The Key Legislative Changes
What has changed in criminal law and procedure in 2024?
A person may be discharged from criminal liability for military offenses under certain conditions
On September 07, 2024, a law on amending Article 401 of the Criminal Code of Ukraine came into force. According to this law, individuals who commit desertion or arbitrary abandonment of a military unit for the first time during martial law may be discharged from criminal liability. To be eligible, they must voluntarily submit a petition to the investigator, prosecutor, or court expressing their intention to return to the same or a different military unit or the place of service to resume military duties. Additionally, the commander or chief of the military unit or institution must provide written consent for the individual to continue their military service.
Thus, if the court closes criminal proceedings and discharges a suspect or accused person from criminal liability, the court shall, by its ruling, also oblige the discharged person to be immediately reinstated in military service after the entry into force of such ruling and to report to the relevant military unit or place of service to continue his/her military service within 72 hours.
Ukraine has ratified the Rome Statute of the International Criminal Court and amendments to it
On August 21, 2024, the Verkhovna Rada of Ukraine approved a law on ratifying the Rome Statute. This law acknowledges Ukraine’s acceptance of the International Criminal Court’s jurisdiction over war crimes, crimes against humanity, and genocide since November 21, 2013. Additionally, Ukraine has recognized the jurisdiction of the ICC over the crime of aggression since July 17, 2018.
However, for seven years following the implementation of the Rome Statute in Ukraine, the country will not acknowledge the authority of the International Criminal Court in cases involving war crimes allegedly committed by Ukrainian citizens.
The procedure for calculating the pre-trial investigation period has been changed
On 01 January 2024, a law came into force introducing new rules for calculating the pre-trial investigation period.
From now on, the pre-trial investigation period shall be calculated from the moment a person is notified of suspicion, and not from the moment the information is entered into the Unified State Register of Pre-trial Investigations or a decision is made to initiate a pre-trial investigation in accordance with Article 615 of the CPC of Ukraine, as it was in the previous edition of Article 219 of the CPC of Ukraine.
This law applies to any ongoing criminal cases that have not reached the completion of their pre-trial investigation or trial before it comes into force.
The autonomy of the Specialized Anti-Corruption Prosecutor's Office has been increased
On 01 January 2024, a law came into force amending a several regulations governing the Specialized Anti-Corruption Prosecutor’s Office (hereinafter – the SAP) functioning, in particular the CPC of Ukraine, the Law of Ukraine “On the Prosecutor’s Office”, and the Law of Ukraine “On State Secrets”.
From now on, the provisions of the CPC of Ukraine, in particular Articles 3 and 36, establish that the Chief of the SAP is equal to the chief prosecutor of the prosecutor’s office.
In addition, it has been clarified that the Chief of the SAP and his deputies have the right to supplement, amend or withdraw an appellate or cassation complaint, an application for review of a court decision due to newly discovered or exceptional circumstances filed by them, chiefs, and deputy chiefs of departments or prosecutors of the SAP.
Also, the Chief of the SAP has the right to resolve disputes over jurisdiction in criminal proceedings that may fall under the jurisdiction of the National Anti-Corruption Bureau of Ukraine.
The Law of Ukraine “On the Prosecutor’s Office” has been amended with novelties aimed at ensuring the organizational independence of the SAP, in particular it provides:
- authorizing the Chief of the SAP to approve the staffing list, budget and organization of the SAP performance;
- establishment of units within the SAP structure for document management, confidential work, human resources management and internal control;
- the procedure of competitive selection for appointment to administrative positions in the SAP and to the positions of prosecutors;
- requirements for members of the competition commission;
- establishing a mechanism of accountability of the SAP management and conducting an audit of the SAP with the involvement of international experts;
- separate funding for the SAP.
Additionally, the Law of Ukraine “On State Secrets” includes the Chief of the SAPO into the list of persons who are granted access to state secrets of all levels of secrecy.
The section of the Criminal Code of Ukraine on criminal offenses in the field of economic activity has been amended to distinguish certain types of smuggling
On 1 January 2024, a law came into force that introduced the new corpus delicti related to smuggling into the Criminal Сode of Ukraine (hereinafter – the CC of Ukraine).
From now on, smuggling, i.e., the movement of goods and other values across the customs border of Ukraine outside customs control or concealed from customs control, is divided into the following types depending on the subject matter:
- smuggling of cultural values and weapons (Article 201 of the CC of Ukraine) – punishable by imprisonment for a term of 3 to 7 years;
- smuggling of timber and valuable wood (Article 201-1 of the CC of Ukraine) – punishable by imprisonment for a term of 3 to 5 years;
- smuggling of goods (Article 201-3 of the CC of Ukraine) – punishable by a fine of UAH 170,000 to UAH 425,000;
- smuggling of excisable goods (Article 201-4 of the CC of Ukraine) – punishable by a fine of UAH 340,000 to UAH 680,000 or imprisonment for a term of 3 to 6 years.
Each of the above-mentioned offenses has qualifying circumstances, namely:
- committing a smuggling-related offense by a person who has been previously convicted of smuggling;
- committing a smuggling-related offense by an official, by prior conspiracy, by a group of persons, or by an organized criminal organization;
- committing a smuggling-related offense on a significant or large scale.
The pre-trial investigation of criminal proceedings related to the smuggling of cultural values and weapons will be carried out by the Security Service of Ukraine, and the smuggling of timber and precious wood, goods, and excisable goods – by the Bureau of Economic Security of Ukraine.
Amendments have been introduced to the provisions of the Criminal Procedure Code of Ukraine concerning the court’s composition in first-instance trials
On May 16, 2024, the law came into force, requiring that only one judge shall preside over criminal proceedings in the High Anti-Corruption Court.
However, the trial, which began before the law came into force and is conducted in the court of first instance by a three-judge panel, continues and shall be completed by a panel.
In addition, the law provides additional cases of mandatory collegial consideration of criminal cases in the first-instance courts. More specifically, in the court of first instance, criminal proceedings are handled by a three-judge panel, but only if the accused files a motion and has a status of:
– the President of Ukraine, whose powers have been terminated;
– a Member of Parliament of Ukraine;
– the Prime Minister of Ukraine;
– a Member of the Cabinet of Ministers of Ukraine;
– the Prosecutor General, the Deputy Prosecutor General – Head of the Specialized Anti-Corruption Prosecutor’s Office;
– the Head of the Security Service of Ukraine;
– the Director of the State Bureau of Investigation;
– the Director of the National Anti-Corruption Bureau of Ukraine;
– the Head of the National Agency for the Prevention of Corruption;
– the Head of the Antimonopoly Committee of Ukraine;
– the Ukrainian Parliament Commissioner for Human Rights;
– the Chairman and judges of the Constitutional Court of Ukraine;
– the Chairman of the Supreme Court, chairmen of higher specialized courts;
– the Chairman of the High Council of Justice and others.
Participation in the defense of the country, as well as the protection of its independence and territorial integrity, may now lead to parole, according to the new law
On May 19, 2024, a law came into force, allowing courts to grant parole to individuals who are serving sentences of restriction of liberty or fixed-term imprisonment to perform military service under contract during mobilization or martial law.
However, parole shall not be applied to persons convicted of:
– crimes against the national security of Ukraine;
– the intentional murder of two or more persons, or committed with special brutality, or coupled with rape, or sexual abuse;
– the particularly grave corruption criminal offenses;
– criminal offenses against sexual freedom and sexual inviolability of a person (Articles 152-156-1 of the Criminal Code of Ukraine);
– criminal offenses related to terrorism (Articles 258-258-6 of the Criminal Code of Ukraine);
– the violation of the traffic safety rules or operation of transport by persons driving vehicles under the influence of medicines, where they caused the death of several people (part 4 of Article 286-1 of the Criminal Code of Ukraine);
– the trespass against the life of a law enforcement officer, a member of a community formation for the protection of public order, or a military servant (Article 348 of the Criminal Code of Ukraine);
– a criminal offense by persons who, under subpart. 1, para. 3 of the note to Article 368 of the Criminal Code of Ukraine held a responsible position.
A court may grant parole for military service under a contract if the convicted person has expressed a willingness to perform military service under a contract and meets the requirements for military service under a contract as defined in Article 21-5 of the Law of Ukraine.
The Criminal Code of Ukraine has also been amended to include a crime related to evasion of enlistment for military service under a contract by a person who was released on parole for military service during mobilization and/or martial law.
Efforts have been made to enhance the functioning of the officials overseeing the rights and well-being of detainees
On April 19, 2024, the law came into force, requiring the appointment of one or more officials responsible for the well-being and rights of detainees within the pre-trial investigation body including a subdivision of the pre-trial investigation unit.
However, this law stipulates that investigators, inquiry officers, heads of pre-trial investigation bodies, heads of inquiry bodies, other employees of the pre-trial investigation body’s unit, and operational units cannot be responsible for the detainees’ stay and ensuring their rights.
Among the novelties regarding the status of an official responsible for the stay and observance of the rights of detainees, it is worth noting that from now on, this official is obliged to:
– explain to the detainee the grounds for his/her detention, rights, and obligations;
– conduct a questioning about the circumstances of detention, use of coercive measures by the authorized official, conduct a personal search and seizure of property, the notification the detainee of the grounds for detention and his/her rights, the notification the third parties of the fact of detention, and the detainee’s health status;
– in case of violations of the detainee’s rights, torture, cruel or inhuman treatment, immediately take measures to stop them and report to the head of the body, which includes a unit of the pre-trial investigation body, and notify the prosecutor in writing.
Criminal prosecution of members of a collegial body under Article 368 of the Criminal Code of Ukraine as per the latest position of the Supreme Court
In the decision dated April 23, 2024, the Criminal Court of Cassation of the Supreme Court (hereinafter – the SC) has provided clarification on the circumstances in which members of a collegial body can be held liable under Article 368 of the Criminal Code of Ukraine.
The essence of the criminal proceedings is that the person, as the head of the sector of investigation, analysis, and accounting of accidents and occupational injuries of the State Labor Service in Chernivtsi region and the chairman of the commission for a special investigation, received an undue benefit for signing and issuing a favorable opinion of the commission for a special investigation of the accident of the death of the director of the State Enterprise “Beregomet Forestry and Hunting Farm” and recognizing it as related to production.
The first-instance court found the person guilty of committing a criminal offense under part 3 of Article 368 of the Criminal Code of Ukraine. The court of appeals upheld the verdict.
Disagreeing with the decisions of the courts of previous instances, the convict filed a cassation appeal, reasoning it, among other things, with the fact that as the head of the commission for special investigations, he had no authority to render decisions independently. In addition, in his opinion, the courts did not pay attention to the SC ruling in case No. 243/1573/17, according to which the qualification of actions under Article 368 of the Criminal Code of Ukraine is excluded if the decision-making is within the competence of a collegial body.
The SC, when examining the complainant’s arguments, observed that a member of a collegial body may be held accountable under Article 368 of the Criminal Code of Ukraine, even if the issue for which an illegal benefit was received is resolved by the collegial body through a unanimous decision following a vote. Furthermore, the outcome of any decision made by a collegial body, whether it is favorable or unfavorable to the party involved in the illegal benefit exchange, is inconsequential. This is due to the fact that Article 368 of the Criminal Code focuses on specific actions, such as receiving unlawful benefits, without requiring the provider to have achieved their intended result.
Moreover, the SC deemed the Supreme Court’s decision on January 13, 2021, in case number 243/1573/17 as irrelevant. The case specifically addressed the issue of the deputy mayor’s lack of authority in determining which municipal property could be privatized.
Thus, members of a collegial body who receive an undue benefit for making decisions or performing actions within the competence of such a body are subjects of relevant corruption offenses.
What has changed in criminal law and procedure in 2023?Criminal liability: changes to the Criminal Code of Ukraine during martial lawWhat has changed in criminal law and procedure in 2022?What has changed in criminal law and procedure in 2021?
Criminal liability: changes to the Criminal Code of Ukraine during martial lawWhat has changed in criminal law and procedure in 2022?What has changed in criminal law and procedure in 2021?
What has changed in criminal law and procedure in 2022?What has changed in criminal law and procedure in 2021?
What has changed in criminal law and procedure in 2021?
The application has been sent
Thank you very much for your inquiry. We will contact you shortly!
Thank you!
You are subscribed to the latest news