or it is impossible to ensure his/her remote participation during the consideration of the such motion, the detained person shall be immediately released.

•  The powers of the chief prosecutor of the prosecutor’s office to perform certain functions of the investigative judge have been reduced.

In comparison to the previous edition of Art. 615 of the CPC of Ukraine, the powers of the chief prosecutor of the prosecutor’s office have been reduced. Henceforth, the chief prosecutor of the prosecutor’s office is not authorized to impose custody as a measure of restraint for up to 30 days, as it had been before in exceptional cases.

However, the chief prosecutor of the prosecutor’s office is still authorized to decide on certain issues in case certain circumstances objectively preclude the investigating judge from resolving them. It applies to:

• deciding on the issue of compulsory attendance (Art. 140 of the CPC of Ukraine);
• considering motions for provisional access to items and documents (Art. 163, 164 of the CPC of Ukraine);
• deciding on the attachment of property (Art. 170, 173 of the CPC of Ukraine);
• conducting interrogation or identification in the mode of video conference during the pre-trial investigation (Art. 232 of the CPC of Ukraine);
• deciding on the permission to conduct a search of a person’s home or other property (Article 234 of the CPC of Ukraine);
• deciding on obtaining samples for examination (Article 245 of the CPC of Ukraine);
• considering motions for permission to conduct covert investigative (detective) actions (Article 250 of the CPC of Ukraine);
• considering motions to extend the pre-trial investigation within the time limits specified in subparagraphs 2, and 3 of part 3 of Article 294 of the CPC of Ukraine (Art. 294 of the CPC of Ukraine).

The law also stipulates that decisions on these issues shall be taken in the form of resolutions and must contain proper justification of the legitimacy of exercising the investigating judge powers by the chief prosecutor of the prosecutor’s office. In addition, the chief prosecutor of the prosecutor’s office in these circumstances is obliged to ensure the rights of the person on whom custody has been imposed, including verification of the legality of such rights deprivation.

• Complaints against any decisions, actions, or omissions of the public prosecutor or investigator exercising the authority under Art. 615 CPC of Ukraine may be challenged in court.

Art. 303 of the CPC of Ukraine limits the scope of decisions, actions, or omissions of the investigator or public prosecutor that may be challenged in court during the pre-trial investigation.

After the extension of the powers of law enforcement officers regarding the specifics of pre-trial investigation under martial law, there is a high risk of abuse of such powers due to the lack of judicial control at the pre-trial investigation stage.

In this context, it seems appropriate to amend Art. 615 of the CPC of Ukraine with provisions regulating the procedure for challenging in court the decision, action, or omission of the investigator or prosecutor exercising the powers defined in this article.

 Thus, these complaints shall be considered by the investigating judge of the court within the territorial jurisdiction of which the pre-trial investigation is conducted. In case certain circumstances objectively preclude the relevant court from administering justice, these complaints shall be considered by the geographically nearest court that can administer justice, or by another court determined in the manner prescribed by law.

• The list of participants in criminal proceedings has been expanded and the procedure for closing criminal proceedings in respect of a new participant has been established.

The list of participants in criminal proceedings on the part of the defense has been amended with a person in respect of whom sufficient evidence has been collected to notify him/her of suspicion of committing a criminal offense, but he/she has not been notified due to his/her death.

Also, part 5 of Art. 284 of the CPC of Ukraine has been amended with the grounds for closing the criminal proceedings due to the death of such a person.

Moreover, in the pre-trial investigation, the public prosecutor at first must send a written notice to one of the close relatives or a family member, and/or the deceased’s defense counsel informing them about the possibility of closing the criminal proceedings due to the above-mentioned circumstances and explain the right to file a motion to disagree with the closure of the criminal proceedings. Only after that, the public prosecutor may render a decision to close the criminal proceedings due to the above-mentioned circumstances.

Besides, Art. 303 of the CPC of Ukraine has been amended with the opportunity to challenge the resolution of the public prosecutor on this matter before the investigating judge in the pre-trial investigation.

During the court proceedings, before rendering a decision to close the criminal proceedings, the court shall send a copy of the public prosecutor’s motion on closing the criminal proceedings to one of the close relatives or family members and/or the deceased’s defense counsel and explain the right to file a motion to disagree with the closure of the criminal proceedings due to the above-mentioned circumstances. The criminal proceedings shall be closed if no motion to disagree with the closure of criminal proceedings is submitted within 10 days.

Close relatives, family members, and/or the deceased’s lawyer may disagree with the closure of the criminal proceedings because further pre-trial investigation or court proceedings may be necessary to vindicate the deceased.

• The procedure for conducting an examination of a person has been amended.

Under Ukrainian law the pre-trial investigation is divided into inquiry and pre-trial investigation and depending on the commission of a criminal offense or crime it is conducted by the inquiry officer or investigator.

Henceforth, the examination may also be conducted based on the resolution of the inquiry officer.

Besides, the examination may now be conducted not only to detect traces of a criminal offense on the body but also on the clothes of a witness, suspect or victim and to remove them or identify special marks, if this does not require a forensic medical examination.

Before the examination, the person is offered to voluntarily undergo the examination based on the resolution of the inquiry officer, investigator, or public prosecutor. In case of refusal, it is conducted compulsorily only based on the public prosecutor’s resolution. If necessary, the examination may be conducted with the participation of a forensic medical expert, doctor, or specialist.

Furthermore, contrary to the previous edition of the article, a copy of the examination record is provided to the person after the examination regardless of whether the examination has been voluntary or compulsory.

To servicemen suspected of committing certain crimes during martial law shall only be applied custody as a measure of restraint.

On 10.09.2022, the law on imposing measures of restraint on servicemen who committed war crimes during martial law came into force. This applies to the servicemen suspected of the following crimes under Section XIX of the Criminal Code of Ukraine:

• disobedience (Art. 402 of the Criminal Code of Ukraine);
• failure to comply with orders (Art.403 of the Criminal Code of Ukraine);
• resistance to commander or coercion of a commander into breaching the official duties (Art. 404 of the Criminal Code of Ukraine);
• threats or violence against a commander (Art. 405 of the Criminal Code of Ukraine);
• absence without leave from a military unit or place of service (Art. 407 of the Criminal Code of Ukraine);
• desertion (Art. 408 of the Criminal Code of Ukraine);
• unauthorized leaving of a battlefield or refusal to use weapons (Art. 429 of the Criminal Code of Ukraine).

The procedure for the exchange of a suspect, accused, or convict as a prisoner of war has been established.

On 19.08.2022, the law on amending the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine to establish the procedure for the exchange of persons as prisoners of war came into force.

For the exchange of a person as a prisoner of war, the authorized body decides on his transfer for exchange.

This decision is the basis for the cancellation of the measure of restraint applied to a person. In this case, the person is immediately released and transferred under the supervision of the authorized body. Further detention and measures for the treatment of a released suspect, accused or convict are conducted under the procedure established by the Cabinet of Ministers of Ukraine for prisoners of war.

In addition, the decision to transfer the suspect for exchange as a prisoner of war is the basis for suspending the pre-trial investigation in criminal proceedings. The decision to suspend the pre-trial investigation on these grounds cannot be challenged.

If the exchange of a person as a prisoner of war has taken place, a special pre-trial investigation may be conducted in respect of such a person.

If the authorized body decides to transfer the accused for exchange as a prisoner of war during the trial and the accused gives his written consent to the exchange, the court shall suspend the court proceedings against such an accused. At the same time, the court continues the proceedings against the other accused, if it is conducted against several persons. If the exchange takes place, the trial against such accused may be conducted in his absence (in absentia).

There is also a new ground for the discharge of a convict from punishment and from serving it – the decision of the authorized body to transfer the convict for exchange as a prisoner of war. However, if the exchange of such a convict does not occur, the court at the request of the public prosecutor decides to send the convict discharged from punishment due to his exchange as a prisoner of war for further serving the sentence.

A cooperation mechanism has been established between the competent authorities of Ukraine and the International Criminal Court (ICC).

On 20.05.2022, amendments to Articles 183 and 208 of the Criminal Procedure Code of Ukraine came into force. Besides, a new section on cooperation with the ICC has been appended to the Code.

Henceforth, custody without determining the amount of bail may also be applied to a person if the ICC requests for his/her temporary arrest or arrest and transfer, in the manner and on the grounds under the CPC of Ukraine.

A detained person who is on the ICC wanted list, upon his/her consent to be transferred to the ICC, may be extradited under a simplified procedure. The authorized official who detains such a person must explain to him/her the right to give consent to the transfer to the ICC under a simplified procedure.

Also, the Criminal Procedure Code of Ukraine establishes:

• authorities (during the pre-trial investigation and court proceedings -the Office of the Prosecutor General, and during the execution of sentences or other decisions of the ICC – the Ministry of Justice of Ukraine), the scope and procedure for cooperation with the ICC;
• grounds for consultations of the central authorities of Ukraine with the ICC;
• specific features and consequences of the transfer or referral of criminal proceedings in the framework of cooperation with the ICC;
• specific features of ensuring the preservation of evidence;
• performance of the ICC functions in Ukraine;
• the procedure, grounds, and specific features of the temporary transfer of a person to the ICC for procedural actions;
• the procedure for the execution of the ICC request for cooperation and the ICC decisions;
• costs related to the execution of the ICC requests for cooperation;
• conditions for submitting a request (application) to the ICC by the central authority of Ukraine and requirements for its content;
• rights of the person in respect of whom the ICC has filed a request for cooperation;
• specific features of detention of persons wanted by the ICC, their arrest, and transfer to the ICC;
• the procedure and conditions for the transfer of a person to the ICC under a simplified procedure;
• the procedure for the temporary release of a person to whom custody has been applied;
• arrangement of the transfer of a person to the ICC;
• confidentiality and protection of information concerning the national security of Ukraine during cooperation with the ICC.

Until the day the Rome Statute comes into force for Ukraine, the legislative amendments shall be applied under Ukraine’s declaration of acceptance of the ICC’s jurisdiction, and the issue of enforcement of the ICC’s decision on fine and/or confiscation shall be decided in the manner prescribed for the enforcement of a foreign court sentence.

Moreover, on 01.10.2022, a law on amending the procedure for the ICC to perform its functions in Ukraine came into force. Henceforth, procedural actions in Ukraine at the request of the ICC may be conducted not only by the ICC Prosecutor but also by persons authorized by him/her and mentioned in a request of the ICC. However, the provision contains a reservation regarding actions that require the consent of the prosecutor or the permission of the investigating judge or court.

In addition, henceforth, the ICC’s authorized officers shall conduct procedural actions in Ukraine only with the consent of the Prosecutor General.