society

On the new code and old methods

05.12.2014 | By Rustem Khalilov

It has been two years since the new Criminal Procedural Code took force. Expert of the Center of Political and Legal Reforms, Assistant Professor of Legal Sciences Oleksandr Banchuk speaks about how the new code is being applied

KW: How effective is the new CPC?

O.B.: If we ask both sides the accused and the defense, both will say they dont like it. However, a knife cannot be sharp and blunt. This happens because for fifty years the country lived by a certain set of rules and suddenly there are new rules. We worked on the code from 2006 to 2010 in order to harmonize this sphere with minimal European standards. The code is a set of rules and we assumed that we would be introducing these rules simultaneously with the reform of institutions that apply them. Well, it turned out that the rules turned out right, but the institutions, which remained old, are trying to apply the law as they did earlier.

However, over 2.5 years, the number of people in the temporary holding cells dropped from 36,000 (in February 2012) to 18,000 (as of October 1, 2014). As a reminder, these are the people that have not been found guilty by court. There is also the number of convicted people and over the past year it decreased substantially as well. What does this mean for me? That the rules of forming criminal cases for the prosecutors and police have become more complicated. This, however, also means that there were 20-25% more doubtful cases in the past. Now, due to the more complicated procedure, the prosecutors office sends to courts only the cases, where it more or less sure that it will get a verdict.

If we take the statistics of searches and tapping, their number dropped by 10-20%. Why? Because earlier the decision about the search was approved by the investigator in the case. Now, he/she has to go to court. And though in 90-95% of cases the judges confirm this position, going to a court is not the same as signing a document in your own office. These general figures indicate that the system of criminal justice is being humanized.

We expect that the Law of Prosecutors Office will enter into force next March. Then in case of abuse by the prosecutors office, we will have better procedures for drawing prosecutors to disciplinary account or dismissing them. Reform of police should also be expected. If it happens, it will mean that we will be able to discipline the people applying the code. This, in its turn, means, and I really hope for that, that they will be applying the law better and observe the guarantees envisaged by it.

KW: When the CPC was adopted, some said that it is revolutionary and, as far as I understood from your words, it is exactly revolutionary. So why did the revolution not happen?

O.B.: The first reason is that the institutions have not been reformed. The second is that the courts were dependent on the political power and on the prosecutors office. If the court acted within the framework of the rules written in the code 90% of all problems would have been removed. Judicial bodies have factually been given around 30 additional authorities. However, the courts are used to listening to the prosecutors office such is the historical legacy. It is possible that in big cities this is not such a big problems, but in the counties, where there are five prosecutors and three judges it may be.

Dependence of judges on the prosecutors is indicated by the level of the non-guilty verdicts. Over the first year of the codes effect there were 0.28%. In the first half of 2014 the first grew to 0.57% nearly doubling. Why is this substantial in the system that we have? Because earlier the non-guilty verdicts appeared only in private accusation cases. This means that there were two private individuals in them, while now there is always a prosecutor in such cases. It is important, when the prosecutor supports the accusation and the court says: no, you are wrong.

Also the fact that around 9-10% of court cases are settled outside the court also humanized the processes. In a large number of cases the code made it possible for the offended party and the suspect to settle.

WHAT DRIVES THE CRIME RATE UP

Criminal statistics for the years 1914-1918 in then second most important city of the Russian Empire Moscow serves as an illustrative example of how the revolutions, wars and social upheavals increase crime rate. There was no specific statistics in Ukraine for those years. As calculated per Moscows crime rate in general has increased over this period by 3.3 times. The smallest growth was observed in thefts (3.4 times), fraud (3.9 times), misappropriation of state property (1.6 times). Meanwhile the crimes associated with the use of weapons brought from the front and decrease of respect for human life grew manifold: murders by 11 times, armed robberies by 307 (!) times.

During the Great Patriotic War, the number of non-military offenses, contrary to popular opinion, increased compared to the pre-war period 2.5-3 times. However, 53% of all convicts were persons who violated the laws on punishment for being late to work, evasion of mobilization for forced labor, etc. That these figures are much smaller than the growth of crime during the WW I and the Revolution can be explained by the fact that crime was mostly linked to the spontaneous redistribution of property, and in 1941-1945, the population was equally poor.

Interestingly, the crime rate increases not only due to the unfavorable social factors, but also as a result of progressive social changes. For instance, in 1831-1861 the crime rate in the Russian Empire, including Ukraine, was approximately at the same level. However, after the abolition of the serfdom it increased 1.5 times by 1870 as calculated per capita and three times by 1913. presumably mostly due to the migration of freed peasants to the cities, where not all of them managed to find jobs. For example the population of St. Petersburg grew over 1.5 times in the period from 1897 to 1913. At that, even based on the official statistics there were dozens thousands of people living in then capital of the Russian Empire, who had no legal means of living.

A similar example is the increase of the crime rate in the South Africa, after it gained independence. Despite the liberation from the shackles of colonialism, which left the country with a good material and technical base, social and wealth inequality in South Africa is stunning - 40% of the able-bodied population is unemployed, and 30 % live on less than US $2 a day.

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