Answers to questions set forth in the questionnaire “The Rights of Victims, Witnesses and Vulnerable Persons” for the preparation of the Consultative Council of European Prosecutors (CCPE) Opinion No. 12
1.1 “Is there in your country a definition of a victim or a witness of crime? If yes, is it established in the law or other legal instruments?”
Criminal procedural legislation of Ukraine has definitions of “victim” and “witness”, which are defined by the Criminal Procedural Code of Ukraine.
Special laws in the field of combating human trafficking and violence prevention separately designate a “person, who suffered from human trafficking (human trafficking victim)” and a “victim of domestic violence”.
1.2 “Are there in your country special regimes for victims of certain types of crimes, for example, domestic violence, sexual abuse, trafficking in human beings? If yes, can you list them?”
Special regimes for victims of certain kinds of crimes are established by laws, which provide for a certain set of measures for protection of rights of such people by the state.
For instance, Article 14 of the Law of Ukraine “On Countering Human Trafficking” defines that a person, who suffered from human trafficking, shall have the right to receive a special status of a “person, who suffered from human trafficking” which provides for personal security, respect and the right to obtain free of charge:
1) information about his/hers rights and possibilities in the language known to such a person;
2) medical, psychological, social, legal and other necessary assistance;
3) temporary placement, if a person wishes to and has no housing, in establishments that provide assistance to persons, who suffered from human trafficking, for a period of up to three months, which may be prolonged in case of need by a decision of local state administration, in particular due to participation of a person in a criminal process as a victim or a witness;
4) compensation for non-pecuniary and material damage for account of persons, who did this damage, in the procedure laid down by the Civil Code of Ukraine;
5) one time material assistance in the procedure laid down by the Cabinet of Ministers of Ukraine;
6) assistance in employment, realisation of the right to education and professional training.
Article 17 of the Law of Ukraine “On Preventing Domestic Violence” provides that the state shall guarantee the defence of rights and legitimate interests of the family members, in respect of whom the measures for prevention of domestic violence are being taken.
This law designates such special measures for prevention of domestic violence:
- official warning to a family member, who committed violence, of inadmissibility of committing it if there are no elements of crime in actions of such family member;
- passing a correctional program by a family member, who committed violence;
- placement of a family member, who received an official warning of inadmissibility of domestic violence, under preventive supervision;
- issue of a restraining order to a person, who committed domestic violence, by employees of competent units of the National Police upon approval by the Head of the appropriate body of the National Police and a prosecutor;
- imposing a pecuniary penalty on persons, who committed domestic violence, for reimbursement of expenses for maintaining the victims of domestic violence at specialised establishments for victims of domestic violence.
1.3 “Is there in your country a definition of vulnerable persons, either in general sense, or particularly within the framework of criminal procedure? If yes, is it established in the law or other legal instruments”
The definition of a “vulnerable person” is absent from the Ukrainian legislation, criminal procedural in particular.
Therewith, legislative and other statutory instruments, which regulate issues of social protection of persons, enumerate socially vulnerable categories of citizens, concerning whom the state provides such protection (Laws of Ukraine “On State Social Assistance to Persons, who Have no Right to Pension, and People with Disabilities ”, “On State Assistance to Families with Children”, “On State Social Assistance to Needy Families”, etc.).
As a rule, the law designates such persons as pensioners, people with disabilities, families with children, orphans, unemployed, victims of Chornobyl disaster, etc., who are in need of state assistance.
2.1 and 2.2 “Are there in your country specific rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, in addition to human rights in general?”, “If yes, is it established in the law or other legal instruments?”
In the framework of criminal process, in addition to human rights, some specifics are provided for separate categories of people.
For instance, Article 10 of the Criminal Procedural Code of Ukraine defines that in cases and in order provided for by the Code, certain categories of people (minors, foreigners, people with mental and physical disabilities, etc.) shall use additional guarantees during the criminal proceeding.
Additional amount of rights for certain categories of people is laid down by Laws of Ukraine “On Free Legal Assistance”, “On Provision of Security of Persons, Who Take Part in the Criminal Proceeding”.
Besides, the scope of the Law of Ukraine “On Procedure of Reimbursement of Damages Suffered by the Citizen from Illegal Actions of Bodies that Conduct Investigative and Search Activities, Bodies of Pre-trial Investigation, Public Prosecution Service and Court” includes all categories of people and the law provides for their right to demand reimbursement of damages from illegal actions of law enforcers.
2.3 “Please enumerate briefly these specific rights (e.g. the rights to protection, to be treated fairly and with dignity, to be notified, to be present and to be heard at court proceedings, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights)”.
The Criminal Procedural Code of Ukraine provides for conducting a criminal proceeding in a closed court session during the whole court proceeding or its part in such cases:
- if defendant is a minor;
- if a case about the crime against sexual freedom or sexual immunity of a person is heard;
- if it is necessary to prevent disclosure of information about private or family life or facts that degrade person’s dignity.
Other rights laid down by special laws we shall include:
- the right to free legal assistance (for subjects designated by law - persons, whose average monthly income is lower than the established minimum, orphans, internally displaced people, refugees, veterans, etc.);
- the right to provision of security of persons, who take part in criminal judicial proceedings (the right to protection of life, housing, health and property of these persons from illegal encroachments in order to create necessary conditions for proper administration of justice).
2.4 “How are victims, witnesses and vulnerable persons informed of their rights? Are there any formal arrangements or informal mechanisms, free access to relevant information and databases etc.?”
Criminal procedural legislation of Ukraine does not define specifics of informing vulnerable persons of their rights.
In its turn, the Criminal Procedural Code of Ukraine provides for formal ways of informing a person of his/hers rights, among the other things as a suspect, a defendant, a victim with the aim of respecting their rights as of participants of a criminal proceeding.
Under general rule, established by Article 42 of the Criminal Procedural Code of Ukraine, a suspect, a defendant shall have the right to be clearly and timely informed of his rights, provided for by this Code, and to receive their explanation. A suspect, a defendant is served with a handout about his/hers procedural rights and obligations simultaneously with being informed about them by a person, who conducts such service.
Article 55 of the Criminal Procedural Code of Ukraine defines that a victim is served with a handout about his/hers procedural rights and obligations by a person, who has accepted the statement about committed criminal offence. A victim shall have the right to know the subject-matter of suspicion and accusation, to be informed about choosing, change or cancellation of measures of support to criminal proceeding and finishing pre-trial investigation against a suspect, defendant, and victim is also obliged not to disclose without permission of an investigator, prosecutor or court the information, of which he became aware due to his participation in the criminal proceeding and which constitutes a secret protected by law.
Article 135 of the Criminal Procedural Code of Ukraine defines the procedure for serving summons against a minor, which, as a rule, are served to his/hers father, mother, adoptive parent or legal representative.
Summons against a partially incapacitated person are served to his/hers guardian.
2.5 “What kind of penalties and sanctions are established for violation of these rights?”
The Criminal Code of Ukraine contains a set of Articles, which establish a
criminal liability for committing crimes in the sphere of professional activities and crimes against justice:
- Article 373 “Compelling to testify”;
- Article 374 “Violation of the right to defence”;
- Article 380 “Failure to take protective measures concerning persons taken under protection”
- Article 381 “Disclosure of information about protective measures concerning persons
- taken under protection”;
- Article 387 “Disclosure of information of investigative and search activities, pre-trial investigation”.
Most of these articles of the Criminal Code of Ukraine, depending on the aggravating elements, belong to medium grave offences that provide for sanctions in the form of imprisonment for a term up to five years.
2.6 “Are there in your country specific rights of vulnerable persons due to their age (children, elderly people) or disability (physical or mental), either as victims or as witnesses?”
The Criminal Procedural Code of Ukraine defines the procedure of criminal proceeding against minors (persons who have not reached 18 years of age) taking into consideration certain specifics, which include:
- conduct of the criminal proceeding against minor by an investigator, who is specially authorised to conduct pre-trial investigation against minors;
- obligation of an investigator, investigating judge, prosecutor, court to conduct procedural actions in order, which least disrupts usual way of life of a minor and corresponds his age and psychological peculiarities;
- participation of legal representative in procedural actions;
- interrogation with presence of defence lawyer;
- severance of a criminal offence committed by a minor in a separate criminal proceeding.
Moreover, Article 491 of the Criminal Procedural Code of Ukraine stipulates that by the decision of an investigator, prosecutor or court participation of a legal representative, pedagogue, psychologist or doctor may be provided during interrogation of minor suspects or defendants, who have not reached the age of 16.
The Criminal Procedural Code of Ukraine defines certain specifics of criminal proceedings with participation of minors with mental disabilities.
For instance, a complex psychological-psychiatric examination is prescribed in case of need to solve the question of existence of a mental illness or mental retardation of a minor suspect or defendant and to define his ability to understand fully or in part the meaning of his actions and to control them in a certain situation.
At the same time, a psychological examination may be prescribed to define the developmental level, other social-psychological traits of a person of a minor suspect or defendant, which have to be taken into consideration when imposing a penalty and choosing a measure of pedagogical type.
2.7 “When a decision in criminal matters is likely to affect the rights or the situation of a vulnerable person, is it brought to the attention of other bodies dealing with the rights of that person (e.g. a measure prohibiting contact with his wife for a husband in the event of domestic violence brought to the attention of the court responsible for ruling on the custody of children)?”
Article 496 of the Criminal Procedural Code of Ukraine stipulates that representatives of a Service for Children Affairs and of a unit of internal affairs bodies, the competence of which includes issues concerning minors, shall take part in the trial of criminal proceedings against minors.
Representatives of guardianship and custodianship agencies, institutions and organisations, under whose guardianship or custodianship a disabled or partially incapacitated person is, may be involved as legal representatives.
Therewith, Article 508 of the Criminal Procedural Code of Ukraine stipulates that a court may impose such a preventive measure as placement under guardianship by guardians, close relatives or family members with compulsory medical supervision, against a person in relation to whom application of coercive measures of medical character is planned or the issue of their application was considered.
2.8 “Can such vulnerable persons bear testimony alone or only following authorisation by their legal representatives, and in this latter case, in what conditions?”
Article 44 of the Criminal Procedural Code of Ukraine defines that if a suspect, defendant is a person, who is found to be disabled or partially incapacitated in the legally established way, a person’s legal representative shall be involved in the procedural action together with the person. This Code provides that a legal representative uses procedural rights of a person, whose interests he is presenting, except for procedural rights realisation of which is performed directly by a suspect, defendant and cannot be assigned to a representative.
2.9 “Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons?”
Article 63 of the Constitution of Ukraine guarantees that the person shall not bear liability for the refusal to testify or provide explanations concerning himself, members of his family or close relatives, who are defined by the law. This article extends its scope on all categories of persons without exceptions.
2.10 “Who proceeds to the evaluation of vulnerable persons and how the risk is assessed? Can the vulnerable person play a role in assessing such a risk? Which protective measures may be adopted and by whom?”
The criminal process provides for obligation to conduct an examination to define the mental state of a suspect if there is information which casts doubt on sanity, partial insanity of a person.
According to Article 509 of the Criminal Procedural Code of Ukraine an investigator, a prosecutor is obliged to involve an expert (experts) in conducting a psychiatric examination in case, if during criminal proceeding are established such facts which give reasons to believe that a person was insane or partially insane while committing a dangerous act or committed it in a sane state, but after committing it became mentally ill so the person is deprived of an ability to understand his/hers actions or to control them.
2.11 “Are there, in your country, any special procedures that allow testimony to be filmed, recorded and/or given from behind a screen? If so, in what circumstances can this occur?”
Article 336 of the Criminal Procedural Code of Ukraine provides for conducting procedural actions in the videoconference mode during trial from another court room, including one that is outside the court premises (trial on a distance), in particular, if it is needed to provide security of persons, interrogate minor witness, victim.
Therewith, a person who is provided with protection, may be interrogated in the videoconference mode with such changes of appearance and voice, that it is impossible to recognise the person.
2.12 “How is the prevention of repeated victimisation ensured?”
Complex of measures for countering domestic violence is mentioned in the answer to question 1.2.
2.13 “Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?”
Article 26 of the Constitution of Ukraine guarantees that foreigners and persons without citizenship, who reside in the territory of Ukraine on a legal basis, enjoy the same rights and freedoms and are under same obligations as the citizens of Ukraine, except for exemptions established by the Constitution, laws or international treaties of Ukraine.
According to meaning of Article 3 of the Criminal Procedural Code of Ukraine the criminal proceeding according to the rules of this Code is conducted against any person, except for persons who enjoy diplomatic immunity. So, the Ukrainian criminal procedural legislation covers both citizens and foreigners.
3.1 “How are the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure enforced and guaranteed? What is the role of prosecutors in this matter?”
Activities of a prosecutor in the framework of a criminal process are regulated by the Criminal Procedural Code of Ukraine.
Article 36 of the Criminal Procedural Code of Ukraine, among other powers of a prosecutor, defines the right of a prosecutor to:
- to approve or deny approval of requests for application of coercive measures of medical or pedagogical character, amend indictment drawn up by investigator or mentioned requests, draw up an indictment or mentioned requests on his/hers own;
- to address to court with a request for application of coercive measures of medical or pedagogical character.
Due to the amendments to the Constitution of Ukraine, which became effective on 30.09.2016, prosecutor is deprived of the right to file a civil claim in the interest of citizens, who are unable to defend their rights on their own in the manner provided for by the Criminal Procedural Code of Ukraine and law, because of their physical or financial state, minor or great age, disability or partial incapacity.
3.2 “Is this role of prosecutors established in the law or other legal instruments? Is this role established in the rules of ethics and professional conduct of prosecutors?”
According to Article 17 of the Law of Ukraine “On Public Prosecution Service” a prosecutor is obliged to constantly adhere to the oath of a prosecutor, for violation of which he bears liability which is established by the law.
The Code of Professional Ethics and Conduct of Public Prosecution Service Employees, approved by the Order of the Prosecutor General of Ukraine № 123 of 28.11.2012, designates respect of rights and freedoms of an individual and citizen as one of the main obligations of a prosecutor.
In relations with other participants of court proceedings a prosecutor is obliged to stick to formal style of communication, demonstrate fidelity to principles and stamina, display tactfulness, impartiality and respect to all participants of trial, and has no right to engage in any relations with them out of process.
A prosecutor has to be attentive to guaranteeing the right of a person to defence, keeping the lawyer-client privilege, does not have to interfere with legally provided communication of a suspect, defendant with a lawyer.
3.3 “How is this role fulfilled in practice? How do prosecutors cooperate with other organs of state in fulfilling this role, and do prosecutors have supervisory or monitoring functions?”
Cooperation of prosecutors with other state organs is conducted in order and on grounds which are defined by law.
For instance, Article 3 of the Law of Ukraine “On Public Prosecution Service” defines that activities of a public prosecution service are based, among the other things, on grounds of inadmissibility of illegal interference of public prosecution service with activities of legislative, executive and judicial authorities.
As a result of legislative alterations, the public prosecution service is deprived of authority to conduct supervision over adherence to and application of laws, which also means participation in monitoring activities of state bodies and business entities.
3.4 and 3.5 “Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?”, “Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?”
Article 3 of the Law of Ukraine "On Provision of Security of Persons, Who Take Part in Criminal Judicial Proceedings” lists prosecutor as one of subjects, who are entitled to take a decision on application of security measures concerning persons, who need protection.
3.6 “Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?”
The Law of Ukraine “On Public Prosecution Service” does not determine the procedure of cooperation of prosecutors with other state bodies, private legal entities, non-governmental organisations.
Therewith, according to Article 3 of this Law, one of the basic principles of prosecutors’ activities is independence of prosecutors, which accounts for existence of guarantees of freedom from illegal political, material or other influence on a prosecutor in relation to taking decisions by him during execution of official duties.
3.7 “Do the prosecutors benefit from specific training on the protection of the rights of victims, witnesses and vulnerable persons? Does such training also involve prosecutorial staff and law enforcement agencies? Do the prosecutors play a role in carrying out such training?”
The question is out of competence of the Department.
3.8 “Any other relevant point you wish to raise.”
The measures on legislative level are being taken for preparation to ratification by Ukraine of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention).
Translator of the Prosecutor General’s Office of Ukraine: O. Melnychenko