Investigation put on hold:
Investigators at the Public Prosecutor’s offices and national police worry about further slowdown in their work as a result of the judicial reform
Why the judicial reform slows down investigation for Public Prosecutor's offices and police
Investigators are the second group of people after judges to fully experience the changes introduced by the judicial reform. This is mainly due to amendments made to a number of legal codes last year. All of them were based on one rather appropriate concept: ensuring compliance with the law during the investigation period. However, as noted by law enforcement officers who have spoken to The Ukrainian Week, the novelties have caused a number of problems.
The first is the mandatory audio recording of court sessions, including the ones where investigators request permits for searches, seizure of documents etc. According to our sources, such sessions were previously often of purely formal nature – the judge's decision was influenced by how necessary certain actions were. Now, a full judicial examination should take place complete with arguments from the investigator, documents and evidence. The judge must study the documents and make a decision. There must be an audio recording of all of this. Investigators worry that, given the insufficient staff of judges in Ukraine, they can only review a limited amount of requests in one day.
"There are not enough judges. And the current ones are already busy. Take the Pechersk District Court in Kyiv. It covers around twelve investigative entities, from the Pechersk District Police Department to the Prosecutor General's Office which has eight investigative units. The court used to receive 200-300 requests for permissions of temporary access to premises or seizures a day. After the introduction of mandatory audio recordings, only 100 requests can be processed per day. If 200 are received, then there is an informal rule by which these requests are carried forward to the following day. If another 200 come in the next day, they will be postponed until even further. The amount of requests complied by the end of January would already take a week to consider. Judging by the future changes, it will only get longer. This will negatively affect the timing of investigations," says Serhiy Horbatiuk, head of the Special Investigation Department at the Prosecutor General's Office. The prosecutors in his department currently retain their investigation powers, unlike other prosecutors, in order to complete investigation of the Maidan cases. However, the lack of investigative judges could adversely affect the process.
Rank-and-file investigators are not enthusiastic about the waiting lists either. "More than one prosecutor files a request each day. From there, everything depends on the availability of the court. In the Shevchenko or Pechersk District, the courts do not have time to look at the requests. So the hearings are postponed until the following days. As a result, certain investigative actions lose their relevance," a Kyiv National Police investigator told The Ukrainian Week off the record.
He added that on March 15 a number of changes will come into force that could significantly increase the size of existing queues. "From March 15, all expert evaluations must be approved by the court. If a person, for example, is found dead on the street, we have to prepare a request for forensic tests, take it to court, the judge should examine the issue on the same day and, if a positive decision is made, give the expert permission to do their work. However, we have the waiting queues in mind. Previously, this issue was solved by the investigator: he made an entry in the Unified Register of Pre-trial Investigations and issued a decree scheduling an expert examination. Now everything is changing. In addition, we are obliged to conduct expert examinations in all cases of bodily harm. Believe me, there are a lot of them every day in Ukraine from domestic conflicts and disorderly behaviour. A problem will arise when we’ll need a permission to conduct an examination from court and there are queues for two weeks. The victims don't care about changes to the codes – they want results. Instead of working, we’ll have to wait with 20 more investigators like yourself in the corridor of the court. We'll spend more time queuing than actually working," the investigator complains.
The second change that is causing problems is the mandatory video recording of searches. The investigators we have spoken to mostly approve of these changes, but complain about the lack of funds and necessary equipment: video cameras, storage media, etc. They add that the recording itself can be problematic as the requirements for it are not clearly spelled out: in which conditions will the video be recognised as inadmissible evidence? What if the recording is interrupted? What if it is interrupted and ends up coming from several cameras? The first searches revealed a problem: the investigators do not have enough memory cards, so recordings were sometimes completed on mobile phones. What if the witnesses are not always on the video?
Petro Poroshenko's recent decree on the abolition of local courts to replace them with district courts adds to the concerns. Investigators worry about low-profile cases which the original courts have taken long relatively long to hear. With the upcoming change, the unfinished cases will have to go to the new courts. According to the rules,
MANDATORY AUDIO RECORDING OF COURT SESSIONS, INCLUDING THE ONES WHERE INVESTIGATORS REQUEST PERMITS FOR SEARCHES, SEIZURE OF DOCUMENTS ETC WILL BE REQUIRED. GIVEN THE INSUFFICIENT STAFF OF JUDGES IN UKRAINE, THEY CAN ONLY REVIEW A LIMITED AMOUNT OF REQUESTS IN ONE DAY
the process of reviewing those cases should then start anew.
Take the Pechersk Court. Moderately serious cases can take more than three years there and hearings are held once every six months. If the cases are reassigned, the court has to start all over again. In addition, the rights of the victim and the suspects are violated. After all, not only the investigation, but also the trial should take place within a reasonable timeframe," the National Police investigator complains.
Another worrying factor is the notorious recent amendment by MP Andriy Lozovyi. It introduces shorter terms for pre-trial investigations after which the case should be closed, unless the investigation yields results. Law enforcers complain that the aforementioned queues and deficit of judges will only give them more headaches.
"Starting from March 15, the deadlines for investigations will change. The investigator will have two months to work from the moment a case is registered in the database. The public prosecutor can extend the investigation for another month. The extension issue has then to be resolved through courts. Here’s what we will have: an investigator applies to court to extend the investigation period 10 days before the deadline. The court has a waiting list of several weeks, so the investigator does not meet the deadline. In that case, the investigator must close the case in line with the Code of Criminal Procedure. This means that investigators have to queue for the extension through court on day one of the investigation. Then, they also have to get on waiting lists for other permissions, such as expert examination. It turns into an avalanche,” Horbatiuk remarks.
Another series of changes introduced by the judicial reform will also come into force on March 15. One is the possibility to appeal against suspicion notice after two months of an investigation. Another one is the opportunity to appeal against a decision to suspend pre-trial investigation. Investigators see this as a dangerous change: if the court rules in favour of the appealing side, the duration of suspension is included in the timeframe allowed for the investigation. For example, an investigation in a complex case took six months and was then suspended for three years. A court ruling satisfying an appeal against this can add these periods together. The total timeframe allowed for the investigation is three and a half years, so the investigator is obliged to close proceedings after it.
The legislature has prescribed that the new provisions of the Code of Criminal Procedure will only apply to proceedings registered after this date. The old version of the code will remain in force for older proceedings, although Article 5 states that the current version of the code is valid for all proceedings. The legislature has created conditions under which two codes will be in force at the same time. This may also complicate the work of investigators.
"I am convinced that investigators will register thousands of cases before March 15. Just in case, so as not to lose their proceedings. That’s what the Military Prosecutor's Office once did. Actually, if such actions are not aimed at persecution, they can be interpreted as an attempt to save ongoing investigations," Horbatiuk comments.
The Ukrainian Week's sources also said that as part of the reform, investigating authorities should send their requests to the address where a legal entity is registered. In the case of the National Police, this would be the Main Directorate of the Kyiv National Police. Investigators at district-level police stations note that their stations are not legal entities. So they are tied to the Main Directorate.
Unless there are further changes or clarifications, investigators will be forced to send requests from all Kyiv districts to a court located in the same district as the Main Directorate. This could lead to an even greater burden on judges. In addition, both the police and courts are still not fully aware of how the paperwork will be organised.
An electronic documentation system could be helpful in solving this issue and is perceived approvingly by investigators. This prevents a great amount of bureaucracy on paper and the constant copying of materials. But even here the question arises: who will provide storage for the files on these criminal proceedings? Which servers will store the information? How secured will it be from external interference and who will be responsible for protecting the data? Who will be charged with organising such a system? Investigators are yet to find answers to these questions.