UKRAINE'S DRAFT CRIMINAL PROCEDURE CODE SUBMITTED TO

UNCLAS KYIV 000484


FOR INL/AAE, EUR/ACE, EUR/UMB
USDOJ FOR OPDAT CATHERINE NEWCOMBE
ISLAMABAD FOR RLA CLEHMANN
JAKARTA FOR RLA RSTRANG
MOSCOW FOR RLA TFIRESTONE
CHISINAU FOR RLA SLUM

E.O. 12958: N/A
TAGS: PGOV KCRM UP

SUBJECT: UKRAINE'S DRAFT CRIMINAL PROCEDURE CODE SUBMITTED TO
PRESIDENT, BUT TIME RUNNING OUT FOR PASSAGE

REFTEL: 08KYIV2456


1. Summary: On March 10, 2009, Ukraine's National Commission for
Strengthening Democracy and the Rule of Law (NCSDRL) submitted to
the President of Ukraine a revised draft of the proposed new
Criminal Procedure Code (CPC). The President must now introduce the
draft into Parliament, but if the CPC isn't passed in the next
several months, election year dynamics could derail the process.
Maintaining the CPC's key provisions during Parliamentary review
will require close monitoring. Once in Parliament, the draft CPC
will encounter intense controversy. The Prosecutor General's Office
(PGO) has so far been the harshest critic of the code, supported by
other law enforcement bodies. When enacted, this CPC will transform
the Ukrainian criminal justice system, replacing outdated Soviet-era
proceedings with open and genuinely adversarial trial processes.
The CPC would represent a major step toward bringing Ukraine's
criminal justice system into compliance with Euro-Atlantic
standards, particularly the European Convention on Human Rights.
End Summary.

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Chance for Major Reforms - Hopefully
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2. At a December 10, 2008 NCSDRL meeting chaired by President
Yushchenko, the revised draft CPC was approved (reftel),with orders
to finalize the language by March. Yesterday, the NCSDRL completed
necessary revisions and submitted the revised draft to the
President. The President is now expected to approve the draft and
submit it to the Parliament. Although Parliamentary passage is the
sole remaining hurdle, election year dynamics may prove to be a
crucial test for the integrity of the proposed legislation.


3. Once the draft CPC enters Parliament, it will become a subject of
intense controversy. The Prosecutor General's Office (PGO) has so
far been the harshest critic of the code, supported by allies among
the police, other law enforcement bodies, and certain retrograde
members of the judiciary and of Parliament. The PGO's criticisms
are wide-ranging, but focus primarily on those changes that would
alter the traditional Soviet-era role of the Procuracy, and serve to
limit its power. In the wider legal community, the draft CPC enjoys
considerable support. Such support is particularly evident in the
Ministry of Justice and other legal institutions outside of strict
law enforcement, at leading law academies, and amongst forward
looking members of Parliament who are eager to continue Ukraine's
path toward Euro-Atlantic integration.


4. To address this, Mykola Onishchuk, who is both the chair of the
NCSDRL and the Minister of Justice, plans a public relations
campaign aimed at generating support for the reforms embodied in the
draft. At his request, the US Department of Justice OPDAT program
(DOJ/OPDAT) has agreed to help support such a campaign, and to
coordinate with other international donors and advocates of reform.
This campaign would be impaired somewhat if promises from the
governing coalition that Onishchuk is soon to be removed as Minister
of Justice, possibly as soon as March 19, are finally fulfilled. But
Onishchuk is expected to remain as chair of the NCSDRL, and to
continue to push for passage of the draft CPC.


5. Passage of the CPC is one of the NCSDRL's key objectives in
reforming Ukraine's justice institutions and legislation (reftel.)
The new draft CPC, which was authored by leading Ukrainian legal
figures, has been vetted by the CoE and found to comport with
European standards for criminal justice and human rights. CoE
experts found the CPC to be "well structured and relatively
efficient and respectful of human rights," and stated that it
introduces a sound basis for major reforms to Ukrainian criminal
procedure. Throughout this process, the NCSDRL received support
from DOJ/OPDAT, which organized drafting retreats and roundtables,
provided expert input, and arranged for the participation of
American and European criminal procedure specialists.

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Rights Denied: Why the CPC matters
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6. Every year, the European Court of Human Rights issues a large
number of decisions faulting the Ukrainian criminal justice system.
These focus mostly on denial of the rights to a fair trial, to
reasonable limits on pretrial detention, and to an effective
defense. The CoE's Venice Commission has similarly authored a
number of opinions explaining that Ukraine's criminal justice system
fails to comply with both international and European standards.


7. The draft CPC would, for the first time, enshrine fundamental
human rights and due process protections into Ukraine's criminal
justice system, transforming the current Soviet-style system to an
open advocacy process that comports with Western and European norms.
Criminal prosecutions currently consist of the compilation of the
prosecutor's written case file, subjected at "trial" to little more
than a superficial review by the judge for procedural irregularities
- which leads to conviction in over 99% of cases charged by the
all-powerful procuracy. Instead, the draft CPC would provide
reasonable limits on pretrial detention and require that secret
investigative techniques be approved by both a supervising
prosecutor and a court. It would also grant criminal defense
attorneys equal status with prosecutors, including a discovery
system in which prosecutors furnish relevant information to defense
counsel in advance of trial, as well as entitle defense counsel to
learn about and challenge illegal investigative methods, empower the
defense to retain its own experts and provide its own analysis of
relevant evidence. The Code would also enable the courts to dispose
of uncontested charges through guilty pleas and enable prosecutors
to make more effective use of cooperating defendant-witnesses. Most
critically, the draft CPC would introduce an adversarial trial
process based upon the ECHR principle of "equality of arms" in which
both the prosecution and the defense have the right to call
witnesses, to cross-examine witnesses, and to introduce evidence.


8. For the most serious offenses, generally those carrying a
maximum sentence of life imprisonment, the CPC would also provide
for the first time for trial by jury. (Although jury trials are
established in the existing Ukrainian constitution, there has never
existed any legal mechanism to actually establish such trials, and
they do not presently take place.) This new institution would
empower the Ukrainian citizenry to participate in what has
traditionally been the sole domain of the judiciary, and effectuate
Ukraine's own constitutional principles.