Let’s Fight Racism Together

15.12.2008

The Basics on the Criminal Law of Ukraine

Filed under: Uncategorized — legalantiracism @ 08:29

This publication is not a textbook on criminal law of Ukraine and won’t make a lawyer out of its reader. In this section we will only analyze the basics of substantive and procedural criminal law of Ukraine through the perspective of the interests of the victim of racially motivated crime.

However, we hope that this handbook will be practically useful for both victims of the racist crimes and lawyers representing their interests in criminal proceedings. In particular, apart from the theoretical plan of action aimed at effectively bringing perpetrators to justice, this section contains references to relevant legal provisions. Furthermore, attached to this publication you will find templates of some procedural documents. Utilization of and reference to these materials may be useful for purposes of communication with law enforcement agencies and controlling the effectiveness of their work on the investigation of a racially motivated crime of which you are the victim.

Only an act which is recognized as a crime by national legislation may be considered as a crime[1]. The absolute range of socially dangerous acts which are recognized as crimes according to the Ukrainian legislation is contained in the Criminal Code (CC) of Ukraine. In this section we will analyze only those provisions of the CC of Ukraine which are of relevance for the purposes of this publication. This section will also analyze the specifics of the application of these provisions in practice.

The full text of the Criminal Code of Ukraine in available in the Internet:

1.      in English www.legislationline.org/documents/id/8929

2.      in Russian www.zakony.com.ua/ugolovnyj_kodeks_ukrainy.html

3.      in Ukrainian

http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2341-14

From the legal point of view, the grounds for criminal prosecution of the perpetrator(s) of a socially dangerous act must include the presence of all the constituent elements of the offense (corpus delicti/body of the crime) in such act. Namely, presence of all essential objective and subjective[2] features which characterize the act as a concrete type of crime is necessary. Elements (features) of the body of the crime are defined by the norms of both General and Special Parts of the Criminal Code of Ukraine[3]. Identification of the presence of the body of the crime in each particular act as well as defining the scope of the liability for its commitment (application of legal norms) is carried out taking into account all its characteristics and their correlation to the norms of the criminal law.  Such identification is strictly individual and specific. This «process» is called criminal legal classification of the socially dangerous act. Authorities applying criminal legislation analyze and compare the features of the committed act with the features of a certain body of the crime. If these features match, the person who committed this act is incriminated with a certain body of the crime (certain crime). Preliminary classification of a crime is carried out by the pretrial investigation agencies. However, the definitive classification and the determination of the sanction lie within the exclusive competence of the court.

Fundamental principles of infliction of a criminal punishment are established by the Article 65 of the Criminal Code of Ukraine and are as follows:

1. A court shall impose a punishment:

(1) within the limits prescribed by a sanction of that article of the Special Part of this Code, which creates liability for the committed criminal offense;

(2) pursuant to provisions of the General Part of this Code;

(3) having regard to the degree of gravity of the committed offense, character of the guilty person, method and motives of the committed offense, nature and extent of damages, and circumstances mitigating or aggravating the punishment.

2. The punishment imposed on an offender should be adequate and sufficient to reform the offender and prevent new offenses.

3. The grounds for imposing a punishment milder than the one prescribed for a committed offense in a relevant article of the Special Part of this Code, are specified in Article 69 of this Code.

4. A punishment heavier than the one prescribed for a committed offense in a relevant article of the Special Part of this Code may be imposed pursuant to Articles 70 and 71 of this Code in case of cumulative offenses and cumulative sentencing.

Brining a person who committed a socially dangerous act to criminal liability is carried out only pursuant to the strict procedure defined by the Criminal Procedure Code (CPC) of Ukraine.

The full text of the Criminal Procedure Code of Ukraine is available in the Internet:

1.      in Ukrainian:

http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1001-05 (Articles from 1 to 93-1)

http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1002-05 (Articles from 94 to 236-8)

http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1003-05 (Articles from 237 to 449)

Unfortunately, the compilers of this publication were unable to find the full text of the Criminal Procedure Code in Russian or English in the open access in the Internet.

Criminal proceedings according to the Ukrainian legislation include the following stages:

1. Report on crime — notification of the competent authorities on the crime which was committed or is being prepared. Report on crime may be made both orally and in writing. Physical persons, public association (formal or informal)[4], as well as institutions, organizations and their officials may notify competent authorities of a crime. Report may be made by calling up law enforcement, coming to the territorial unit of the law enforcement agency and orally informing the attendant officer of the crime, as well as through the submission of a written report to the competent authority. The competent authorities include the prosecutor, preliminary investigation agency, pretrial investigator or the court, according to the place where the crime was committed. Namely, the report on crime is a ground for the initiation of the criminal case (criminal proceedings). See Articles from 94 to 100, Chapter 8 of the CPC of Ukraine, as well as the Order of the MoI of Ukraine N400 «On the procedure for receiving, registration and consideration by the agencies of the MoI of Ukraine of the reports on crimes, which are committed or being prepared» from 14/04/2004.

2. Preliminary investigation — measures of detection, taken by the preliminary investigation agencies[5] on the grounds of the report on crime. These measures are aimed at ascertaining the features of the crime and identification of the person who committed it. In case the preliminary investigation agency traces the features of the crime in the reported incident, it initiates criminal proceedings. After initiating the criminal case, this agency takes measures to identify the perpetrator and, in accordance with the established procedure, hands the case over to the pretrial investigator (directly or via prosecutor, who executes control functions).   Preliminary investigation is not carried out on certain types of the crimes. See Articles from 103 to 110, Chapter 10 CPC of Ukraine.

3.      Pretrial investigation — investigation of the case with the aim to ascertain all of its elements before the meter is referred to the court for the judicial examination. Pretrial investigation is carried out on all types of crimes except for those, provided by Articles 125 and 126 Para 1, as well as Articles 133 Para 1;164; 185 Para 1; 186 Para 1; 190 Para 1; 194 Para 1; 194-1 Para 1; 202 Para 1; 203 Para 1; 205 Para 1; 212 Para 1; 212-1 Para 1;  213 Para 1; 225 Para 1; 226 Para 1; 245 Para 1; 246; 247; 248 Para 1; 249 Para 1; 250; 296 Para 1; 395 of the Criminal Code of Ukraine. Depending on within the competence of which authority it lies according to Article 112 of CPC of Ukraine, the  pretrial investigation may be carried out by the investigators of the Prosecutor’s office, of the agencies of the MoI of Ukraine or the investigators of the Security Service of Ukraine. The rules governing the pretrial investigation are set out by the Articles 101 to 226 (Chapters 9 to 20) of the CPC of Ukraine and are equally obligatory for all the bodies listed above. After finalization of the pretrial investigation on the case, the materials of such a case are handed over to the Prosecutor for the audit, who in his turn, after approving the conclusion to indict, refers the case to the court.

4.      Judicial proceedings are regulated by the Section III (Articles 237 to 401) of the Criminal procedure code of Ukraine and include the following stages:

1) Preliminary consideration, which is carried out by one judge with obligatory presence of the prosecutor. Presence of other participants, including the accused person and the victim, is «desirable but not obligatory». On the basis of the preliminary consideration results, the judge takes the decision in the form of order 1) to put the case on trial; 2) terminate the proceedings on the case; 3) refer the case according to the jurisdiction (if this category of the cases is beyond the jurisdiction of this particular court); 4) close the case; 5) return the case for additional investigation. See Articles 237 to 257, Chapter 23 of the CPC of Ukraine.

2) Judicial examination by the court of trial (first instance) is regulated by the Articles 257 to 346 (Section III, Chapters 24-28) of the CPC of Ukraine. In the course of judicial examination, the court shall examine directly the evidence in the case: question the accused, witnesses, analyze the conclusions of experts, inspect the exhibits, read off the protocols and other documents relevant to the case (Article 257 of the CPC).  Parties to the proceedings (the accusing side: prosecutor as well as the victim and civil claimant and their representatives; and the defense side: the accused, defense attorney and legal representative, civil defendant) enjoy equal rights to file the objections, petitions, submission of evidence, and participate in their examination and proving their cogency, participate in the forensic debates and appeal against the procedural decisions of the court (Article 261 of the CPC). Examination of the case is carried out only concerning the accused and within the framework of the charges against them (Article 275 of the CPC). Judicial examination embraces the following stages:

a) preparatory part of the court hearing — preparatory actions before the beginning of the judicial investigation. See Articles 283 to 297, Chapter 25 of the CPC of Ukraine;

b) judicial investigation in the framework of which the evidence is being examined. See Articles 297 to 317, Chapter 28 of the CPC of Ukraine;

c) forensic debates and the last word of the accused — speeches of the prosecutor, victim and his/her representative, civil claimant and civil defendant as well as their representatives, defense attorney and the accused. After the completion of the speeches, the participants of the forensic debates can exchange replications, and the right of last replication belongs to the accused. After the last word of the accused, the court immediately leaves for the consultation room to decide on the verdict. See Articles 318 to 320, Chapter 27 of the CPC of Ukraine;

г) decision on the verdict — the court weights the evidence relying on its own moral conviction, which should be based on comprehensive, thorough and impartial examination of all the circumstances of the case taken together, in accordance with the law. The verdict shall be legitimate and motivated. Furthermore, it should be based only on the evidence examined at the court hearing (Article 323 of the CPC). After the judges have signed the verdict they come back to the courtroom to announce it. See Articles 321 to 346, Chapter 28 of the CPC of Ukraine.

3) Challenging the verdict (as well as decrees and orders) of the court is regulated by Section IV of the CPC of Ukraine:

a) Appeal — challenging the decision of the court of first instance on substantive matters. From the accusing side, the appeal can be filed by (Article 348 of the CPC):

1.      prosecutor, who participated in the case examination by the court of first instance, as well as the prosecutor who approved the conclusion to indict, but only within the limits of the accusation supported by the prosecutor who participated in the trial of the case;

2.      victim and his/her representative — solely in the part which concerns the interests of the victim, and limited to the claims filed by them in the court of the first instance;

3.      civil claimant — solely in the part concerning the resolution of the civil suit.

The verdict of the court or the other decisions of the court of first instance is considered by the court of appeal strictly within the limits of the appeal. The conclusions of the court of first instance which where not contested by the appeal, or that evidence which was not examined by the court of first instance, are not subject to the review by the court of appeal.  See Article 347 to 382, Chapter 29 of the CPC of Ukraine.

b) Cassational proceedings — the verdict and other decisions of the court of appeal ruled in the capacity of the court of first instance, as well as within a framework of the appellate review, may be revised in the cassational proceedings. The court of cassation does not try the case on matters of substance. It only reviews the legality and reasonableness of the judicial decision on the basis of the materials available in the case and additionally filed materials[6], exclusively in the part in which such decision was contested. See Articles 383 to 400-4, Chapter 31 of the CPC of Ukraine.

c) Revision of the decisions in course of exceptional proceedings — review of the decisions which have entered into legal force. Such revision is only possible if new circumstances were deduced, as well as if incorrect application of the criminal law or substantial violations of the requirements of the criminal procedure legislation, seriously influencing the validity of the court decision, were elicited. See Articles 400-4 to 401, Chapter 32 of the CPC of Ukraine.

The specifics of the stages of the criminal proceedings outlined above, as well as the rights of the victims at these stages prescribed by the criminal procedure law, will be further analyzed in detail. Unfortunately the limits of this publication do not allow a presentation of a detailed analysis of the judicial proceedings specifics. Therefore only the basic principles concerning the rights of the victim in criminal judicial proceedings will be considered.


[1] International Law provides for certain exeptions from this rule consideration of which is beyond of the scope of this publication.

[2] Basic elements of any crime are its object, objective aspect, subject and subjective aspect:

Object — social value, protected by law, against which the crime has been directed (which is violated by such act). For example, human rights and freedoms, e.g. right to life, physical integrity, freedom from discrimination, right to property etc.

Objective aspect of the crime — outward form or appearance of the crime. Objective aspect includes such elements as: action/omission, socially dangerous consequences (bodily, psychological, economical, organizational harm), causal link (connection between the act/omission and consequences; place, time, circumstances, instruments, means, way the crime was committed (modus operandi).

Subject of the crime — person who committed a crime, who has the characteristics significant from the perspective of the criminal law, including: age, capability to realize and bear liability for his/her actions.

Subjective aspect of the crime — complex of the features characterizing physiological attitude of the subject of the crime to the act committed by him/her. The indispensable element is of the guilt of the subject in the committed act. The absence of guilt counts out the subjective aspect of the body of the crime, and consequently precludes criminal liability. Other essential elements of the subjective aspect of the crime are such characteristics as intent (person realized or should have realized the consequences of its action/omission), motive and purpose.

Only the accumulation of all four elements listed above forms the body of the crime (corpus delicti) and defines the criminal liability of a person, who committed one or another socially dangerous act.

[3] General Part of the Criminal Code of Ukraine contains the norms of universal character for the purposes of criminal law of Ukraine. These norms define the purposes and principles of the criminal law, grounds of criminal liability and grounds for the exemption from criminal liability; scope of the criminal law applicability in time and space, as well range and characteristics of persons it is applicable to.  The General Part of the Criminal Code of Ukraine contains the definitions of crime, guilt, criminal sanity/insanity, stages of a crime, complicity in a crime, circumstances aggravating the crime and circumstances commuting the punishment. It also outlines the system of punishments, defines general and specific grounds for imposition of punishment and relief from it, etc. The General Part of the Criminal Code as a whole is applicable to each particular provision of the Special Part of the Code.

The Special Part of the Criminal Code specifies the scope and substance of the criminal liability in respect of each particular type of crime (its body). In other words, this part contains the exhaustive list of crimes (contained in dispositions of its provisions) and prescribes the frames of possible punishment for commitment of each of such crimes (sanction). However, the application of these concrete provisions is impossible without due regard to all the general provisions of the General Part of the CC of Ukraine.

[4] Legislator uses the term «public». This category of the sourses of infomation on crimes also includes references to criminal acts published in media. The law enforecement officers are obliged to check such information and in cases, where the information is confirmed, intiate criminal proceedings on the basis of such media report.

[5] The preliminary investigation agency which is of relevance for the purposes of this publication is first of all police. Note that the Procecutor’s office, pretrial investigators and courts, which are also bearing the function of the institution of criminal proceedings (like police, which is a structural part of MoI),  do not perform the functions of the preliminary investigation agencies.

[6] See Article 393 of the CPC of Ukraine regarding the order of acceptance of new materials by the court of cassation, and the requirements set regarding such materials.

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