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

The Ukrainian Week - - CON­TENTS - Svi­atoslav Ptit­syn

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.

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