The Key Legislative Changes

On March 7, 2022, legislative changes came into force to strengthen the responsibility for crimes against the foundations of the national security of Ukraine under martial law.

In particular, the Criminal Code of Ukraine was supplemented by provisions which establish maximum sentence for treason under martial law and sabotage under martial law or during armed conflict. Namely, it is imprisonment for a term of 15 years or life sentence, with compulsory confiscation of property.

Henceforth, it is prohibited to release the persons who have committed treason and sabotage from serving their sentences by amnesty law.

On March 15, 2022, the Criminal Code of Ukraine was supplemented by an article 111-1 (collaborative activities).

Henceforth, the legislator defines as a crime the following acts:

• public denial of the armed aggression against Ukraine by a citizen of Ukraine; establishment and approval of temporary occupation of part of Ukraine’s territory; public calls by a Ukrainian citizen to support the decisions and (or) actions of an aggressor state and the aggressor state’s armed formations and/or occupation administrations; calls for cooperation with an aggressor state and its armed formations and/or occupation administration; non-recognition of the extension of Ukraine’s state sovereignty over temporarily occupied territories of Ukraine;
• implementation of propaganda of the aggressor state by a citizen of Ukraine in educational institutions; implementation of actions aimed at the adoption of the standards of education of the aggressor state in educational institutions;
• transfer of material resources to illegal armed or paramilitary formations of the aggressor state;
• conducting economic activities in cooperation with the aggressor state and illegal authorities;
• organizing and conducting political/ information activities in cooperation with the aggressor state aimed at supporting the aggressor state and/or avoiding its responsibility for armed aggression against Ukraine;
• voluntary holding by a citizen of Ukraine an appointment in illegal authorities, illegal judicial or law enforcement agencies; voluntary participation in illegal armed or paramilitary formations;
• participation in the organization and conduct of illegal elections and/or referendums in the temporarily occupied territory or public calls for such illegal elections and/or referendums;
• providing assistance to illegal armed or paramilitary formations of the aggressor state in conducting hostilities against the Armed Forces of Ukraine and other military formations of Ukraine.

Some of the listed actions or decisions that led to the death of people or the occurrence of other serious consequences are considered aggravating circumstances. In such case, the punishment will be imprisonment for a term of 15 years or life imprisonment with deprivation of the right to hold certain positions or engage in certain activities for a period of 10 to 15 years as well as possible confiscation of property.Moreover, if collaboration actions are carried out by an authorized person on behalf of a legal entity, criminal law measures, namely liquidation, may be applied to such entity.

Article 161 of the Criminal Code of Ukraine was supplemented by a provision according to which intentional actions aimed at inciting regional hatred are considered a crime.

Regional affiliation should be understood as the affiliation of a person by birth or residence to a region – part of the territory of Ukraine or territory of compact settlement of Ukrainians outside the territory of Ukraine – which differs from other territories in a number of historical, geographical, linguistic and other features.

For committing intentional acts aimed at inciting regional hatred, the liability is provided in the form of:

• a fine of 200 to 500 non-taxable minimum incomes or
• restriction of liberty for up to 5 years, or
• imprisonment for up to 3 years, with
• deprivation of the right to hold certain positions or engage in certain activities for up to 3 years or without such.

The Criminal Code of Ukraine was supplemented by Article 435-1 (insult to the honor and dignity of a serviceman, threat to a serviceman).

Punishment in the form of restriction or imprisonment for a term of 3 to 5 years is provided for committing acts against a serviceman who takes measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation, his close relatives or family members, namely:

• the threat of murder, violence,
• the threat of destruction or damage to property,
• insult to the honor and dignity of a serviceman or
• production and distribution of materials containing such information.

The Criminal Code of Ukraine is supplemented by Art. 436-2 (justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants).

From now on, it is provided liability in the form of correctional labor for up to 2 years or arrest for up to 6 months, or imprisonment for up to 3 years for the following actions:

• justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, started in 2014, including by:
  • representation of the armed aggression of the Russian Federation against Ukraine as an internal civil conflict,
  • justification, recognition as lawful, denial of temporary occupation of part of the territory of Ukraine;

glorification of:

• persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014,
• representatives of the armed forces of the Russian Federation,
• irregular illegal armed groups,
• armed gangs and groups of mercenaries created, subordinated, managed, and financed by the Russian Federation,
• representatives of the occupation administration of the Russian Federation, which consists of its state bodies and structures functionally responsible for the management of the temporarily occupied territories of Ukraine,
• representatives of self-proclaimed bodies controlled by the Russian Federation, which usurped the exercise of power in the temporarily occupied territories of Ukraine.

For the production and distribution of materials containing such information, it is established liability in the form of restriction or imprisonment for up to 5 years, with or without confiscation of property.

Qualified corpus delicti takes place in the case of a criminal offense convicted:

• by official,
• repeatedly,
• by an organized group,
• using the media.

On March 7, 2022, amendments were made to the Criminal Code of Ukraine, which strengthened the liability for marauding (Article 432 of the Criminal Code of Ukraine) and established a minimum sentence of 5 years in prison.

It should be recalled that marauding is a military offense, the essence of which is to steal on the battlefield things of wounded or killed. There is a difference between marauding and other criminal offenses against property (theft, robbery, burglary, etc.). This difference is in the place of abduction and from whom exactly thing was stolen.

The new law increased the punishment not only for marauding but also for using tragic circumstances, fighting for their own gain. Thus, changes also affected corpus delicti under Articles 185 (theft), 186 (robbery), 187 (robbery), 189 (extortion), 191 (seizure of property through abuse of office) of the Criminal Code of Ukraine. These crimes were supplemented by a qualifying feature – commission under martial law or state of emergency.

Therefore, the responsibility for committing criminal offenses against property in a state of war or emergency has become more severe.

07.03.2022 to ensure the participation of civilians (citizens of Ukraine, as well as foreigners and stateless persons legally staying in Ukraine) in repelling and deterring armed aggression of the Russian Federation and/or other states, the Criminal Code of Ukraine was amended, excluding their liability for the use of firearms against persons who carry out armed aggression against Ukraine, if such weapons are used in the manner and in accordance with the Law of Ukraine “On ensuring the participation of civilians in the defense of Ukraine.”

On March 21, 2022, legislative changes came into force to determine the circumstances under which an action cannot be considered unlawful and provide combat immunity in martial law.

In particular, the Criminal Code of Ukraine was supplemented by Article 43-1 (fulfillment of the duty to protect the Fatherland, independence, and territorial integrity of Ukraine), which provides for the exclusion of criminal liability for an act (act or omission) committed during martial law or during armed conflict and aimed at repelling and deterring the armed aggression of the Russian Federation or the aggression of another country, if it harmed the life or health of the person committing such aggression, or harmed legally protected interests, provided:

• no signs of torture,
• no signs of the use of means of warfare prohibited by international law and other violations of the rules or customs of war.

Also, Article 43-1 of the Criminal Code of Ukraine excludes liability for the use of weapons, ammunition, or explosives against persons carrying out armed aggression against Ukraine as well as for damage or destruction of property in this regard.

It is not considered as the fulfillment of the obligation to protect the Fatherland, independence, and territorial integrity of Ukraine to commit an act that:

• is clearly inconsistent with the danger of aggression or the situation of repulse and deterrence;
• was not necessary to achieve a significant socially useful goal in a particular situation;
• endangered the lives of others;
• created a threat of ecological catastrophe;
• created the onset of other large-scale emergencies.

On March 27, 2022, changes came into force to introduce criminal liability for the dissemination under martial law of information on the direction, movement of weapons and ammunition to Ukraine, including their movement through Ukraine, and dissemination of information on movement or location of Armed Forces of Ukraine or other military formations formed under the laws of Ukraine ( if it is possible identify them on the ground).

The exception is the dissemination of information that is already publicly available by the General Staff of the Armed Forces of Ukraine or the Ministry of Defense of Ukraine or in official sources of the relevant agencies of partner countries.

Depending on the information disseminated, the sentence can range from 3 to 8 years in prison. If the dissemination of information was carried out with the prior conspiracy of a group of persons or for selfish motives, or to provide such information to a state carrying out an armed aggression against Ukraine or an illegal armed group, or if they caused serious consequences, the punishment is 8 to 12 years’ imprisonment.

03.04.2022 the Criminal Code of Ukraine was supplemented by Article 201-2 (illegal use of humanitarian aid, charitable donations, or gratuitous aid to receive gain).

According to Art. 201-2 of the Criminal Code of Ukraine there were recognized as a crime intentional acts committed for profit, which are:

• sales of goods (items) of humanitarian aid or
• use of charitable donations, gratuitous assistance or
• concluding other transactions on the disposal of such property,

if the total value of goods/property exceeds 350 non-taxable income of citizens.

The punishment for the above actions is a fine of 2,000 to 3,000 non-taxable incomes of citizens or correctional labor for up to 2 years or restriction of liberty for up to 4 years.

If the crime is committed repeatedly or by prior conspiracy by a group of persons, or an official using an official position, or in a large amount (the total value of goods, gratuitous assistance, or financial assistance in 1000 and more times exceeds the non-taxable income of citizens), the offender faces imprisonment for a term

from 3 to 5 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years and with confiscation of property.

If the crime was committed during martial law or a state of emergency or by an organized group of persons, or in a particularly large amount (the total value of goods, gratuitous assistance or financial assistance in 3000 and more times exceeds the non-taxable income of citizens), the punishment will be imprisonment for 5 to 7 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years and with confiscation of property.

Starting from 03.04.2022 the person who voluntarily surrender over to authorities:

• firearms (except smooth-bore hunting weapons), ammunition, explosives or explosive devices,
• daggers, Finnish knives, fists, or other melee weapons

(which were with such a person without the permission provided by law) is not subject to criminal liability under Art. 263 of the Criminal Code of Ukraine (illegal handling of the weapon, ammunition, or explosives).

On April 23, 2022, the Criminal Code of Ukraine was supplemented with Article 111-2 “Assistance to the aggressor state”.

Thus, criminal liability is provided in the form of imprisonment for a term of 10 to 20 years with deprivation of the right to hold certain positions or engage in certain activities for a term of 10 to 15 years and with or without confiscation of property for intentional actions to help the aggressor state (assistance), armed formation and/or occupation administration of the aggressor state, committed by a citizen of Ukraine, a foreigner or a stateless person, except for citizens of the aggressor state, to harm Ukraine by:

• implementation or support of decisions and/or actions of the aggressor state, armed formations and/or occupation administration of the aggressor state;
• voluntary collection, preparation and/or transfer of material resources or other assets to the representatives of the aggressor state, its armed forces and/or the occupation administration of the aggressor state.

The Constitutional Court of Ukraine recognized as unconstitutional the provisions on the closure of criminal proceedings in the event of entry into force of the law, excluding criminal liability

On June 8, 2022, the Constitutional Court of Ukraine considered the case on the constitutional complaint regarding the constitutionality of paragraph 4 of part 1 of Article 284 of the Criminal Procedure Code of Ukraine (hereinafter – the Code) declaring the disputed provision of the Code unconstitutional.

Thus, according to paragraph 4 of the first part of Article 284 of the Code, criminal proceedings are closed if “a law came into force by which criminal liability for an act committed by a person has been abolished.”

Article 284 of the Code provides an exhaustive list of grounds for closing criminal proceedings. They, in turn, are classified according to several criteria.

All grounds for closing criminal proceedings are divided into rehabilitative and non-rehabilitative. Accordingly, the abolition of a certain crime in the legislation as a ground for closing the proceedings is not a rehabilitative circumstance. Thus, the closure of criminal proceedings based on non-rehabilitative grounds presupposes a statement of the fact that a person has committed a criminal offense, which leads to adverse consequences for such a person, in particular, calls into question his innocence.

At the same time, the closure of a criminal proceeding without the consent of the person restricts his/her right to protection from accusations of committing acts incriminated to him/her.

Thus, it may happen that a person will be considered to have been prosecuted, even though the very fact of committing the relevant act and its investigation may not have taken place.

At the same time, the wording of paragraph 4 of the first part of Article 284 of the Code “committed by a person” actually indicates the indisputable guilt of such a person in committing an act that was considered a criminal offense before its decriminalization. In such cases, a person may be condemned, negatively perceived by society, lose his/her business reputation, and have a negative impact on professional activities.

This provision of the Code violates such principles as the presumption of innocence, irreversibility of time (non-retroactivity) of criminal law, nullum crimen, nulla poena sine lege (“no law – no crime, no law – no punishment”) principles, the right to state one’s position and the right to a fair trial, as the person in respect of whom criminal proceedings have been closed is deprived of the opportunity to prove his/ her innocence in a lawful manner.

Provisions on conducting a pre-trial investigation during martial law have been amended.

On 25.08.2022, the law on amending Articles 331 and 615 of the CPC of Ukraine came into force.

• The procedure for considering the extension of custody has been amended.

Henceforth, when a court ruling on custody expires during martial law and certain circumstances objectively preclude the court from considering the issue of the extension of custody, the custody shall be extended until the court resolves this issue, but not more than for two months.

At the same time, the validity term of the ruling of the investigating judge on custody in these circumstances may be extended up to one month by the chief prosecutor of the prosecutor’s office at the request of the public prosecutor or the investigator upon the approval of the public prosecutor. In this case, the custody may be extended repeatedly within the term of the pre-trial investigation.

The public prosecutor shall immediately notify the superior public prosecutor and the court of the decision made on this matter and provide them with copies of relevant documents no later than 10 days from the date of notification. If it is impossible to conduct a preparatory court session, the ruling of the investigative judge or the superior public prosecutor on custody shall be extended until the court resolves this issue in the preparatory court session, but not more than for two months.

• The term for serving a written notice of suspicion has been reduced.

Henceforth, during martial law and in case certain circumstances objectively preclude the public pre-trial investigative agency from serving a written notice of suspicion to a person within 24 hours from the moment of his/her detention, the term for such procedural action may be extended up to 48 hours. Notably, the previous edition of the CPC of Ukraine established a 72-hours term for this procedural action.

If a person is not served with a written notice of suspicion within 48 hours from the moment of detention, such person shall be immediately released.

• The procedure for consideration of a motion to impose a measure of restraint on a detained person has been amended.

Thus, during martial law and in case certain circumstances objectively preclude the investigating judge from considering the motion to impose a measure of restraint on a detained person, the motion shall be considered with the use of available technical equipment of video communication to ensure the detained person`s remote participation.

If the detained person cannot be brought before the investigating judge or court within 72 hours to consider the motion to impose a measure of restraint on him/her or it is impossible to ensure his/her remote participation during the consideration of the such motion, the detained person shall be immediately released.

• The powers of the chief prosecutor of the prosecutor’s office to perform certain functions of the investigative judge have been reduced.

In comparison to the previous edition of Art. 615 of the CPC of Ukraine, the powers of the chief prosecutor of the prosecutor’s office have been reduced. Henceforth, the chief prosecutor of the prosecutor’s office is not authorized to impose custody as a measure of restraint for up to 30 days, as it had been before in exceptional cases.

However, the chief prosecutor of the prosecutor’s office is still authorized to decide on certain issues in case certain circumstances objectively preclude the investigating judge from resolving them. It applies to:

• deciding on the issue of compulsory attendance (Art. 140 of the CPC of Ukraine);
• considering motions for provisional access to items and documents (Art. 163, 164 of the CPC of Ukraine);
• deciding on the attachment of property (Art. 170, 173 of the CPC of Ukraine);
• conducting interrogation or identification in the mode of video conference during the pre-trial investigation (Art. 232 of the CPC of Ukraine);
• deciding on the permission to conduct a search of a person’s home or other property (Article 234 of the CPC of Ukraine);
• deciding on obtaining samples for examination (Article 245 of the CPC of Ukraine);
• considering motions for permission to conduct covert investigative (detective) actions (Article 250 of the CPC of Ukraine);
• considering motions to extend the pre-trial investigation within the time limits specified in subparagraphs 2, and 3 of part 3 of Article 294 of the CPC of Ukraine (Art. 294 of the CPC of Ukraine).

The law also stipulates that decisions on these issues shall be taken in the form of resolutions and must contain proper justification of the legitimacy of exercising the investigating judge powers by the chief prosecutor of the prosecutor’s office. In addition, the chief prosecutor of the prosecutor’s office in these circumstances is obliged to ensure the rights of the person on whom custody has been imposed, including verification of the legality of such rights deprivation.

• Complaints against any decisions, actions, or omissions of the public prosecutor or investigator exercising the authority under Art. 615 CPC of Ukraine may be challenged in court.

Art. 303 of the CPC of Ukraine limits the scope of decisions, actions, or omissions of the investigator or public prosecutor that may be challenged in court during the pre-trial investigation.

After the extension of the powers of law enforcement officers regarding the specifics of pre-trial investigation under martial law, there is a high risk of abuse of such powers due to the lack of judicial control at the pre-trial investigation stage.

In this context, it seems appropriate to amend Art. 615 of the CPC of Ukraine with provisions regulating the procedure for challenging in court the decision, action, or omission of the investigator or prosecutor exercising the powers defined in this article.

Thus, these complaints shall be considered by the investigating judge of the court within the territorial jurisdiction of which the pre-trial investigation is conducted. In case certain circumstances objectively preclude the relevant court from administering justice, these complaints shall be considered by the geographically nearest court that can administer justice, or by another court determined in the manner prescribed by law.

• The list of participants in criminal proceedings has been expanded and the procedure for closing criminal proceedings in respect of a new participant has been established.

The list of participants in criminal proceedings on the part of the defense has been amended with a person in respect of whom sufficient evidence has been collected to notify him/her of suspicion of committing a criminal offense, but he/she has not been notified due to his/her death.

Also, part 5 of Art. 284 of the CPC of Ukraine has been amended with the grounds for closing the criminal proceedings due to the death of such a person.

Moreover, in the pre-trial investigation, the public prosecutor at first must send a written notice to one of the close relatives or a family member, and/or the deceased’s defense counsel informing them about the possibility of closing the criminal proceedings due to the above-mentioned circumstances and explain the right to file a motion to disagree with the closure of the criminal proceedings. Only after that, the public prosecutor may render a decision to close the criminal proceedings due to the above-mentioned circumstances.

Besides, Art. 303 of the CPC of Ukraine has been amended with the opportunity to challenge the resolution of the public prosecutor on this matter before the investigating judge in the pre-trial investigation.

During the court proceedings, before rendering a decision to close the criminal proceedings, the court shall send a copy of the public prosecutor’s motion on closing the criminal proceedings to one of the close relatives or family members and/or the deceased’s defense counsel and explain the right to file a motion to disagree with the closure of the criminal proceedings due to the above-mentioned circumstances. The criminal proceedings shall be closed if no motion to disagree with the closure of criminal proceedings is submitted within 10 days.

Close relatives, family members, and/or the deceased’s lawyer may disagree with the closure of the criminal proceedings because further pre-trial investigation or court proceedings may be necessary to vindicate the deceased.

• The procedure for conducting an examination of a person has been amended.

Under Ukrainian law the pre-trial investigation is divided into inquiry and pre-trial investigation and depending on the commission of a criminal offense or crime it is conducted by the inquiry officer or investigator.

Henceforth, the examination may also be conducted based on the resolution of the inquiry officer.

Besides, the examination may now be conducted not only to detect traces of a criminal offense on the body but also on the clothes of a witness, suspect or victim and to remove them or identify special marks, if this does not require a forensic medical examination.

Before the examination, the person is offered to voluntarily undergo the examination based on the resolution of the inquiry officer, investigator, or public prosecutor. In case of refusal, it is conducted compulsorily only based on the public prosecutor’s resolution. If necessary, the examination may be conducted with the participation of a forensic medical expert, doctor, or specialist.

Furthermore, contrary to the previous edition of the article, a copy of the examination record is provided to the person after the examination regardless of whether the examination has been voluntary or compulsory.

To servicemen suspected of committing certain crimes during martial law shall only be applied custody as a measure of restraint.

On 10.09.2022, the law on imposing measures of restraint on servicemen who committed war crimes during martial law came into force. This applies to the servicemen suspected of the following crimes under Section XIX of the Criminal Code of Ukraine:

• disobedience (Art. 402 of the Criminal Code of Ukraine);
• failure to comply with orders (Art.403 of the Criminal Code of Ukraine);
• resistance to commander or coercion of a commander into breaching the official duties (Art. 404 of the Criminal Code of Ukraine);
• threats or violence against a commander (Art. 405 of the Criminal Code of Ukraine);
• absence without leave from a military unit or place of service (Art. 407 of the Criminal Code of Ukraine);
• desertion (Art. 408 of the Criminal Code of Ukraine);
• unauthorized leaving of a battlefield or refusal to use weapons (Art. 429 of the Criminal Code of Ukraine).

The procedure for the exchange of a suspect, accused, or convict as a prisoner of war has been established.

On 19.08.2022, the law on amending the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine to establish the procedure for the exchange of persons as prisoners of war came into force.

For the exchange of a person as a prisoner of war, the authorized body decides on his transfer for exchange.

This decision is the basis for the cancellation of the measure of restraint applied to a person. In this case, the person is immediately released and transferred under the supervision of the authorized body. Further detention and measures for the treatment of a released suspect, accused or convict are conducted under the procedure established by the Cabinet of Ministers of Ukraine for prisoners of war.

In addition, the decision to transfer the suspect for exchange as a prisoner of war is the basis for suspending the pre-trial investigation in criminal proceedings. The decision to suspend the pre-trial investigation on these grounds cannot be challenged.

If the exchange of a person as a prisoner of war has taken place, a special pre-trial investigation may be conducted in respect of such a person.

If the authorized body decides to transfer the accused for exchange as a prisoner of war during the trial and the accused gives his written consent to the exchange, the court shall suspend the court proceedings against such an accused. At the same time, the court continues the proceedings against the other accused, if it is conducted against several persons. If the exchange takes place, the trial against such accused may be conducted in his absence (in absentia).

There is also a new ground for the discharge of a convict from punishment and from serving it – the decision of the authorized body to transfer the convict for exchange as a prisoner of war. However, if the exchange of such a convict does not occur, the court at the request of the public prosecutor decides to send the convict discharged from punishment due to his exchange as a prisoner of war for further serving the sentence.

A cooperation mechanism has been established between the competent authorities of Ukraine and the International Criminal Court (ICC).

On 20.05.2022, amendments to Articles 183 and 208 of the Criminal Procedure Code of Ukraine came into force. Besides, a new section on cooperation with the ICC has been appended to the Code.

Henceforth, custody without determining the amount of bail may also be applied to a person if the ICC requests for his/her temporary arrest or arrest and transfer, in the manner and on the grounds under the CPC of Ukraine.

A detained person who is on the ICC wanted list, upon his/her consent to be transferred to the ICC, may be extradited under a simplified procedure. The authorized official who detains such a person must explain to him/her the right to give consent to the transfer to the ICC under a simplified procedure.

Also, the Criminal Procedure Code of Ukraine establishes:

• authorities (during the pre-trial investigation and court proceedings -the Office of the Prosecutor General, and during the execution of sentences or other decisions of the ICC – the Ministry of Justice of Ukraine), the scope and procedure for cooperation with the ICC;
• grounds for consultations of the central authorities of Ukraine with the ICC;
• specific features and consequences of the transfer or referral of criminal proceedings in the framework of cooperation with the ICC;
• specific features of ensuring the preservation of evidence;
• performance of the ICC functions in Ukraine;
• the procedure, grounds, and specific features of the temporary transfer of a person to the ICC for procedural actions;
• the procedure for the execution of the ICC request for cooperation and the ICC decisions;
• costs related to the execution of the ICC requests for cooperation;
• conditions for submitting a request (application) to the ICC by the central authority of Ukraine and requirements for its content;
• rights of the person in respect of whom the ICC has filed a request for cooperation;
• specific features of detention of persons wanted by the ICC, their arrest, and transfer to the ICC;
• the procedure and conditions for the transfer of a person to the ICC under a simplified procedure;
• the procedure for the temporary release of a person to whom custody has been applied;
• arrangement of the transfer of a person to the ICC;
• confidentiality and protection of information concerning the national security of Ukraine during cooperation with the ICC.

Until the day the Rome Statute comes into force for Ukraine, the legislative amendments shall be applied under Ukraine’s declaration of acceptance of the ICC’s jurisdiction, and the issue of enforcement of the ICC’s decision on fine and/or confiscation shall be decided in the manner prescribed for the enforcement of a foreign court sentence.

Moreover, on 01.10.2022, a law on amending the procedure for the ICC to perform its functions in Ukraine came into force. Henceforth, procedural actions in Ukraine at the request of the ICC may be conducted not only by the ICC Prosecutor but also by persons authorized by him/her and mentioned in a request of the ICC. However, the provision contains a reservation regarding actions that require the consent of the prosecutor or the permission of the investigating judge or court.

In addition, henceforth, the ICC’s authorized officers shall conduct procedural actions in Ukraine only with the consent of the Prosecutor General.

On November 06, 2022, the law on amending Article 82 of the Criminal Code of Ukraine came into force. It provides that a sentence of life imprisonment may be commuted to a term of fifteen to twenty years if the convict has served at least fifteen years of the sentence imposed by the court.

On November 15, 2022, a law acceding to the Convention on Extradition came into force. It establishes legal grounds for cooperation with the state parties’ authorities on extradition for prosecution or execution of a sentence against persons hiding in the state parties’ territories to evade justice.

Ukraine ratified the Convention with the following reservations:

• Ukraine will not extradite Ukrainian citizens to another state;
• Ukraine may refuse to extradite a person if there are reasonable grounds to believe that extradition contradicts the interests of Ukraine’s national security, and
• in Ukraine, extradition requests shall be made and received by the Office of the Prosecutor General (during the pre-trial investigation) and the Ministry of Justice of Ukraine (during court proceedings or execution of a sentence).

Notably, the state parties to the Convention are the countries mainly of the American continent, including the United States and Mexico.

Ukraine joined the European Convention on Extradition in 1998. State parties of this Convention include member states of the Council of Europe, Israel, South Africa, and South Korea.

On December 29, 2022, a law came into force aiming to harmonize the provisions on torture and other provisions of the Criminal Code of Ukraine with the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

Notably, strengthening criminal liability for torture is the first step in addressing law enforcement officers’ ill-treatment of detainees and suspects at the initial stages of pre-trial investigation. In addition, the necessity to prosecute servicemen of the occupation armed forces for crimes of torture requires certain amendments to the Criminal Code of Ukraine.

Article 127 of the Criminal Code of Ukraine has been significantly amended. Thus, a new part establishes a special qualifying circumstance for torture, such as the commission of this crime by a state representative or a foreign state representative. Previously, the crime under Article 127 of the Criminal Code of Ukraine did not include a special criminal offender as an element of the committing of torture.

Henceforth, torture, if committed by a state representative or a foreign state representative, shall be punished through imprisonment for 7 to 12 years, with deprivation of the right to occupy certain positions or engage in certain activities for up to 3 years.

The note to Art. 127 of the Criminal Code of Ukraine explains the terms а “state representative” and “foreign state representative.”

Thus, state representatives include:

• public officials,
• persons appearing to be public officials, and
• persons acting at their instigation or with their knowledge or tacit consent.

The foreign state representatives, besides public officials of a foreign state and servicemen and law enforcement officers, also are:

• members of irregular, illegal armed organizations, armed bands, and mercenary groups formed, subordinated, controlled, and financed by the russian federation,
• representatives of the occupation authorities of the russian federation, which include its state authorities and structures functionally responsible for the administration of the temporarily occupied territories of Ukraine, and
• representatives of self-proclaimed authorities controlled by the russian federation that have usurped the exercise of power in the temporarily occupied territories of Ukraine.

Moreover, the discharge from criminal liability due to the statute of limitations, discharge from punishment with probation, and imposition of a sentence milder than prescribed by law shall not apply to convicted state representatives or foreign state representatives in the crime of torture.

On December 29, 2022, a law came into force that incorporated a new chapter to the Criminal Procedural Code of Ukraine regarding criminal proceedings in respect of an act of criminal unlawfulness that has been established by a law ceased to be effective.

According to the decision of the Constitutional Court of Ukraine as of June 08, 2022, paragraph 4 of part 1 of Article 284 of the Criminal Procedural Code of Ukraine, establishing the enactment of a law that abolishes criminal liability for an act committed by a person as a ground for closing criminal proceedings, has been recognized as unconstitutional.

The decision points out that closing criminal proceedings on non-rehabilitative grounds presumes a person has committed a criminal offense. Therefore, it leads to adverse consequences for such a person, in particular, casts doubt on his or her innocence. However, the closure of criminal proceedings without a person’s consent restricts his or her right to a defense against charges of committing the act. In this regard, part 1 of Article 284 of the Criminal Procedural Code of Ukraine has been amended with a new ground in clause 4-1 – “the law establishing the criminal unlawfulness of the act has ceased to be effective.”

Henceforth, the prosecutor shall close the criminal proceedings on the grounds provided in paragraph 4-1, part 1, Article 284 of the Criminal Procedural Code of Ukraine, only if a suspect does not object to it.

If the suspect does not give consent, the criminal proceedings shall continue according to the general procedure. However, the prosecutor, having recognized the evidence collected during the pre-trial investigation as sufficient to establish that the suspect committed an act of criminal unlawfulness that has been established by a law that ceased to be effective, is obliged to inform the suspect and his or her defense counsel of the completion of the pre-trial investigation and provide access to the pre-trial investigation materials.

Thereafter, the prosecutor shall apply to the court with a motion to close criminal proceedings against the suspect on the grounds under paragraph 4-1 of part 1 of Article 284 of the Criminal Procedural Code of Ukraine.

If the suspect objects to the closure of the criminal proceedings on the grounds specified in paragraph 4-1 of part 1 of Article 284 of the Criminal Procedural Code of Ukraine, and the court concludes that the suspect has committed an act of criminal unlawfulness that has been established by a law ceased to be effective, the court shall issue a ruling to close the criminal proceedings under paragraph 1-2 of part 2 of Article 284 of the Criminal Procedural Code of Ukraine.

There may also be that the court does not conclude that the suspect committed an act of criminal unlawfulness established by a law that ceased to be effective. In that case, the court shall issue a ruling on the closure of the criminal proceedings due to the absence of a criminal offense or its elements in the suspect’s actions, i.e., under paragraphs 1 or 2 of part 1 of Article 284 of the Criminal Procedural Code of Ukraine.

In case the indictment has been submitted to the court, and the trial is already in progress, but at this stage, the law establishing the criminal unlawfulness of the act has ceased to be effective, the court shall suspend the trial and request the accused’s consent to the closure of the criminal proceedings on the grounds provided for in clause 4-1 of part 1 of Article 284 of the Criminal Procedural Code of Ukraine.

The court shall close the criminal proceedings if the accused does not object.

If the accused does not give consent and the court concludes that the accused committed an act of criminal unlawfulness that has been established by a law that has ceased to be effective, the court shall issue a ruling on the closure of the criminal proceedings under paragraph 1-2 of part two of Article 284 of the Criminal Procedural Code of Ukraine.

If the court does not establish that the accused committed an act of criminal unlawfulness established by a law that has ceased to be effective, the court shall render an acquittal.

On January 27, 2023, a law came into force that amended the provisions of the General Part and the Section XIX “Criminal Offenses Against the Established Procedure for Military Service” of the Criminal Code of Ukraine.

Henceforth, failure to comply with an order committed during martial law or in a combat situation, if it has caused grave consequences, shall be punished by imprisonment for 5 to 8 years (instead of imprisonment for 3 to 7 years).

Moreover, imposition of a punishment milder than prescribed by law and discharge from punishment on probation is no longer permissible for those convicted of:

• failure to comply with an order (Article 403 of the Criminal Code of Ukraine),
• threats or violence against a commander (Article 405 of the Criminal Code of Ukraine),
• absence without leave from a military unit or place of service (Article 407 of the Criminal Code of Ukraine),
• desertion (Article 408 of the Criminal Code of Ukraine), and
• unauthorized leaving of a battlefield or refusal to use weapons (Article 429 of the Criminal Code of Ukraine).

Notably, service members suspected or accused of committing these crimes may be subject to a preventive measure of custody only.

On January 12, 2023, the Verkhovna Rada of Ukraine adopted a law that has established a procedure for overseeing urgent measures for the temporary placement of a child left without parental care due to detention, imposition of custody, provisional or extradition arrest against parents.

Thus, for example, if during the consideration of a motion for custody, the investigating judge or court finds out that due to the imposition of custody, the child of the suspect or accused would be left without parental care, the investigating judge or court shall oblige the prosecutor to notify the National Police, authorized unit and the guardianship authority at the place of residence of such a child of the fact of leaving the child without parental care.

Immediately after the temporary placement of a child left without parental care, the guardianship authority informs the investigator, prosecutor, investigating judge, and court of the child’s place of residence (stay). Upon receipt of such information, the investigator and prosecutor shall immediately notify the suspect or accused of the child’s place of residence (stay).