Conclusion of the Main Research and Expert Department of the Verkhovna Rada of Ukraine on the draft law №2540a

CONCLUSION

of the Main Research and Expert Department of the Verkhovna Rada of Ukraine
on the draft law of Ukraine “On Amendments to the Criminal Procedural Code of Ukraine on Specific Matters on the Imposition of Property Seizure to Eliminate Corruption Risks in its Application” (Reg. № 2540а)

 

The draft law aims, as stated in the memorandum to it, at improving the provisions of the Criminal Procedural Code of Ukraine (hereinafter — CPC) on compensation for damage inflicted by unlawful actions of the suspect, prevention of unfair use of existing legal mechanisms to avoid confiscation, special confiscation or damage compensation, in particular, in case of settling of a civil claim, ensuring application of criminal law to legal entity and improving the efficiency of the special pre-trial investigation.

For this purpose it is proposed to amend Articles 170 — 173, 236, 2971 of the CPC, namely to provide an opportunity to seize property of any person if it can be used as evidence in criminal proceedings or special confiscation can be applied to it; to allow providing compensation for damage inflicted by a criminal offence as well as recovery in state revenue of undue advantage, obtained or could be obtained by a juridical person; to unify the list of objects which may be seized; to vary the degree of proof necessary to establish the circumstances for seizure of property, depending on its purpose; to allow to distinguish between the concept of “the damage inflicted by a criminal offence” and “the amount of a civil claim”; to allow reducing at the suggestion of the investigator, prosecutor or civil plaintiff the period necessary to correct the petition for seizure of property; to specify the procedural status of property seized during the search; to ensure the possibility of the special pre-trial investigation of other crimes, except as provided by Article 297-1 of the CPC, provided that they are being investigated in one criminal proceeding and the selection of materials on them could negatively affect the completeness of pre-trial investigation and trial.

Upon the review of the submitted draft law the Main Research and Expert Department considers it necessary to note the following.

  1. The draft law proposes to amend Article 170 of the CPC, according to which the seizure is a temporary deprivation of the “right to alienation, disposal and/or use of property reasonably believed to be associated with a criminal offence…”. Unlike proposed in the current version of this Article of the CPC, the prohibition applies mainly to the alienation of certain property and only as an alternative the current CPC provides the possibility to prohibit the person, whose property is seized, or another person in whose possession the property is, to dispose of and use it (Article 170 of the CPC).

The submitted draft law, which provides for the right to seize property, which is in possession, use or disposal of any individual or juridical person “if it is reasonably believed to be associated with a criminal offence or with a person who is suspected or indicted or legal entity to which the provisions of the criminal law are applicable” will change the content of the term “seizure of property”, which, in our view, will lead to violations of rights of persons who possess, use or dispose certain property, because they will be divested of this right even when there will be no necessity to restrict their rights in that volume.

  1. As already noted, the draft law (Article 170 Part One) proposes to allow the seizure of property reasonably believed to be associated with a criminal offence or a person who is suspected or indicted, or legal entity to which the provisions of the criminal law are applicable. According to the established rules of the legal drafting methodology, terms and concepts contained in a legal act (especially in criminal law) shall have a proper legal certainty that would preclude their arbitrary interpretation. However, the concept of “reasonable grounds” used in the draft law is judgment-based, which can lead to violations of rights and legitimate interests of individuals and legal entities.
  2. According to paragraph 7 of Article 170 of the CPC (of the submitted draft law) the seizure may be imposed on movable or immovable property, money in any currency, in cash or non-cash form, on securities, property, corporate and other rights and assets in possession, use or disposal of a person. That is, the submitted draft law actually proposes to expand the list of property that can be seized, making it public, which will also lead to violation of rights of persons whose property might be seized.
  3. The draft law proposes to supplement Paragraph 3 of Article 171 of the CPC with a provision, according to which the petition of prosecutor on seizure of property shall contain other information that indicates the presence of such property in possession, use or disposal of the person, which will nourish many misunderstandings because of the content of this wording it is not clear what other information could be a sufficient evidence.

Overall, the excessive expansion of persons, whose property may be seized and the list of objects that may be a subject to a seizure lacks clear criteria to be met by information that may indicate the presence of property, which is to be seized, is in possession, use or disposal of a person, can lead to numerous cases where investigators (prosecutors) will solve these issues at their own discretion. Thus, in our view, the real prerequisites for the significant abuse by the said persons are being created.

  1. According to Paragraph 1 of Article 171 of the CPC (of the submitted draft law) in the request of the civil plaintiff of property seizure the suspect, indicted or legal entity against which the proceedings are carried out; another person to secure the civil claim of damages inflicted by a criminal offence must state , in particular, the amount of damage inflicted by a criminal offence and/or the size of claims. The appropriateness of the indication on the size of the claim and the admissibility of its impact on of the amount of the seized property are questioned. There are no limits that apply to the person in determining the size of the claim, and at the same time, this information may restrict the rights of persons whose property will be seized.
  2. Paragraph 5 of Article 171 of the CPC (of the submitted draft law) contains incorrect reference to Article 235 of the CPC, because the latter has a completely different meaning than Article 171 of the CPC. Thus, the current version of Article 235 of the CPC does not stipulate the decision on the temporary withdrawal of property but stipulates only the decision on permission to search homes or other property. Attention should be drawn to this when finalizing the draft law.
  3. Paragraph 2 of Article 297-1 of the CPC is proposed to be supplemented with the following sentence: “The conduct of the special pre-trial investigation concerning other crimes is not allowed, except when they are investigated in one criminal proceeding with crimes mentioned in this Paragraph and the selection of materials on them could negatively affect the completeness of the pre-trial investigation and trial”. The above wording does not give a clear answer to the question if in this case it refers only to crimes that are being investigated in a criminal proceeding, committed by one person, against whom there is a reason to conduct a special pre-trial investigation, or to other persons if they are also suspected in committing the crime the investigation of which is in one criminal proceeding with the investigation of crimes mentioned in Article 297-1 of the CPC. In the latter case there will be an absolute violation of rights of officials who did not abuse their position and persons not hiding from the investigating authorities and court with the aim to evade criminal responsibility and who are not on the interstate and/or international wanted list.
  4. The Memorandum to the draft law states that it is designed “to improve the possibilities of practical application of the CPC on compensation of damage inflicted by criminal acts of a person suspected or indicted…”. Please note that the assessment of individual actions as criminal before the decision of the court for the case, in which the person is a defendant, is premature.

Generalized conclusion: according to the results of the review in the first reading the draft law is advised to be returned for revision.

 

Head of the Main Department                                                    V. I. Bordeniuk

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