Analysis of the draft law:
Analysis of the Draft Law of Ukraine on Ensuring Criminal Proceedings under Conditions of Temporary Occupation
This draft law is aimed at addressing legal gaps in criminal proceedings that have arisen due to the temporary occupation of territories of Ukraine. The document introduces mechanisms for the restoration of lost criminal case files, procedures for trial in absentia for persons located in occupied territories, and defines specifics for the execution of sentences in situations where access to them is impossible. The project also provides for a humanitarian aspect, establishing grounds for release from punishment for persons who could not serve it for objective reasons related to the occupation, and integrates them into the social patronage system.
Structure and Main Amendments
The project introduces systemic amendments to the Criminal Code (CC), the Criminal Procedure Code (CPC), and the Law “On Social Adaptation of Persons Serving or Having Served a Sentence.”
- Criminal Code of Ukraine: Supplemented with final provisions that allow courts to release convicted persons from further serving a sentence (with the exception of crimes against national security, life imprisonment, and other serious categories) if the terms of execution of the sentence have expired during the occupation.
- Criminal Procedure Code of Ukraine: A new Chapter IX “Specifics of Pre-trial Investigation and Judicial Proceedings…” is introduced, detailing the procedure for restoring lost files, special rules for serving subpoenas (in particular, through the official website of the Office of the Prosecutor General and messengers), and the procedure for suspending/resuming proceedings.
- Compared to previous approaches: Previously, the legislation did not contain a comprehensive mechanism for restoring “destroyed” or “abandoned” cases in occupied territories, which blocked access to justice. Now, a clear algorithm of actions for investigating judges and courts is proposed.
Key Provisions for Experts and Business
The most critical aspects of the project for various groups are:
- For law enforcement agencies and the prosecutor’s office: A simplified procedure for summoning suspects located in the occupied territory is introduced through the publication of subpoenas on the website of the Office of the Prosecutor General. This significantly accelerates the procedure of special pre-trial investigation.
- For citizens (convicted persons): A legal toolkit is being created to resolve the issue of crediting the term of serving a sentence if a person was in the occupied territory and was effectively deprived of the opportunity to serve the sentence in the manner prescribed by law.
- For the judicial system: A mechanism for “restoring” lost cases is introduced, which allows courts to make decisions based on available copies and materials, even if the originals are destroyed. This is critical to avoid a “legal vacuum” regarding thousands of proceedings.
- For the social sphere: Amendments have been made to the Law on Social Adaptation, where persons convicted by Ukrainian courts but who served sentences in occupied territories are equated to the category of “released persons,” which grants them the right to social patronage and state assistance.
It is important to note that any “decisions” or “documents” issued by occupation authorities are explicitly recognized by the project as void and having no legal consequences, which is consistent with the state policy of Ukraine.
Analysis of the explanatory note:
Greetings. As a lawyer with many years of experience, I have analyzed the provided document. This is a comprehensive legislative initiative aimed at resolving acute problems in the field of criminal justice caused by the occupation of part of the territory of Ukraine.
1. Essence of the draft law
The draft law is aimed at adapting the criminal process to the realities of martial law and occupation, providing law enforcement agencies with effective tools for administering justice against persons who are in occupied territories or in the aggressor state. The document also introduces mechanisms for restoring lost criminal case files and regulates the issue of serving sentences by persons whose detention has become impossible due to the occupation.
2. Reasons and necessity for adoption
The author of the explanatory note highlights three key reasons:
- Inefficiency of existing procedures: The existing mechanism of international legal assistance through requests to the aggressor country is a fiction, as responses are either not provided at all or take years, which effectively paralyzes the investigation of crimes against national security.
- Risks of violating Art. 6 of the Convention on Human Rights: The practice of the ECHR (in particular, the cases of “Kurochenko and Zolotukhin v. Ukraine”) indicates that the lack of procedures for restoring cases and properly notifying suspects is a violation of the right to a fair trial. It is necessary to enshrine the right to review sentences handed down in absentia (in the absence of the accused).
- Legislative gap: The lack of regulation of the status of persons who served sentences in occupied territories creates legal uncertainty that must be resolved to ensure legality and law and order.
3. Main consequences of the draft law
The consequences have a significant impact on the legal system and citizens:
- For law enforcement and the court: The list of crimes (including cybercrimes, high treason) for which a special pre-trial investigation is possible is expanded. The procedure for notifying suspects through the use of modern means of communication (messengers, email) is simplified, which corresponds to the current practice of the Supreme Court.
- For citizens (the accused): The right to have a sentence reviewed with the participation of the convicted person after their detention is enshrined if they were not properly notified of the process. This creates safeguards against “in absentia” convictions without the right to a defense.
- For the execution of sentences: It is proposed to credit towards the term of the served sentence the period when its execution was effectively impossible due to the occupation (except for cases of evasion of service). This is an important step to unburden the system and respect the rights of persons who became hostages of circumstances.
- For justice as a whole: A procedure for restoring lost criminal case files is introduced, which will finally allow the completion of proceedings that previously “stalled” due to the loss of documents in occupied territories.
In summary, the project aims to find a balance between the inevitability of punishment for serious crimes and adherence to minimum standards of human rights protection, which is critical for the legitimacy of Ukrainian justice in the eyes of the international community.
Analysis of other documents:
Greetings. As a lawyer with 15 years of experience, I have analyzed the submitted documents. Below I provide a professional analysis of this draft law.
1. Position of the author of the document
The author of the draft law is the Cabinet of Ministers of Ukraine, represented by Prime Minister Yuliia Svyrydenko. The Government fully supports the adoption of this project and insists on its consideration by the Verkhovna Rada, as it is aimed at resolving critical problems in justice caused by the temporary occupation of territories of Ukraine. The document is submitted for the purpose of legislative regulation of mechanisms for restoring criminal proceedings and executing sentences in cases where access to case files is impossible due to occupation or armed aggression.
2. Main provisions of the draft law
This draft law is extremely important as it creates a legal basis for the work of the law enforcement system and courts in wartime conditions. Here are the key aspects to pay attention to:
- Recognition of invalidity of documents of occupation authorities: The project clearly establishes that any decisions or documents issued by illegal occupation authorities are void and do not create legal consequences. This is a fundamental protection of the legal field of Ukraine.
- Procedural simplification of notifications: A mechanism for publishing summonses for appearance on the website of the Office of the Prosecutor General or the court is introduced in cases where a person is in an occupied territory or in the aggressor state. This significantly accelerates procedures and eliminates the problem of “impossibility of service.”
- Restoration of lost materials: A new procedure for restoring criminal proceedings, the materials of which were destroyed or seized, is introduced. This will allow for the continuation of investigations into cases that are currently in a “suspended” state.
- Specifics of serving a sentence: The project provides that convicted persons who ended up in occupied territories may be released from punishment (if the statute of limitations has expired), except for persons convicted of crimes against the foundations of national security or international crimes. At the same time, for the latter, a procedure for crediting the time spent in the occupied territory towards the term of the served sentence is introduced under certain conditions.
- Special pre-trial investigation (in absentia): The list of crimes and grounds for conducting a special investigation against persons hiding in occupied territories or in the aggressor country has been expanded, which significantly strengthens the inevitability of punishment.
For business and citizens, this means a clearer procedure for appealing decisions and the possibility of restoring materials in cases where they are victims or applicants. For the professional community, this law is an instrument that finally fills the gaps in the CPC that have arisen since 2022.
