Answers to the questionnaire

“Alternatives to prosecution in Council of Europe member states”

To question 1

1.1           Does your country follow a system of mandatory or discretionary prosecution?

The analysis of directions of prosecutor’s supervision in the prescribed by the Law fields of legal regulation is the evidence of impossibility to point out its belonging to the proposed by the questionnaire systems of prosecution – mandatory or discretionary.

For realization of different supervision functions the Law under one circumstance envisage the right of a prosecutor to act and under other circumstances it is his duty to act.

For example, in the process of realizing the supervision over law observance and law application during the reveal of an offence, the prosecutor or his deputy is granted a right (not a prescribed duty);

-                 to lodge a protest against the acts of the Prime Minister of Ukraine, the Government, the Council of Ministers of the Autonomous Republic of Crimea, the ministries and other central bodies of the executive power, executive bodies of local councils, enterprises, institutions, organizations, civil associations, decisions and actions of the officials; to present a petition with regard to the decision of the local councils depending from the character of an infringement.

The same situation takes place in the process of performing the supervision over observance of laws in the course of execution of judgments in criminal cases, as well as in application of other measures of coercion related to the restraint of personal liberty of a citizen. The Law (Art.44) grants a right to the prosecutor to visit at any time the detention places, the detention centers, the institutions where the accused serve their sentence, the institutions for coercive treatment and reeducation, to question the persons who are held there, as well as the right to be acquainted with the documents which serve the basis for the arrest, detention and accusation or application of coercive measure with regard to these persons.

     However, in case of a disclosure of a person who is held in the detention centers illegally or held in the institution where the coercive measures are applied, the Law obliges a prosecutor to provide his immediate release. 

In the process of supervision over observance of laws by authorities that conduct criminal, preliminary and pre-trial investigation, and in accordance with the Art. 25 of the Code of Criminal Procedure of Ukraine the prosecutor is obliged at all stages of criminal legal procedure  to take the appropriate measures prescribed by the Law in time with the purpose to eliminate any violations of law, no matter who are the subject for such violations. For example, while conducting the supervision over legal basis for initiation of proceedings and in case of a reveal of the fact that the criminal matter was initiated without a legal basis the prosecutor must close it; and in case if the investigatory actions were not started with regard to such criminal matter, a prosecutor must recall the decision on its initiation. In case of a groundless refusal by the investigation body of inquiry or a prosecutor to initiate a criminal matter – the prosecutor is obliged to recall the decision of the investigator of the inquiry body and must to initiate a criminal matter (Art.100 of the Code of Criminal Procedure of Ukraine) etc.

The prosecutor has no right to release from responsibility the persons who committed a crime – it is the prerogative of the court. Before, till the June, 2001, the prosecutor had these powers, but then the Law deprived him of these rights.

1.2           Has the situation changed during the last two years or is a change envisaged?

Section 1, subsection 1 of the Plan of activities for carrying out of duties and obligations of Ukraine which arise from its membership in the Council of Europe, approved by the Decree of the President on 20.01.2006 № 39, envisage the working out of the Draft Law on amendments to the Constitution of Ukraine concerning the Public Prosecutor’s Office, taking into account the conclusions of the Venice Commission and section 14 of Resolution of PACE № 1466 of 05.10.2005.

Among other things, the elaborated project proposes:

-                 to transform the function of supervision over the observance and application of laws (section 9 of chapter XV “Transitional provisions”) into the function of protection of rights and freedoms of a person and citizen, of state and public interests and to unite with the existing function of representation of the interests of a citizen or of the State in court.

-                 to abolish the function of “supervision over the observance of rights and freedoms of a person and a citizen, observance of Laws with regard to these issues by the bodies of executive power, bodies of local government, its officials and functionaries”,  which is envisaged by section 5 of Art.121 of the Law.

1.3  In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006?

         In Ukraine in 2005 – 2006 there were revealed 451691 persons who perpetrated the offences of different nature. 431259 persons were brought to criminal responsibility, that is 92% of total quantity of persons who committed crimes.

         20415 persons were released from criminal responsibility during the aforementioned period, that is 4,5 %.

To question 2 and 3

         “In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged? Who decides on this choice?”

         No. According to the requirements of subsection 1 of section 1 of Art. 65 of the Criminal Code of Ukraine, the Court impose a penalty upon the measures prescribed by the sanction of article of the Special part of this Code which envisage responsibility for the committed crime.

With regard to the juveniles who committed minor offence for the first time, the Criminal Code of Ukraine (Art. 97) envisage the special kind of discharge from criminal liability – “with imposition of compulsory reformation measures” which according to section 2 of Art. 105 of Code include: warning; restriction of leisure time and special requirements to a minor's conduct; placing a minor under supervision of his/her parents or foster parents, or school teachers or colleagues upon their consent, or other individuals at their request; obliging a minor, who has attained 15 years of age and possesses any property, money or has any earnings, to compensate any pecuniary damages; placing a minor in a special educational and correctional institution for children and teenagers until the minor's complete correction.

Compulsory reformation measure is not a criminal punishment, though it is related to certain restrictions for juveniles.

The application of reformation measures is envisaged not only for juveniles who are subjects of criminal responsibility but also for the persons who committed a socially dangerous act that classifies as an act provided for by the Special Part of this Code, before he/she attained the age of criminal liability. (section 2 of Art.97 of the Criminal Code).

         The order of discharge from criminal liability with the application of reformation measures with regard to juveniles is regulated by Art.9 of the Code of Criminal Procedure of Ukraine. The order of resolving of cases of socially dangerous actions which were committed by person who didn’t attain the age of criminal liability, is regulated Art.7 – 3 of the Code of Criminal Procedure of Ukraine.

To the question 4

“Are there criteria for abandoning the criminal prosecution approach?”

The notions of “criminal prosecution” and “abandoning the criminal prosecution” aren’t peculiar to the Ukrainian legislation. They have no generally accepted definition.

However, taking into account the content put into these notions by the majority of the foreign legislators, the institution of discharge from criminal liability can be given in the quality of the national analogue of abandoning the criminal prosecution.

We must admit that along with this institution a separate branch of the criminal law system of Ukraine is also made by such institutions as:

-         discharge from punishment;

-         discharge from serving of punishment.

According to the rule of Article 44 of this Code a person who committed a criminal offense, shall be discharged from criminal liability in cases prescribed by this Code, and also on the grounds of the Law of Ukraine on amnesty or an act of pardon.

The discharge from criminal liability in cases prescribed by this Code shall be exercised exclusively by court. The procedure of discharge from criminal liability shall be established by law.

The Criminal Code of Ukraine envisages a possibility of discharge from criminal liability of a person, who has committed a minor criminal offense for the first time, if he/she:

-         having committed that offense,sincerely repented, actively facilitated the detection of the offence, and fully compensated the losses or repaired the damage inflicted (in view of effective repentance Article 45 of the CC);

-         reconciled with the victim and compensated the losses or repaired the damage inflicted (in view of reconciliation of the offender with thevictim Article 46 of the CC).

Article 47 of the Criminal Code of Ukraine allows a possibility of discharge from criminal liability of a person, who has committed a minor criminal offense or an offense of medium gravity for the first time and sincerely repented for admission by bail on request of the collective body of an enterprise, institution or organization on condition that such person, within one year of his/her admission by bail, will not fail the trust of the collective body, avoid measures of correctional nature or break public peace.

Article 48 of this Code gives a possibility to discharge from criminal liability of a person, who has committed a minor criminal offense or an offense of medium gravity for the first time, if it is found that at the time of investigation or trial, due to a change of situation, the act committed by that person has lost its socially dangerous nature or that person has ceased to be dangerous to the public.

 Separately, Article 97 of the Code envisages a possibility of discharge from criminal liability of a minor who committed a minor offense for the first time, may be discharged from criminal liability, provided that his reformation is possible without punishment. In such cases, a court shall impose compulsory reformation measures envisaged by paragraph 2 of Article 105 of this Code.

Article 49 of the Coderegulates the conditions of discharge from criminal liability due to the limitation period. Specific features of discharge of minors from criminal liability are regulated by Article 106.

Besides all the above stated, a number of articles of the Criminal Code, which define the essential elements of the specific offense and punishment for this offense, also envisage discharge from criminal liability under certain conditions.

Thus, according to the requirements, from criminal liability is discharged:

paragraph two of Article 111 High treason” - a citizen of Ukraine, if he has not committed any acts requested by a foreign state, a foreign organization or their representatives and voluntarily reported his ties with them and the task given to government authorities;

paragraph two of Article 114 “Espionage” – a person who has stopped any such activities as provided for by paragraph 1 of this Article, and voluntarily reported what has been done to government authorities, as the result of which the measures taken have been sufficient to prevent any prejudice to the interests of Ukraine;

paragraph three of Article 175Failure to pay salary, scholarship, pension or any other statutory payments” – a person, if he/she has paid to citizens salaries, scholarships, pensions, or any other statutory payments before he/she is criminally prosecuted;

paragraph four of Article 212Evasion of taxes, fees or other compulsory payments” - a person who committed an act provided for by paragraph 1 and 2 of this Article for the first time, if he/she has paid taxes, fees (compulsory payments) and has indemnified the State for the damage caused by late payment (fiscal penalties, fines) prior to the institution of a criminal case against him/her;

paragraph four of Article 212-1Evasion of insurance contributions for compulsory State pension insurance” – a person who committed an act provided for by paragraphs 1 or 2 of this Article for the first time, if he/she has paid insurance contributions for compulsory State pension insurance, and indemnified the Pension Fund of Ukraine for the damage caused by late payment (fiscal penalties, fines) prior to the institution of a criminal case against him/her;

paragraph two of Article 255 Creation of a criminal organization” – a person, other than an organizer or leader of a criminal organization, for the offense created by paragraph one of this Article, if he/she has voluntary reported the creation of the criminal organization or his/her participation in it, and effectively assisted in uncovering this organization.

Paragraph two of Article 258-3 “Creation of a terrorist group or terrorist organization”; paragraph 6 of Article 260 “Creation of paramilitary or armed formations, unforeseen by law”; paragraph 3 of Article 263 “Unlawful handling of weapons, ammunition or explosives”; paragraph 4 of Article 289 “Unlawful appropriation of a vehicle”; paragraph 4 of Article 307 “Illegal production, making, purchasing, storage, transportation, sending or sale of narcotics, psychotropic substances or their analogues”; paragraph 4 of Article 309 “Illegal production, making, purchasing, storage, transportation or sending of narcotics, psychotropic substances or their analogues not for selling purposes”; paragraph 4 of Article 311 “Illegal production, making, purchasing, storage, transportation or sending of precursors”; paragraph 3 of Article 369 “Giving a bribealso envisage discharge from criminal liability under certain conditions.

Discharge from criminal liability is regulated by Chapter XII of the Criminal Code of Ukraine (discharge from punishment on probation; parole and others are envisaged).

Specific features of discharge from criminal liability and punishment of minors are envisaged by Chapter XV of the Code (discharge from punishment on probation, subject to compulsory correctional measures, parole etc).

To Question 5

“Could it happen that a serious offence escapes any prosecution because of alternative measures?”

Depending on the gravity, criminal offenses shall be classifiedin accordance with the requirements of Article 12 of the Criminal Code of Ukraine as:

-         minor offenses;

-         medium grave offenses;

-         grave offenses;

-         and special grave offenses.

“Serious offences” are not included into this classification; this complicates accordingly to give a simple answer to the question raised by the questionnaire.

Cases of discharge from criminal liability (“abandoning the criminal prosecution”) are revealed in the answer for the question 4 of the questionnaire.

In the quality of “alternative to criminal prosecution” we can point out discharge from criminal liability in view of reconciliation of the offender and the victim, envisaged by Article 46 of the Criminal Code of Ukraine (a specific prototype of institution of mediation that is considered to be such an alternative).

According to the requirements of the indicated article, discharge of a person from liability in view of reconciliationwith the victim is not possible for any offense, but only for that, put into the category of minor offenses. Thus, in conformity with Article 12 of the Criminal Code of Ukraine this is an offense, for which a punishment in the form of imprisonment for a term of not more than 2 years, or other, lighter punishment is prescribed.

To the question 6

“Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?”

According to Article 49 of the Code of Criminal Procedure of Ukraine a victim is a person who suffered moral, physical or property damage of the offense. A person prosecuting an inquiry, an investigator and a judge shall pronounce judgement, and court shall take a decision on recognizing a citizen as a victim or refusing that.

A citizen recognized as a victim of an offense, shall have a right to give evidence of the matter, to show proofs; to submit an application; to familiarize with all the materials of the case after the completion of the pre-trial investigation, and in cases where a pre-trial investigation was not carried out, after prescribing the matter to examination at court; to participate in court’s consideration; to file challenges; to appeal against actions of a person prosecuting an inquiry, an investigator, a prosecutor and a court, and to appeal against a court’s resolution or decisions and judgments, and in the presence of appropriate grounds – to provide security.

In cases defined by this Code a victim shall have a right to prosecute personally or via his/her representative during court’s consideration. A victim will be able to participate in court’s debates.       

In cases on the offences that caused death of a victim, his relatives share the rights envisaged by this article.

In conformity with the requirements of Article 7-1 of the Code of Criminal Procedure of Ukraine, in case of rendering a decision to refer the matter to the court in order to resolve the question to close proceedings in criminal matter in view of effective repentance; of reconciliation of the offender, the accused and the victim; of compulsory correctional measures to a minor on the basis of Article 447 of  this Code; of the admission by bail on request of the collective body of an enterprise, institution or organization; of limitation period, envisaged by paragraph 1 of Article 7-1 of this Code, a prosecutor or an investigator must familiarize an accused, his/her advocate, a victim or his/her representative with the mentioned decision, and in case of their request – with all the materials of the matter.

Article 12 of this Code assigns the right of a victim to appeal against court’s decision on discharge of a person from criminal liability due to a change of situation,effective repentance, and impose of compulsory correctional measures to a minor, admission of a person by bail and limitation period.

According to the rule of this Article while resolving the question to close a criminal matter in conformity with Articles 7, 7-1, 7-2, 8, 9, 10, 11-1 or during the application of compulsory correctional measures to a minor according to Article 7-3 of this Code, the court must find out the opinion of the victim and in case of closing of the matter to inform the victim and his/her representative about this fact. The victim or his/her representative can appeal against the decision on closing of the matter according to the order of appeal.

To the question 7

         “Given that the response chosen rise to obligations in respect of the persons subjected to it – such as the reparation of damage – are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?

In conformity with Article 51 of the Criminal Code of Ukraine the community service or correctional labor are types of punishment which may be imposed by a court on persons convicted of criminal offenses.

         The punishment is a coercive measure imposed in a judgment of court on behalf of the State upon a person found guilty of a criminal offense and consists in restraint of the sentenced person's rights and freedoms secured by law (Article 50 of the Code).

         In cases provided by the law on judgment of court you can appeal or refer to the Court of Cassation. The appropriate degrees of jurisdiction (courts) are delegated powers concerning reconsideration of judgment of court in the procedure of appeal and cassation.

To the question 8

         “Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victim’s interests?”

        

         With the purpose of stimulation of correction of the convicted, prevention of commitment of crimes repeated by an offender, adaptation him to rules of social behavior and to requirements concerning maintenance of law and order in criminal legislation the institute of discharge from punishment and from serving it acts in Ukraine.

         The essence of this institute consists in that fact that the convicted receives on some conditions a chance to discharge from real serving a sentence, exercised by court, the further sentence part of which he has already passed, to expect on substitution of an imposed punishment by a milder punishment, diminution to maximum bound of the punishment provided by the sanction of an Article.

         Types of discharging from punishment and from serving it are envisaged by the Criminal Code Ukraine (it is: discharge on probation (Article 75), parole (Article 81) and others).

Translators of the Prosecutor General’s Office of Ukraine:                                           A.Mayatska

O.Syva

A.Shumeiko