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Responses to Information Requests (RIRs) cite publicly accessible information available at the time of publication and within time constraints. A list of references and additional sources consulted are included in each RIR. Sources cited are considered the most current information available as of the date of the RIR.            

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2 October 2015

UKR105304.E

Ukraine: Articles 303 to 308 of the Criminal Procedure Code of Ukraine, both before and after the new Code came into force in November 2012; implementation of the Criminal Procedure Code by police in the Chernihiv and Kyiv regions (2006-July 2014)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Articles 303 to 308 of the Ukrainian Criminal Procedure Code
1.1 1960 Code

According to the website of the Ukrainian Supreme Council (Verkhovna Rada), the Ukrainian Criminal Procedure Code of 1960 was valid until 19 November 2012 (Ukraine n.d.a). Sources indicate that a new Criminal Procedure Code was introduced in the Ukraine in April 2012 (AI Apr. 2013; Lawyer 28 Sept. 2015) and came into force on 20 November 2012 (ibid.; AI Apr. 2013; The Ukrainian Week 31 Mar. 2013).

Articles 303 to 308 of the 1960 Code, last amended in 2012, are titled as follows:

[translation]

  • Article 303. Examination of a witness
  • Article 304. Additional examination or re-examination of a witness
  • Article 305. Right of the witness to use notes
  • Article 306. Witness' testimonies read in court
  • Articles 307. Examination of an underage witness
  • Article 308. Examination of the victim (Ukraine 1960, Art. 303-308)

A translation of these articles is attached to this Response (Attachment 1).

1.1.1 Amendments Made Between October 2006 and November 2012

According to the website of the Ukrainian Supreme Council, Article 303 was amended as follows:

  • pursuant to Act 2395-VI (2395-17) of 1 July 2010,

    • [translation]

    to complete part three with the following words 'as well as the defence counsel invited by him/her';

    in part six, to replace the words 'or the witness him/herself' with the words 'the witness him/herself or the defence counsel invited by him/her'. (Ukraine 2010)

  • pursuant to Act 3388 (3388-17) of 19 May 2011, [translation]

    "in part three of article 303, to remove the words 'and the people’s jurors'"

    (ibid. 2011).

1.2 New 2012 Code

The website of the Ukrainian Supreme Council provides a link to the 2012 Criminal Procedure Code of Ukraine (Ukraine n.d.a). Chapter 26 of the new Code, which includes Articles 303 to 308, contains provisions regarding the right to appeal against a decision, action or inaction of pre-trial investigative authorities or the prosecutor during a pre-trial investigation (ibid. 2012, c. 26(1)). A translation of Articles 303 to 308 from the new Code is attached to this Response (Attachment 2).

1.2.1 Amendments Made Between November 2012 and July 2014

Pursuant to Act 314-VII of 23 May 2013, Articles 303 and 305 of the new Criminal Procedure Code were amended as follows:

[translation]

27) in part one of article 303:

to complete paragraph 1, after the words "his/her defence counsel or legal representative," with the words “representative of a legal entity which is the object of the proceeding";

to complete paragraph 2 with the words "[by the] representative of the legal entity which is the object of the proceeding";

to reformulate paragraph 4 as follows:

4) the decision of the prosecutor to terminate a criminal proceeding and/or a proceeding with regard of a legal entity – by the claimant, the victim, his/her representative or legal representative, the suspect, his/her defence counsel or legal representative, the representative of the legal entity that is the object of the proceeding";

28) in subparagraph two of part two of article 305, to replace the word “fifth” with the word "sixth". (ibid. 2013)

In addition, pursuant to Act No. 767-VII of 23 February 2014, under part one, Article 303(9) was removed (ibid. 2014b). Article 303(9) stated the following:

[translation]

9) a decision of an investigator or prosecutor on conducting a criminal proceeding in absentia - by the suspect, his/her defence counsel or legal representative, the victim, his/her representative or legal representative. (ibid. 2014a)

2. Implementation of the Code

In correspondence with the Research Directorate, a criminal lawyer from Kyiv stated that the Criminal Procedure Code is implemented by police in all regions of Ukraine, including in the Chernihiv and Kyiv regions (Lawyer 28 Sept. 2015). Further and corroborating information on the implementation of the Code by police in the Chernihiv and Kyiv regions could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to the lawyer, cases with completed pre-trial investigations received by the courts on or before 19 November 2012 are processed under the old Criminal Procedure Code (ibid.). According to the same source, cases with completed pre-trial investigations received by the courts on or after 20 November 2012 are processed under the new Code (ibid.). The lawyer further explained that cases with pre-trial investigations that had not been completed as of 19 November 2012 are processed and "investigated further" under the new Code (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Amnesty International (AI). April 2013. "Ukraine: Don't Stop Halfway." EUR 50/004/2013). <http://www.amnestyusa.org/sites/default/files/eur500042013en.pdf> [Accessed 18 Sept. 2015]

Lawyer, Kyiv. 28 September 2015. Correspondence with the Research Directorate.

Ukraine. 2014a. Criminal Procedure Code of Ukraine. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/4651-17/ed20140228/page9> [Accessed 23 Sept. 2015]

_____. 2014b. Act 767-VII of 23.02.2014. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/767-18/paran196#n196> [Accessed 23 Sept. 2015]

_____. 2013. Act. No. 314-VII of 23.05.2013. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/314-18/paran140#n140> [Accessed 23 Sept. 2015]

_____. 2012. Criminal Procedure Code of Ukraine. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/4651-17/page11> [Accessed 22 Sept. 2015]

_____. 2011. Act No. 3388-VI (3388-17) of 19.05.2011. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/3388-17> [Accessed 23 Sept. 2015]

_____. 2010. Act No. 2395-VI (2395-17) of 01.07.2010. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/2395-17> [Accessed 23 Sept. 2015]

_____. 1960 (amended 2012). Criminal Procedure Code of Ukraine. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/1003-05> [Accessed 22 Sept. 2015]

_____. N.d.a. Verkhovna Rada. The Criminal Procedural Code of Ukraine. <http://zakon2.rada.gov.ua/laws/show/1001-05> [Accessed 22 Sept. 2015]

The Ukrainian Week. 31 March 2013. Andriy Skumin. "The First Impressions from the New Code." <http://ukrainianweek.com/Politics/75909> [Accessed 18 Sept. 2015]

Additional Sources Consulted

Oral sources: criminal lawyers in Chernihiv and Kyiv; Ukraine – Embassy of Ukraine in Ottawa, Ombudsman, Prosecutor General's Office.

Internet sites, including: ABC News; American Bar Association; Amnesty International; Argumenti i Fakti; BBC; Centre for Eastern Studies (OSW); Centre for Research on Globalization; Democratization, Human Rights and Civil Society Development Praxis Portal; Deutsche Welle; ecoi.net; EUObserver; Euromaidan Press; European Centre for a Modern Ukraine; Factiva; Freedom House; Human Rights Watch; The Independent; Institute of European, Russian and Eurasian Studies, Carleton University; Interfax – Ukraine; International Crisis Group; Interpol Kiev; Kyiv International Institute of Sociology; Kyiv Post; Minority Rights Group International; The Moscow Times; The New York Times; Organization for Security and Co-operation in Europe; Radio Free Europe/Radio Liberty; Reuters; RIA Novosti; RT.com; School of Russian and Asian Studies; Sputniknews.com; Ukraine – Ministry of Foreign Affairs, Ministry of Internal Affairs, Ombudsman, Prosecutor General's Office, State Border Guard Service; The Ukrainian Weekly; Ukraine Today; Ukrinform; United Nations – Refworld, UN Office on Drugs and Crime; United States – Department of State, Library of Congress; The Voice of Russia; World Affairs; World Intellectual Property Organization.

Attachments

1. Ukraine. 2012. Criminal Procedure Code of Ukraine. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/4651-17/page11> [Accessed 22 Sept. 2015]

2. Ukraine. 1960 (amended 2012). Criminal Procedure Code of Ukraine. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. <http://zakon2.rada.gov.ua/laws/show/1003-05> [Accessed 22 Sept. 2015]

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