Criminal procedure

Criminal procedure. In Kyivan Rus’ the rules of criminal procedure were included in the material law. The process had a public character, and, as a rule, the procedure was started by the injured party. For more serious crimes, however, public accusation was soon introduced. The trial, which was public and oral, was often preceded by a preliminary investigation.

The period of the Lithuanian-Ruthenian state marked further development of the criminal process towards publicity; cases of official initiation of a criminal action became more frequent. Preliminary investigation was usually the basis for the trial. ‘Doing justice’ was mentioned as the task of the court action. The trial was public but the sentence was considered at a closed session. In certain criminal cases a procedure called ‘scrutiny’ was practiced; it was similar to the inquisition in Western Europe, though not as strict. Witnesses were interrogated at the site of the crime in the absence of the accused. The minutes of such inquiry served as the principal evidence on which the decision was based. In Galicia, then under Poland, the traditional court procedure was replaced (after 1434) by the Polish law.

During the period of the Hetman state, under Russian influence the procedure became more formalistic and complicated, mainly because the judicial and administrative functions were united in the hands of the Cossack starshyna. The Zaporozhian Sich, however, retained a more liberal, democratic, and less-formalistic procedure. It was public as a principle; often the Cossacks themselves participated in the execution of punishments.

On the Ukrainian territories that came under the domination of the Russian Empire the procedural traditions of the Lithuanian Statute were soon (1723) replaced by strict Russian laws. A typical inquisitorial practice was introduced, with the functions of investigation, accusation, and sentencing united in the hands of the same court organ and with torture used as a means of extracting evidence. The inquisitorial process was abolished in 1864; open and oral trial, as well as the jury, were introduced on the Western pattern. Soon, however, these liberal features were abolished (1887) or restricted.

In Galicia and Bukovyna, under Austria from the partition of Poland in 1772, criminal procedure underwent progressively modernizing reforms, which culminated in the Code of Criminal Procedure of 1873. The functions of accusation, trial, and sentencing were strictly separated, with a state attorney acting as the prosecuting agent; the trial was open, oral, direct, and aimed at establishing material truth; a jury gave verdicts in more serious criminal cases.

During the period of the Ukrainian struggle for independence (1917–20) no reforms of criminal procedure were undertaken: the rules of the former empires, Russia and Austria-Hungary, remained in effect, with necessary practical amendments.

In Western Ukraine, again under Polish domination (1919–39), the rules of criminal procedure of Austria and Russia were in effect until 1928, after which the new Polish Code of Criminal Procedure was enacted. It was based on a strict separation of the functions of accusation (in the hands of the prosecutor) and sentencing (by an independent court) and on an open and oral trial that sought to establish material truth. Trial by jury was in effect until it was abolished in 1938.

In the Ukrainian Soviet Socialist Republic the established criminal procedure was the result of 40 years of progressive development, which had started when former tsarist Russian laws were declared void by the Communist government. The Decree on Courts was enacted in 1917 by the Council of People's Commissars of the RSFSR and made a mandatory model for Ukraine. Accordingly, the Ukrainian Decree on the People’s Courts of 4 January 1918 and ‘On the people’s courts and revolutionary tribunals’ of 14 February 1919 laid the foundation for the new court procedures. These decrees were followed by the codes of criminal procedure of 1922 and 1927 (see Criminal Procedure Code of the Ukrainian SSR). The new code was enacted by the Supreme Soviet of the Ukrainian SSR on 8 December 1961, in compliance with the Foundations of Criminal Procedure of the USSR and the Constituent Republics of 25 December 1958. Allegedly, the code was based on ‘socialist democratic principles.’ Some theoretically progressive and liberal provisions were in fact included in the code; they were in contrast, however, with the prevailing practice of the Soviet administration of criminal justice. Thus, the code (as well as the constitution) stated that the court should be the only agency entrusted with the trial of criminal cases. Yet the power granted in 1934 to the ‘special boards’ of the NKVD (later MVD) to apply punitive measures to ‘socially dangerous’ persons had never been repealed; also, certain other agencies (eg, the Comrades’ courts) were given some punitive powers.

The code provided for an ‘open court,’ but most of the cases that were political in nature were being tried behind closed doors. The trial was supposed to be conducted in the Ukrainian language, but, in practice, the Russian language was used more often. The accused was guaranteed the right to counsel, but not during the preliminary investigation, when he/she was interrogated by organs of the militia, state security, and other agencies, and when, as practice showed, most ‘confessions’ were obtained. The Western idea that a person is presumed innocent until proven guilty was foreign to the code: it was regarded as an ‘obsolete dogma of bourgeois law.’ Neither the institution of habeas corpus nor any other legal measure for obtaining relief from illegal detention was provided by the code. The prosecutor, who represented the Communist Party policy in court, was not only the sole master of the preliminary investigation, but was, in fact, granted a dominant role during the trial. He/she ordered the preliminary arrest and could extend it up to nine months. The code allowed appeals to a higher court against the decisions of a lower court. (See also Court system.)

Yurii Starosolsky

[This part of the article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]

Criminal procedure in Ukraine after 1991.

The Criminal Procedure Code of Ukraine (CPCU), which was adopted on 13 April 2012 and came into force on 20 November 2012, regulates criminal procedural relations at all stages of criminal proceedings. Other sources of law regulating criminal proceedings in Ukraine include the Constitution of Ukraine; international acts (treaties), the binding nature of which has been approved by the Supreme Council of Ukraine; other laws regulating certain issues of criminal proceedings such as ‘On the Judiciary and the Status of Judges,’ ‘On the Constitutional Court of Ukraine,’ ‘On the Prosecutor’s Office,’ ‘On the National Police,’ ‘On the Security Service of Ukraine,’ ‘On the National Anti-Corruption Bureau of Ukraine,’ ‘On Free Legal Aid,’ ‘On Forensic Examination,’ and others; bylaws such as acts of the President of Ukraine, the Cabinet of Ministers of Ukraine, or the Office of the Prosecutor General; as well as judicial practice of courts (legal positions of the Constitutional Court of Ukraine, legal positions of the European Court of Human Rights, legal positions of the Supreme Court of Ukraine, and legal provisions formulated in resolutions of the Plenum of the Supreme Court of Ukraine).

According to Article 2 of CPCU, the aim of criminal procedure is the protection of individuals, society, and the state from criminal offenses; the protection of rights, freedoms, and legitimate interests of participants in criminal proceedings; as well as the insurance of expeditious, comprehensive, and impartial investigation and trial so that every person who committed a criminal offense be prosecuted in proportion to his/her guilt; that no innocent person be accused or convicted; that no person be subjected to ungrounded procedural compulsion; and that an appropriate legal procedure be applied to every party to criminal proceedings. Ukraine’s mixed criminal process combines elements of the inquisitorial and adversarial types of proceedings.

The Criminal Procedure Code of Ukraine (CPCU) differentiates the following stages of criminal proceedings: 1) pre-trial investigation; 2) preparatory proceedings; 3) court proceedings; 4) appeal proceedings; 5) cassation proceedings; 6) proceedings on newly discovered or exceptional circumstances; 7) execution of court decisions. The participants involved in criminal proceedings of Ukraine include a judge, parties to criminal proceedings, and other participants. The judge is a representative of a state body entrusted with the function of justice by the Constitution of Ukraine. The parties to the criminal proceedings include the prosecution and the defense. Representatives of the prosecution include an investigator, head of the pre-trial investigation body, prosecutor, as well as the victim, his/her representative, and legal representative in special cases established by the CPCU. Representatives of the defense include a suspect, an accused (defendant), a convicted, a person with respect to whom the application of coercive measures of a medical or educational nature may be applied or a person for whom the issue of their application has been resolved, and their defenders and legal representatives.

According to legislation, other participants of criminal proceedings, who play supporting roles in the proceedings, include an applicant, witness and his/her lawyer, mortgagor, personal guarantor, translator, expert, specialist, probation officer, court clerk, court administrator, official responsible for the detention, victim and his/her representative and legal representative, civil plaintiff and his/her representative and legal representative, civil defendant and his/her representative, representative of the legal entity in respect to which the proceedings are conducted, third party whose property is under arrest, another person whose rights or legitimate interests are being limited during the pre-trial investigation, and person in respect to whom the issue of extradition to a foreign state is being considered.

The underlying principles of criminal proceedings in Ukraine include the rule of law; legitimacy; equality before law and court; respect for human dignity; ensuring the right of personal liberty and security; inviolability of home or any other possession of a person; confidentiality of communication; non-interference in private life; security of the ownership right; presumption of innocence and conclusive proof of guilt; freedom from self-incrimination and the right to not testify against one’s close relatives and family members; prohibition of double jeopardy; ensuring the right to defense; access to justice and the binding nature of court rulings; adversarial nature of parties, freedom to present their evidence to the court and prove the preponderance of this evidence before the court; directness of examination of testimonies, objects and documents; ensuring the right to challenge procedural decision, actions, or inactivity; publicity of criminal proceedings; publicity and openness of judicial proceedings and their full recording using technical means; reasonable time for criminal proceedings; and language of criminal proceedings (and involving an interpreter if required).

Kateryna Shunevych

[This part of the article was written in 2022.]

Konstytutsiia Ukraïny [28 June 1996]:к/96-вр#Text
Kryminal'nyi kodeks Ukraïny [5 April 2001]:
Kryminal'nyi protsesual'nyi kodeks Ukraïny [13 April 2012]:
Nor, V.; Bobechko, N. et al. Kryminal'nyi protses Ukraïny: Akademichnyi kurs, vol 1 (Lviv 2021)

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