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09KYIV484, UKRAINE’S DRAFT CRIMINAL PROCEDURE CODE SUBMITTED TO

March 18, 2009

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Reference ID Created Released Classification Origin
09KYIV484 2009-03-18 13:47 2011-08-30 01:44 UNCLASSIFIED Embassy Kyiv

R 181347Z MAR 09
FM AMEMBASSY KYIV
TO SECSTATE WASHDC 7482
INFO AMEMBASSY ISLAMABAD 
AMEMBASSY JAKARTA 
AMEMBASSY MOSCOW 
AMEMBASSY CHISINAU

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the Ukrainian criminal justice system, replacing outdated Soviet-era 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. 
 
-------------- 
Chance for Major Reforms - Hopefully 
---------------- 
 
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. 
 
------------- 
Rights Denied: Why the CPC matters 
----------- 
 
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 l
eads 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.

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