CommentaryJURIST Guest Columnist Iryna Dasevich is a LL.M. Candidate at the University of Pittsburgh School of Law, and has interned in the police department and the district court in Turnopil, Ukraine. In the first entry of a 14-part series from the LL.M. students of the University of Pittsburgh School of Law, Dasevich analyzes the differences between the legal systems of the US and the Ukraine, and offers insight into the Ukraine’s new Criminal Procedure Code…
In the contemporary world, a system of criminal justice performs a dual function: punishment and protecting the accused’s rights. Historically, there have been two major systems of investigation and trial, the adversarial system and the inquisitorial system. Even though the historic roots of these systems date back to the 12th century, they have significant differences. Today’s inquisitorial system is a legal system in which state officials carry out an investigation through fact discovery. Conversely, in the modern adversarial system the role of a court is primarily that of a passive decision-maker, refereeing the prosecution and the defense at trial. Although the distinction between inquisitorial and adversarial systems is not necessarily related to the distinction between civil and common law countries, it is true that most common law countries, such as the US, use the adversarial process. On the other hand, countries with civil law systems, like the Ukraine, tend use the inquisitorial process. A comparison between the US’s competitive adversarial process and the Ukraine’s one-sided inquisitorial system shows the weakness behind Ukraine’s old Criminal Procedure Code and the reasoning behind the new proposed Criminal Procedure Code.
When Ukraine became an independent country in 1991, it received a poor heritage: the former Soviet Union’s legal and judicial system. As a civil law country, the Ukraine’s legal system is composed of a codified set of rules, which taken together creates the body of law. The Criminal Procedure Code contains rules that regulate investigation, trial and post-trial proceedings, as well as rules of evidence, jurisdiction, and criminal and prosecutorial ethics. The code, originally adopted in 1960, mirrored the criminal procedure codes of other republics of the former Soviet Union. According to the old code, the main goal of the criminal process is punishment of the wrongdoing. This goal reflected the main ideology of Communism in this era: “[t]here is a crime for every person.” Even though the code has been modified several times since 1960, it is still falling far behind modern laws that offer broad protections to criminal defendants, such as the presumption of innocence, Miranda rights and protections against self-incrimination. The old Criminal Procedure Code completely eliminated the adversarial principle in investigation and trial, yet Article 16 of the code provides: “[c]ourts try cases on the basis of adversariality of proceedings.”
While defense counsel represents the defendant during the pre-trial interrogation and the trial proceeding, defense counsel cannot participate in the fact discovery and collection of evidence, leading to great disadvantages for criminal defendants in the Ukraine. The defense counsel bases their tactics solely on the evidence introduced by the prosecution. Even when the prosecution uses expert opinions, defense counsel cannot use an expert witness to rebut the testimony. During pre-trial investigation, the role of the investigator and the prosecutor is paramount because they decide which evidence to collect, which witnesses to question and which experts to use. Such a one-sided investigation explains the fact that only one percent of verdicts are not guilty in the Ukraine. Bound by the evidence that the prosecution discovers, which is usually biased against the defendant, the defense is limited in its ability to help an accused criminal offender. Thus, innocent people have been convicted of crimes they did not commit. In countries with an adversarial process, like the US, defense counsel actively participates in all stages of the criminal investigation and trial. Such a system provides thorough and full discovery in each case, and provides the defendant with necessary protection against the prosecution’s bias. Evidence of its effectiveness is the fact that 25 percent of all verdicts are not guilty.
Another problem with the criminal justice system in the Ukraine is the absence of the institution of a jury in all court proceedings, which functions as a democratic society’s check on the administration of justice. Article 15 of the code provides: “[j]ustice in criminal proceedings is administered only by the court.” Such a system of justice gives too much discretion to the judge in trial proceedings. According to the code, a judge can return a case for further investigation if he determines that there is not enough evidence to proceed with trial. The judge examines the evidence and is not bound by the opinion of the defense or prosecution regarding the evidence. Further, the judge engages in questioning of witnesses and the defendant. In the US, all criminal trials are conducted in the presence of a jury, unless the defendant waives his right to an impartial jury trial. The US system shifts the role of a fact-finder to the jury and vests the role of legal expert in the judge, providing better protection of individuals’ rights.
An additional issue with the inquisitorial system of investigation in the Ukraine, is the use of torture as a method of obtaining defendant testimony and guilty pleas. Human Rights Watch has continued to emphasize that torture remains a serious problem in the Ukraine. In a letter to the UN Committee against Torture Review of Ukraine it stated:
Another systemic factor that contributes to police abuse in Ukraine are the periodic “work plans,” which police reportedly must fulfill, creating an incentive for police to engage in torture or other abusive tactics to extract confessions from criminal suspects. In its 2002 review of Ukraine, the Committee [UN Committee against Torture] expressed concern about “the numerous convictions based on confessions” in the country, as well as the fact that the “number of solved crimes” was among the “criteria for the promotion of investigators.” The Committee concluded that this factor “can lead to torture and ill-treatment of detainees or suspects to force them to ‘confess’.”
The one-sided nature of pre-trial investigation in the Ukraine gives more incentives to the investigating officials to engage in unlawful activities in order to obtain the necessary testimony to support guilty pleas. This problem is especially significant when compared to the US system, where 96 percent of all criminal cases are resolved by plea bargains between the prosecution and the defendant. In such a scheme, both sides receive a good deal: the defendant can plead guilty to a lesser offense and the prosecution does not need to take a case to trial. Thus, both sides are interested in reaching a consensus.
The Ukraine’s Criminal Procedure Code was clearly flawed, and the new revisions are certainly warranted. Officials have expressed their concern with the code in various meetings and conferences between the Ukraine and other European countries. The new President Victor Yanukovych has established a special commission in order to create a new code of criminal procedure. The working commission actively interacted with different European institutions and various international governmental organizations and officials in developing the new rules of criminal procedure. The group was composed of lawmakers, headed by a presidential advisor, and worked on the new code for a year and a half. The new code was confirmed by the Council of Europe twice and the president introduced it to the parliament of the Ukraine, Verhovna Rada, on February 9, 2012. The new draft code was adopted at the first reading, but returned to the same commission for further development to consider proposed changes from the Verhovna Rada.
According to the draft of the new code, the goal of criminal procedure is a protection of the rights of individuals, not merely punishment. The doctrine of “presumption of innocence” will be incorporated and if a person’s guilt is not proven, then that person must be acquitted. This will be achieved by eliminating the provision that allows for judicial discretion in returning a case for more investigation if there is not enough evidence to proceed with trial. Also, establishing jury trials will help achieve objectivity; the new code will allow a person accused of committing a crime punishable by life imprisonment to request consideration of his case by a jury trial. Another important change is the optimization of the system through preventive measures. The new code will introduce new methods, such as home arrest and bail, which will save the government money and will be less harmful to individuals. The new code also provides the possibility of a plea bargain between the prosecutor and the accused on the recognition of guilt and a reconciliation agreement between the victim and the accused.
The new draft of the Criminal Procedure Code is a significant step forward for the Ukrainian legal system. New democratic changes in various areas of the law will help Ukraine integrate into the European community with greater confidence; a step that is vital for the Ukrainian economy and society. Though serious preparation of the document must occur for its second reading, the new progressive legislation will enable Ukraine to break its ties with its Soviet past, and will help it to continue on its unstable, yet promising, road to democracy.
Iryna Dasevich received her bachelor’s and master’s degrees in law from Yaroslav the Wise National Law Academy in Kharkiv, Ukraine, in 2006. Dasevich interned at the police department, district court, city notary and city magistrate’s offices in Turnopil, Ukraine. She also worked in a legal clinic, providing free legal services to elderly citizens.
Suggested citation: Iryna Dasevich, Criminal Justice in the Ukraine: From Inquisition to Fair Competition, JURIST – Dateline, Apr. 3, 2012, http://jurist.org/dateline/2012/03/iryna-dasevich-ukraine-justice.php.
This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
