Another critical element missing in the communication of supporters of draft law 10100 is an idea of the actual effect of the proposed changes, and therefore, by fighting “Lozovoy’s amendments”, they risk harming justice much more than they expect to help.

This is my final text in this series about “Lozovoy’s amendments”, in which I suggest finally getting out of this rabbit hole (here is a link to the first text) and, instead of a flash mob on Instagram, please look at the history of the issue (this is the second text) and start a balanced expert discussion among professional participants in the criminal process, so that it does not turn out later that we change the “Lozovoy’s amendments” to the “Dunning-Kruger’s amendments”.

Important context

I proceed from the fact that the Criminal Procedure Code and any potential changes to it are not local instructions for several hundred NABU proceedings; they are the rules by which all law enforcement agencies in the country work and procedures in which hundreds of thousands of people participate.

And whoever says that it is necessary to take away several procedural rights and guarantees from the hated corrupt officials should be aware that tens of thousands of other suspects in the proceedings of the police, SBI, or Economic Security Bureau will be deprived of the same rights and guarantees. The same guarantees will not be available to the next notional Serhii Sternenko or Andrii Antonenko, whose support will later be attended by those people who are now demanding the release of prosecutors from judicial control.

Formulation of the problem

If we sum up all the controversy, then the problem looks like this: detectives and prosecutors violated the legal procedure for extending the investigation period in a certain number of proceedings.

For the final result, it is of minimal importance whether these violations were intentional, committed due to ignorance, or as a result of a coincidence of circumstances – the requirements of the law were violated and the procedural deadline was missed.

The last day of the investigation period after the notification of suspicion is a very important limit because before it comes, the prosecutor is obliged to either charge the person and go to court or close the proceedings. This day is also important because, after its arrival, detectives and prosecutors are prohibited from collecting evidence for further prosecution of a person in court.

If someone previously expected that the High Anti-Corruption Court would ignore such violations, now these illusions have definitely disappeared.

But since NABU investigations have increased public attention, and the fight against corruption plays an important role in the development of the rule of law, the technical task for this problem looks something like this – it is necessary to make sure that the violations of the law already committed by detectives and prosecutors have the minimum possible impact on the further fate of the investigations in which they were admitted.

Now, we can think to what extent the legislative proposals currently in Parliament are capable of solving such a problem.

Simple decisions required from the Parliament

Let’s just take a sober look at each proposal of draft law No. 10100, which refers to the terms after the notification of suspicion.

1. Allow the heads of the prosecutor’s offices to independently extend the period of the investigation after notification of suspicion up to 12 months (now such a decision can only be made by a judge)

Impact on the problem: None. This change will have no effect on those proceedings where the deadlines were not legally extended in 2019 or 2020. The new procedure will apply to the extension of time limits in proceedings where the suspicion was reported recently – instead of obtaining the court’s permission, the prosecutor will be able to extend the time limit.

Side effects: After the adoption of this change in thousands of proceedings throughout Ukraine, prosecutors will no longer need to convince the judge that they are not just keeping suspects “on the hook” but are actually conducting an investigation that requires additional time to gather evidence. Now, the prosecutors themselves will be able to extend the investigation period for each suspect up to the maximum without explaining anything to anyone.

2. Allow the prosecutor to extend the period of the investigation “retroactively”

Literally, there is no such proposal in the draft law, but the one who proposed to exclude part 5 of article 294 from the Code obviously has precisely this in mind.

This rule obliges detectives to apply for an extension of the investigation period in advance – no later than five days before the end of the period. And this norm also determines that the period of the investigation, which has already expired, cannot be renewed.

Whoever came up with the idea of removing this provision from the law, it seems he or she expects that after this, the head of the SAPO will sit in his office and resurrect the long-lost deadlines, writing in the resolution that although he is extending them now, in fact, this is happening in 2020.

This phantasmagoria is possible only in combination with the previous point because judges will definitely not be ready to sign such decisions.

Impact on the problem: Exclusively illusory. Such retrospective decisions will not have any legal consequences and directly contradict Article 19 of the Constitution and a list of other legislative norms.

Side effects: Detectives and prosecutors will spend time and resources on such zombie proceedings, continue collecting evidence from them, and order examinations. And then, in six months or a year, we will return to the discussion of adding something else to the Code so that the courts will stop closing these proceedings.

Actually, this is the whole recipe for saving NABU’s affairs from draft law No. 10100, but it was also proposed to add several rather unique amendments to the already adopted draft law No. 10060, which the Parliamentary Committee rejected. Since these proposals will most likely be added to project No. 10100 sooner or later, you should not forget about them.

Actually, this is the whole recipe for saving NABU’s cases from draft law No. 10100, but it was also proposed to add several rather unique amendments to the already adopted draft law No. 10060, which the Parliamentary Committee rejected. Since these proposals will most likely be added to project No. 10100 sooner or later, you should not forget about them.

3. If the prosecutor is late, we pretend that he made it

The proposal was to directly add to the Code that in cases where the period of investigation after the notification of suspicion has already expired, this circumstance does not mean anything except that the prosecutor will have five more days to charge the person and apply to court.

However, it is not clear what situations this norm is for – when the prosecutor did not make it in 8 or 12 months, but everything will be done in the next five days?

This is reminiscent of how some people, in order to be less likely to be late, deliberately set their clocks forward by 10 minutes. But in this case, after the prosecutor is already late, everyone else is offered to set their clocks.

Impact on the problem: None. This proposal does not apply in any way to those proceedings where prosecutors’ deadlines expired a year or two ago.

Side effects: In addition to the obvious ineffectiveness of such regulation, the vagueness of the wording will potentially lead to different interpretations: a limit of 12 months + 5 days, or 5 days from any moment chosen by the prosecutor. As a result, the courts will find violations in both cases because, due to legal procedure, the concepts of investigation limits and reasonable periods are the basic principles of the criminal process, with which these “bonus” five days do not agree in any way.

4. Write in the law that the courts make mistakes

Another proposal was to add directly to the Code that the rules on the calculation and extension of investigation periods after suspicion, which were adopted in 2017, should not be applied to criminal proceedings that combined the materials of investigations started before 2018 and after.

That is, it is proposed to explicitly write in the law that the Supreme Court can no longer call what it called a violation all three previous years.

Impact on the problem: Exclusively illusory. If you read my previous text, you know that the root of this problem lay in a very similar norm, so adding another norm of the same dubious quality will not reduce the problem, but multiply it.

Side effects: Such a norm will “poison” even more proceedings, which the courts will then be forced to close, because prosecutors will continue to violate the procedure for extending the terms, believing that now they can definitely do it. Adding such an illegal exception to the Code will not make the position of the Supreme Court any less logical and just, but the courts will have to spend an additional paragraph in their decisions to explain why they do not take this exception into account.

5. Prohibit courts from closing proceedings

The leader of the rating of simple decisions is the proposal to simply exclude from the Code, paragraph 10 of part 1 of article 284, which provides the expiration of the investigation period after notification of suspicion as a basis for closing criminal proceedings.

Probably the idea is that if the court has no direct reason to close the proceedings, it will be forced to convict the person.

Impact on the problem: Delaying the problem, not solving it. The absence of this clause will lead to only one thing – the courts will not be able to close the proceedings at the stage of the preparatory meeting. But the fact that the court will not immediately close the proceedings does not mean that the prosecutor will like its final decision.

Side effects:

the absence of this ground does not deprive the court of the opportunity to acquit a person due to the lack of evidence of the accusation, and this is one of the most likely decisions given the prohibition of gathering evidence after the end of the investigation period;
excessive overloading of courts and prosecutors, who will be forced to consider for years those cases that can now be closed in the first session, although the final result will not change from this;
these changes will apply not only to NABU proceedings, but also to thousands of investigations by other bodies, and therefore it will affect the workload of the entire judicial system and the time frame for consideration of all other normal cases;
in the case of closing the proceedings on the basis of clause 10 (due to the expiration of the investigation period), such a decision does not create grounds for compensating a person from the state budget for the damage caused by criminal prosecution, but every acquittal due to lack of evidence of the accusation will be the basis for such payments.

I came in peace

I decided to write about the concept of “Lozovoy’s amendments” when I accidentally noticed the insincerity of the arguments in the communication in support of the draft law No. 10100. The reaction to the cancellation of the deadlines in the “factual” proceedings last week clearly confirmed my assumptions.

After the first text, it turned out that a large number of readers sincerely wanted to understand what was the problem with these “amendments”, but did not find detailed explanations from those who actively promoted their urgent cancellation (it seems that the neutral verb in my understanding “lobby” can be offensive to these gentlemen and ladies, so I deliberately do not use it in this text).

In the second text of this series, I tried to describe in as much detail and clarity as possible all the complexity and non-binary nature of the current situation with some cases of NABU.

I am convinced that NABU and SAPO have a very important mission, and the whole society is interested in their further development as systemic and mature institutions. But these institutions are part of the criminal justice system and should operate in the same legal field as other investigative bodies and prosecutor’s offices.

The only purpose of these texts is to try to warn about the possible consequences of the aggressive promotion of ill-considered and ineffective legislative changes of an unknown author, developed without any prior discussion among jurists.

In a criminal trial, the entire mechanism of state coercion (which is allowed to listen in on conversations and other interference in private communication, break into homes, deprive of freedom and property) acts against one person according to the rules that are also adopted by the state. That is why the basic principles of the criminal process are the interpretation of conflicting norms and situations in favor of the priority of human rights, and any doubts regarding the proof of guilt – in favor of the accused.

And when someone tries to solve a government error in several specific cases by simplifying the rules in favor of the state enforcement apparatus, he or she should, at a minimum, be aware of all the possible consequences of such a decision and balance the realism of achieving the desired effect with the potential harm.

Not so simple solutions

I am convinced that there are no single and simple solutions for such a complex problem.

The deadlines of the investigation have already been missed and this is an objective reality. Even if we all choose not to look up, this reality will not go away.

What can NABU and SAPO do in such a reality? To begin with, recognize it and work on mistakes.

And then boring professional work should follow: in each “problematic” proceeding, detectives and prosecutors can separately analyze in detail all the circumstances and collected materials and decide what to do next with each of them: hopelessly lost proceedings will still have to be closed; in some, you can try to focus on previously uninvestigated episodes; somewhere there may be grounds for applying civil confiscation or other non-criminal procedures, etc.

There is no universal solution here and there cannot be.

Among the possible legislative changes, I would think about adding one more exception for serious and especially serious corruption crimes to paragraph 10 of part 1 of Article 284.

But this change will also require responsible application, primarily by prosecutors. Because, as I wrote above, such an exclusion will only mean that the court will not be able to immediately make a decision to close the proceedings in the preparatory session. But this does not cancel the prohibition on conducting an investigation and collecting evidence after the end of the pre-trial investigation period. Therefore, even if one closes one’s eyes to the date of drawing up the indictment against a person, it is still not possible to use in court to prove such an accusation, which was obtained after the expiration of the terms from the moment of notification of suspicion.

Therefore, even before such a hypothetical change in the law, prosecutors should study all “problematic” proceedings and select from them those where, in their opinion, they will be able to prove the charges without evidence obtained after the end of the investigation period. Then only those proceedings in which the prosecutors will be ready to support the prosecution with such a volume of evidence are worth spending court time on.

The rest of the proceedings, where the key evidence will turn out to be compromised, no matter how much time was spent, the prosecutors will have to close due to the exhaustion of opportunities for gathering evidence, and in those that are already under consideration in court, they will have to refuse to further support the unpromising prosecution.

Without a balanced and responsible approach by prosecutors, this change will simply force the court to spend hundreds of hours of hearings and calendar years on proceedings that will never end in convictions. This is not a solution to the problem, but only delaying it and putting it on the shoulders of judges.

I don’t claim to be an exclusive expert, and of course I could be wrong in my judgments, so I’m happy to hear alternative suggestions. Each reasoned legal proposal expressed within the framework of a substantive discussion will bring us much closer to a balanced decision than thousands of stories on Instagram.

Because if I, as a lawyer, submit an appeal to the court one day later than the deadline, then no one will consider such a complaint. The court should not care how well-founded my complaint is, how much time I spent preparing it, or in the interests of which honest and enlightened person I filed it – if I violate the procedure, everything else will not matter.

Exactly the same rules for filing appeals apply to prosecutors. Are they “still active”?

Because with such arguments and solutions, as offered to us by the agitators for draft law No. 10100, if it happens that prosecutors are late in filing appeals or cassation complaints in several rather high-profile corruption cases, we risk returning to the discussion of the fact that even the deadlines for appeals are some a formal convention that prevents work and should be abolished.

The criminal process is a list of rules that in a legal state should ensure a balance between the resources and wishes of the representatives of the prosecution and the right and opportunities of a person to defend themself against it. If at some point you decide that these rules for the prosecution should become non-binding guidelines, then consider that you no longer have a criminal trial in a state of law.