Ukraine: Whether a victim of a crime can request that the Public Prosecutor's Office or another public agency initiate an investigation into the alleged crime if the police have failed to act (January-November 2017)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Judicial Reform and Status of the Prosecutor's Office

In correspondence with the Research Directorate, a program director at the Ukrainian Helsinki Human Rights Union (UHHRU), an independent non-partisan organization that describes itself as "the largest association of human rights organizations in Ukraine, which brings together 29 human rights NGOs with the purpose of human rights protection" (UHHRU 4 Apr. 2016), stated the following:

In the course of judicial reform, on June 2, 2016, significant changes were made to the Constitution of Ukraine. For example, Section VІІ "Prosecutor's Office" was excluded. The Constitution was supplemented at the same time by Article 131-1, in which the functions of the prosecutor's office were substantially cut off. In particular, the prosecutor's office has lost the function of general oversight of observance of "human and civil rights and freedoms, observance of laws on these issues" by all state authorities [and] their officials ….

According to Art. 131-1 of the Constitution, the prosecutor's office carries out: "the organization and procedural guidance of the pre-trial investigation, the resolution of other issues during criminal proceedings, the supervision of secret and other investigators and investigations of the law-enforcement bodies."

In accordance with clause 3 of Part 1 of Art. 2 of the Law of Ukraine on the Prosecutor's Office, this function is worded as "supervision of observance of laws by the bodies conducting operative search activity, inquiry, pre-trial investigation." (UHHRU 13 Nov. 2017)

According to an article regarding the passing of amendments to the Constitution of Ukraine in 2016 by CMS Law-Now, a service offered by the CMS international law firm, which "delivers expert commentary and updates" on legal issues (CMS n.d.),

[t]he amendments abolish the wide general supervisory authority of the prosecutor's office and limit its functions to the following:

1. Organization and leadership of pretrial investigations;
2. Support of public prosecution in the courts; and
3. Representation of the state's interest in the courts, according to the law. (CMS 9 June 2016)

2. Complaints Against Decisions and Actions of Police

In correspondence with the Research Directorate, a consul at the Embassy of Ukraine to Canada stated the following:

According to p.5. Part 1 of Art. 23 of the Ukrainian Law on National Police, the police must answer in time to a report of criminal or administrative offenses or events. The procedure for submitting a claim to the prosecutor's office or the police is regulated by the Criminal Procedure Code of Ukraine [CPC].

In accordance with Part 1 of Art. 214 of the CPC of Ukraine, the investigator immediately, not later than 24 hours after the submission of such a report, is obliged to put the information in the Register of pre-trial investigations and start an investigation. In accordance with Part 4. Art. 214 CPC of Ukraine a refusal to accept and register a report of a criminal offense is not allowed.

In practice, it happens when the police or the prosecutor's office refuse to start investigation stating that there is no criminal offense. In such a case, within ten days, a person should file a claim to the local court against the inaction of the investigator or the prosecutor in accordance with the procedure provided for in Art. 306 of [the CPC]. (Ukraine 20 Nov. 2017)

In correspondence with the Research Directorate, a legal expert at the Centre of Policy and Legal Reform (CPLR), an organization that supports "the implementation of the institutional reforms [that will provide] democracy, rule of law and proper governance in Ukraine" (CPLR n.d.), indicated that:

There are 4 types of situations when decisions, actions or omissions (acts) of the police can be appealed in the Ukrainian legal system:

1. Appeals against decisions and actions of the police as an administrative act may be carried out on the basis of a complaint to the higher police chief in the general procedure established by the Law on the National Police of 2015. Such a complaint can be filed by any private person or official.
   
   Also, administrative acts of the police may be appealed by the interested person by submitting an administrative claim to the administrative court not later than 6 months from the date of the relevant act in accordance with the procedure established by the Code of Administrative Proceedings of 2005. In October 3, 2017, the Parliament adopted a new edition of the Code of Administrative Procedure, which awaits the signature of the President.
   
   
2. Appeals against decisions and actions of a police officer as a disciplinary offense shall be carried out in accordance with the procedure established by the Disciplinary Regulations of the Internal Affairs Bodies of Ukraine of 2006. A disciplinary complaint against the actions or omissions of a policeman can be filed by any person. Disciplinary punishment is imposed by the higher police chief only on the basis of the results of the internal investigation.
   
   
3. Appeals against decisions and actions of the police officer as procedural violations during the pre-trial investigation is conducted in accordance with the procedure established by the Criminal Procedure Code of 2012. According to Article 36 of the Code of Criminal Procedure, the prosecutor as a procedural head of the investigation is authorized to cancel any decision of the police investigator during the entire investigation period on the basis of information obtained from him or herself or from other sources.
   
   According to Article 303 of the Code of Criminal Procedure, private persons can appeal against the decisions or actions of the police investigator in court. The Code limits the list of decisions for appeal to 8 types, for example, the refusal of the police to initiate an investigation of crime, stop investigation, close an investigation, etc. The period for appeal is 10 days from the moment of the commission of actions, decision-making by the police.
   
   
4. The investigation of the decisions and actions of the police officer as a crime is also conducted in accordance with the procedure established by the Criminal Procedure Code of 2012. Any person who has become aware of the facts of a possible crime has the right to file an application for a criminal infringement, which is subject to automatic registration in the Unified Register of Pre-trial Investigations and should be investigated (Article 214 of the CPC). The allegations of police offenses are investigated by the investigative units of the prosecutor's office.
   
   Since November 20, 2017, these cases had to be investigated by the State Bureau of Investigation, but it has not been created yet. (CPLR 14 Nov. 2017, italics in original)

According to the article regarding the passing of Amendments to the Constitution of Ukraine in 2016 by CMS Law-Now,

[t]he amendments also provide that the many of the current functions of the Prokuratura [State Prosecutor's Office] will be transferred to other state authorities, some of which are only in their nascent stages of development. In particular, the function of operational pretrial investigation is to be vested, inter alia, in the National Anticorruption Agency and the State Investigation Agency. (CMS 9 June 2016)

Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

In correspondence with the Research Directorate, the program director at UHHRU stated the following:

In accordance with Part 4 of Art. 216 and Part 1 of the Transitional Provisions of the Criminal Code of Procedure of Ukraine, [a crime] committed by a police officer [is] investigated by the investigating authorities of the prosecutor's office.

Consequently, in connection with the loss of the functions of general supervision by the prosecutor's offices, we can conclude that not every inactivity of the police officer may be subject to appeal to the prosecutor, but only that containing the content of the criminal offense (crime). These may be crimes provided for, for example, Article 364 of the Criminal Code (abuse of power) or Article 367 (negligence).

In this case, in particular, if the result of the inactivity of the police officer was a serious harm to the "rights protected by the law, or the interests of individual citizens, or public interests or interests of legal persons," we recommend contacting the prosecutor with a statement (report) about the crime. (UHHRU 13 Nov. 2017)

In correspondence with the Research Directorate, a representative of Insight, a Ukrainian LGBT organization with a team of civil activists, lawyers, psychologists and journalists (Insight n.d.), indicated the following:

The procedure for appealing decisions, actions or omissions of an investigator or prosecutor during a pre-trial investigation is determined by Chapter 26 of [the Criminal Procedure Code]. ... The list of decisions, actions or inactivity of the investigator or the prosecutor during the pre-trial investigation is determined by Article 303 list [of the Criminal Procedure Code]. In particular, the inaction of the investigator, the prosecutor, which consists in the failure to provide information about a criminal offense to the Unified Register of Pre-trial Investigations after the receipt of the application or notification of a criminal offense, may be appealed. [The] information must be submitted within 24 hours after receipt by the authorized body of the application or notification of a criminal offense.

[Within] ten days the person has the right to apply to the investigating judge with a complaint about the decision, action or inaction of the investigator or prosecutor (Article 304 of the Criminal Procedure Code): if the complaint meets the requirements of the law, the judge opens the proceedings and decides on the appointment of the complaint to the court. The complaint should be considered not later than 72 hours from the moment of its receipt in court (with the exception of the complaint about the decision to close the criminal proceedings). For the consideration of a complaint against a decision to close a criminal proceeding, the law sets a five-day time limit (Article 306 of the Criminal Procedure Code). According to the results of consideration of complaints about the decision, action or inaction of the investigator, the prosecutor is issued: 1) a ruling to cancel the decision of the investigator or prosecutor in case of recognition of it as unlawful; 2) a commitment to terminate an action if it is declared unlawful; 3) an obligation to perform a certain act in the event of a declaration of inactivity to be illegal; 4) refusal to satisfy the complaint. (Insight 17 Nov. 2017)

In correspondence with the Research Directorate, a professor at the University of Toronto, specializing in post-Soviet politics and in the politics of law and courts in various countries including Ukraine, indicated that

[a] crime victim whose report did not lead to registration in the "unified register of crimes" (edinnyi reester) - a novelty in the new [Criminal Procedure] Code - has the right per Article 303 of the [CPC] to complain about "inaction by the investigator or prosecutor." The article does not mention to whom or how, but a knowledgeable informant in Ukraine tells me that it is an "investigative judge" (sledstvennyi sudia) who hears the complaint. Of course, if a crime has not been registered, then no investigation or inquiry has begun, there is no particular investigative judge already assigned to the case. Maybe, a particular one in a given location is assigned to hearing such complaints, perhaps on rotation. Or it may be a matter of who is free. To make the complaint, however, is not simple. The victim must file a procedural document that specifies all the details about lack of police activity and how it violates the law, and this normally is prepared by a lawyer (advocate). The Investigative judge does have the right to order the opening of an investigation or inquiry. There is a further gap in the law. Notice that Article 303 refers to inaction by an "investigator," a legal officer in charge of developing a case file (who could work for the MVD [Ministry of Internal Affairs] or the prosecutor's office, inter alia). It does not mention inaction by police operatives of any kind, including detectives, or the ordinary police officers whom a crime victim would normally approach. If such a police person were to fail to take the steps needed to register a crime, even informing an investigator (say in a domestic dispute or a harassment situation—the typical response), then it is not clear how the victim should proceed. My guess is that there might be an intermediate stage, the need to complain first to a superior police officer and to get an investigator to decline to overrule the ordinary policeman - before the complaint could be filed with the investigative judge. But this may also be a matter of local practice.

Complaining to the prosecutor's office [is] always an option (as it was before 2012) because prosecutor's supervision of the police remains in the 2014 Law on the Public Prosecutor's Office, but not necessarily a promising one. Prosecutors have a lot of new criminal work to occupy their time in addition to trials, including approval of plea and settlement agreements (two innovations in the new Code, which require consent of victims). They must also handle cases of real police misconduct (e.g., claims of torture or illegal arrest), so while they have the legal power to require the investigation of a crime, they are not inclined to second guess police in decisions about charging and investigation, unless circumstances force them to so do (e.g. publicity about the incident in the media, traditional or social). In theory, complaining to the prosecutor's office does not require legal assistance, and a handwritten document produced at a prosecutor's office meets the legal requirement. But this might not prove effective.

[Review] of a complaint either by an investigative judge or a prosecutor does not usually mean a hearing, but rather an office review of the documents submitted. So the provision of evidence of police inaction is crucial.

The new [CPC] reads well from the vantage point of the victim, and provides many rights (e.g., access to information about the investigation and trial) once a full investigation has been launched. From a legal point of view, the victim becomes a player in the process. But this legal status does not begin until a crime has been registered (decision one) and a formal investigation (or inquiry for lesser offenses) has been launched (decision two). Because of this, the victim does not have much of a legal position at the time of reporting a crime even though the police are supposed to enter the reports in the Register. They tend not to do so, if there is no obvious suspect or the evidence is weak or the offense is something that they do not consider criminal (e.g. domestic abuse).

… [C]riminal procedure law in Ukraine does a lot for victims' rights, but its impact is limited by the attitudes and conduct of police. Moreover, the popular view of police remains skeptical at best, and many in Ukraine believe that complaining to and about the police is futile. (Professor 20 Nov. 2017)

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

Centre of Policy and Legal Reform (CPLR). 14 November 2017. Correspondence from a legal expert to the Research Directorate.

Centre of Policy and Legal Reform (CPLR). N.d. "About CPLR." [Accessed 14 Nov. 2014]

CMS. 9 June 2016. Law-Now. "Amendments to the Constitution of Ukraine Passed: Ukraine Takes a Major Step Towards a European System of Justice." [Accessed 9 Nov. 2017]

CMS. N.d. Law-Now. "About Us." [Accessed 14 Nov. 2017]

Insight. 17 November 2017. Correspondence from a representative to the Research Directorate.

Insight. N.d. "About Us." [Accessed 20 Nov. 2017]

Professor, University of Toronto. 20 November 2017. Correspondence with the Research Directorate.

Ukraine. 20 November 2017. Embassy of Ukraine to Canada. Correspondence from an official to the Research Directorate.

Ukrainian Helsinki Human Rights Union (UHHRU). 13 November 2017. Correspondence from a program director to the Research Directorate.

Ukrainian Helsinki Human Rights Union (UHHRU). 4 April 2016. "Our Mission and Background." [Accessed 14 Nov. 2017]

Additional Sources Consulted

Oral sources: Amnesty International Ukraine; Associate Professor specializing in Comparative Judicial Politics at McGill University; Centre of United Actions; Council of Europe – Office in Ukraine; EU – European Commission; Kharkiv Human Rights Protection Group; Lawyer at Kyiv City Council of Lawyers; OSCE – Office in Ukraine; Transparency International Ukraine; Ukraine – Commissioner for Human Rights, Embassy to the United States, Prosecutor General's Office; Ukraine Democracy Initiative; Ukrainian Legal Aid Foundation; UN – United Nations Information Centre in Ukraine.

Internet sites, including: Al Jazeera; Amnesty International; Anti-Corruption Action Centre; BBC; Carnegie Europe; Council of Europe; ecoi.net; EU – External Action Service; Factiva; Freedom House; Kharkiv Human Rights Protection Group; Kyiv Post; Radio Free Europe/Radio Liberty; Reuters; Transparency International; Ukraine – Commissioner for Human Rights, Prosecutor General's Office; UN – OHCHR, Refworld, UNHCR; US – Department of State.