Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
Recibido el 23/09/2021 Aceptado el 22/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Vol. 40, Nº 72 (2022), 245-263
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Features of the functioning of the
institute of criminal oenses in Ukraine
DOI: https://doi.org/10.46398/cuestpol.4072.13
Roman Lemekha *
Volodymyr Rubtsov **
Natalya Orlovska ***
Volodymyr Kantsir ****
Humin Oleksii *****
Abstract
It analyses the provisions of criminal and procedural
legislation on the establishment of criminal oences, as well as
the practice of their application. The application of a set of general
methods and special scientic knowledge made it possible to
formulate some proposals for: (1) determination of criminal
liability for misdemeanours and increased penalties in the form
of a ne for the commission of certain oences; 2) regulation in
the Law of Ukraine to the international standard; (3) introduction by the
National Police of the specialization of investigators with a clear reection
of jurisdiction in criminal procedure legislation; 4) addition of the Code
of Criminal Procedure with provisions on the adoption of the relevant
procedural decision by the investigating judge, in case the composition of
the crime is not established and; 5) identication of the forensic doctor as
the subject of the search, as well as a request for conscation of property. It
is concluded that the Code of Criminal Procedure of Ukraine must identify
the coroner together with the investigator and the prosecutor as the object
of the search, as well as, if necessary, request the seizure of property, mainly
to temporarily seize the property during the detention of a person.
Keywords: criminal oense; release from punishment; pre-trial
investigation; inquiry.
* Candidate of legal science, Associate Professor at Lviv branch of the European University, Lviv State
University of Internal Aairs, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0003-3391-4143
** Candidate of legal science, Associate Professor, Associate Professor at the Department of Management
and Social Sciences and Humanities, Lviv branch of the European University. Lviv, Ukraine.
ORСID ID: https://orcid.org/0000-0001-7864-0065
*** Doctor in Law, Associate Professor, Professor of Criminal Law and Administrative Law Department,
Odessa National Maritime University, Odessa, Ukraine. ORСID ID: https://orcid.org/0000-0002-
4400-560X
**** Doctor in Law, Professor of Criminal Law and Procedure Department, Lviv Polytechnic National
University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-3689-4697
***** Doctor in Law, Professor, Head of the Department of Criminal Law and Procedure of the Educational
and Scientic Institute of Law, Psychology and Innovative Education, Lviv Polytechnic National
University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-8016-945X
246
Roman Lemekha, Volodymyr Rubtsov, Natalya Orlovska, Volodymyr Kantsir y Humin Oleksii
Features of the functioning of the institute of criminal oenses in Ukraine
Características del funcionamiento del instituto de
delitos penales en Ucrania
Resumen
Se analiza las disposiciones de la legislación penal y procesal sobre el
establecimiento de delitos penales, así como la práctica de su aplicación.
La aplicación de un conjunto de métodos generales y de conocimientos
cientícos especiales permitió formular algunas propuestas para: 1)
determinación de la responsabilidad penal para faltas y aumento de
sanciones en forma de multa por la comisión de determinados delitos; 2)
regulación en la Ley de Ucrania al estándar internacional; 3) introducción
por parte de la Policía Nacional de la especialización de investigadores con
un claro reejo de jurisdicción en la legislación procesal penal; 4) adición
del Código de Procedimiento Penal con disposiciones sobre la adopción de
la decisión procesal pertinente por parte del juez de instrucción, en caso
de que no se establezca la composición del delito y; 5) identicación del
médico forense como sujeto de la búsqueda, así como una solicitud de
conscación de propiedad. Se concluye que el Código de Procedimiento
Penal de Ucrania debe identicar al forense junto con el investigador y
el scal como objeto del registro, así como, de ser necesario, solicitar la
incautación de bienes, principalmente para incautar temporalmente los
bienes durante la detención de una persona.
Palabras clave: infracción penal; infracción penal, exoneración de la
pena, instrucción previa al juicio; indagación.
Introduction
Amendments to the preamble of the Constitution of Ukraine on February
7, 2019, enshrined at the level of the Basic Law the European identity of the
Ukrainian people and the irreversibility of the European and Euro-Atlantic
course of Ukraine (On Amendments to the Constitution of Ukraine, 2019).
As a result, the Ukrainian legal system, in particular in the areas of criminal
law and criminal procedure, needs to be improved and modernized as never
before in order to meet the high standards of European Union law.
On July 1, 2020, the institute of criminal oenses began to operate in the
legal system of Ukraine, the main precondition for the introduction of which
was the country’s fulllment of international obligations, harmonization of
Ukrainian legislation with the legislation of other European countries, the
desire to humanize domestic criminal law and, possibly, with reduction
and optimization of the burden on law enforcement agencies, courts, and
penitentiaries.
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The decision to separate this institution from the Criminal Code of
Ukraine necessitated the harmonization of the norms of this Code with
the norms of the CPC of Ukraine. This was preceded by the adoption in
November 2018 of the Law of Ukraine № 2617-VIII “On Amendments to
Certain Legislative Acts of Ukraine to Simplify the Pre-trial Investigation
of Certain Categories of Criminal Oenses”. In December 2019, the law
was amended and supplemented (Law of Ukraine № 321-IX). As a result,
the introduction of the new legal institution was postponed for more than
six months. This dicult path is due to the complexity of the problem,
the solution of which is aimed at implementing another legal novel. In
particular, it took time for technical measures to implement the new rule
in the Unied Register of Pre-trial Investigations, to harmonize legislation
and regulations, to establish a Training Center for Prosecutors, and so on.
Despite all the diculties of theoretical, legal, law enforcement and
social nature, the introduction of the institution of criminal oenses in the
Ukrainian reality was another step towards building a European criminal
justice system and a new important step towards creating a civil society
based on social justice and humanistic principles (Aulin, 2020).
One of the main goals of the introduction of criminal oenses was to
unload the investigation of minor criminal oenses to optimize resources
that can be further used for better pre-trial investigation of crimes. The
average workload of a National Police investigator used to be 280-300
at a time. Given that the number of investigators has decreased by 2,000
(the total number is now about 16,000) and that 50 % of criminal oenses
are crimes, the burden on one investigator has fallen twice with a small
error in the direction of increase, so it is about 160 criminal proceedings
per person simultaneously (Regulations on the organization of activities of
understanding units of the national police of Ukraine, 2020).
According to ocial statistics, in the period from 01.07.2020 to
31.10.2020, 50.4% of all reported criminal oenses were investigated in the
form of an inquiry (130.7 thousand criminal oenses out of 259,3 thousand
criminal oenses in total). These are common misdemeanors such as theft
without qualications (37 %), causing minor injuries (20%), fraud (16%),
illicit drug use without the purpose of sale (9%), etc. A total of 98 criminal
oenses (117 parts of the Special Part of the Criminal Code of Ukraine
(hereinafter – the Criminal Code of Ukraine) (Letter of the National police
№731 / 49 / 1-2020, 2020).
Even during the discussion of the draft law “On Amendments to Certain
Legislative Acts of Ukraine to Simplify the Pre-trial Investigation of Certain
Categories of Criminal Oenses”, its main provisions have been the subject
of numerous discussions by lawyers, politicians and members of the public.
They still do not subside. In the framework of modern socio-political reform,
the issues of responsibility for an act that does not pose a public danger,
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Features of the functioning of the institute of criminal oenses in Ukraine
ensuring and respecting human and civil rights and freedoms, further
reform of law enforcement agencies in connection with the introduction
of criminal oenses remain relevant and need to be adequately addressed.
1. Methodology of the study
In the process of writing a scientic article, a set of general and special
methods of scientic knowledge is used, which are selected considering
the goals and objectives set in the work, the specics of the object and
subject. They are based on the general dialectical method, i.e., the general
scientic method used in the study of the theory and practice of the institute
of criminal oenses. Methods of logic (analysis, synthesis, induction,
deduction) are used in the study of scientic provisions, regulations and
statistical materials relating to the regulation of criminal liability for criminal
oenses, as well as ensuring the rights of the individual during the pre-
trial investigation of this type of criminal oense. draw sound conclusions;
system-structural method - in determining the optimal relationships
between the processes that determine the approximation of criminal
law regulation of misdemeanors and criminal proceedings of Ukraine to
international standards; dogmatic method – in the interpretation of the
conceptual apparatus of research; historical and legal method – in the
study of the formation and development of legislation on the introduction
of the institution of criminal oenses; comparative legal method – during
the analysis of legislation, scientic categories, denitions and approaches;
comparative method – when studying the state of ensuring the rights of the
individual during the pre-trial investigation of criminal oenses; statistical
method – in determining the state and dynamics of generalized results of
sociological research. These methods were used during the study in their
relationship and interdependence, which ensured the comprehensiveness,
completeness, and objectivity of the obtained scientic results.
2. Analysis of recent research
The researched question has long been one of the most discussed in the
legal literature. Some problems of reforming the legislation on administrative
oenses and the introduction of the institution of criminal oenses were
studied by such scientists as: O. Dudorov (Dudorov, 2013), P. Fris (Fris,
2012), V. Bozhik (Bozhik, 2020), I. Krasnytsky, O Horpynyuk (Krasnytsky
and Horpynyuk, 2019), A. Voznyuk, D. Alekseyeva-Protsyuk (Voznyuk and
Alekseyeva-Protsyuk, 2020), J. Núñez Grijalva (Núñez Grijalva, 2021) and
other scientists. At the same time, today the implementation of the new
institute in practice is accompanied by numerous discussions among both
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procedural scholars and legal practitioners, has a number of legislative and
organizational problems that need analysis and solution, including their
relationship to the tasks, provided for in the Concept.
The purpose of the study is to analyze the national system of criminal and
criminal procedure legislation, the practice of its application, development
and implementation of eective guarantees of human rights during the pre-
trial investigation of criminal oenses.
3. Results and discussion
An indisputable novelty of legislative changes, which are an essential
component of the introduction of the institute of criminal oenses in Ukraine
is the rejection of the monistic approach to dening the main object of
criminal law regulation (criminal oense), which under the Criminal Code
of Ukraine in 2001 recognized one object – a crime , and the introduction of
a new law of a dualistic approach, according to which the object of criminal
law is recognized as two types of criminal oenses – a criminal oense and
a crime (Part 1 of Article 12 of the Criminal Code of Ukraine).
Thus, in addition to the notion of «crime», a new notion of “criminal
misconduct” previously unknown to the criminal legislation of Ukraine
was introduced into the content of the Criminal Code of Ukraine as a type
of criminal oense. In this way, the criminal legislation of Ukraine has
signicantly approached the criminal legislation of a number of European
states: the Criminal Code of Germany, France, Austria, Switzerland, Spain,
Czech Republic, Lithuania, Latvia, Estonia, etc., which adhere to a dualistic
approach in the legislative denition of object of criminal law regulation.
The legal nature of the concept of «criminal oense», which was rst
introduced into national law in 2012, is still insuciently dened at the
level of both legal understanding and lawmaking and law enforcement.
At the same time, the law enforcer (investigator, prosecutor, judge) must
have clear guidelines, must establish the distinctive features of the types of
oenses (because it is about human destinies) and take into account how a
specic act is «dangerous» or «harmful» to society and the state.
The state does not classify administrative oenses as socially dangerous
acts, and therefore responding to them does not require the involvement
of a criminal law mechanism. But, of course, an administrative oense is
harmful for the state and society, because it can also harm the relevant
values, so the state must respond to it – not only in court, but also in a more
«simplied» manner.
Given that the criminal procedure legislation provides for a special
abbreviated form of pre-trial investigation of criminal oenses, as well as
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Roman Lemekha, Volodymyr Rubtsov, Natalya Orlovska, Volodymyr Kantsir y Humin Oleksii
Features of the functioning of the institute of criminal oenses in Ukraine
the presence of numerous gaps in the legal regulation of this institution,
there may be a threat of human rights and freedoms, which necessitates
additional procedural guarantees (Bozhik, 2020).
During the introduction of simplied forms of criminal proceedings, it
is inadmissible to limit the procedural guarantees of ensuring the rights of
its participants. In addition, the inviolability of the principles of criminal
proceedings must be ensured. Restrictions on human rights and freedoms
must be carried out exclusively within the framework of a clear criminal
procedure and meet the stated purpose of such a restriction. As rightly noted
in the literature, the use of any procedural coercion in criminal proceedings
for criminal oenses should be carried out with a balance between ensuring
the rights of the individual, on the one hand, and the need to perform the
tasks of criminal proceedings, on the other (A new stage in the development
of criminal legislation of Ukraine).
The current criminal procedure legislation does not provide for
restrictions on the rights of individuals in criminal proceedings, and
guarantees of observance of citizens’ rights must remain unchanged. The
person retains the same amount of inalienable human rights, and their
restriction is of an exclusive legal nature.
During the pre-trial investigation and trial of criminal oenses, the
same scope of a person’s rights as provided for in the general procedure
must be ensured, which will ensure the proper performance of the tasks
of criminal proceedings specied in Art. 2 of the Criminal Procedure Code
of Ukraine. According to the provisions of the Convention, an important
component of the right to a fair trial is the right of everyone to a fair and
public hearing within a reasonable time by an independent and impartial
tribunal. The establishment of a dierentiated form of criminal proceedings
for misdemeanors should facilitate the realization of this right of the person.
At the same time, guarantees of ensuring the right to protection of a person
in criminal proceedings are not limited.
It should also be noted that in law-making, the state has an obligation
to make a clear distinction between administrative and criminal oenses.
Currently, almost ten decisions of the European Court of Human Rights
state that the legal nature and severity (imprisonment) of administrative
penalties in the form of administrative arrest, provided by the Code of
Ukraine on Administrative Oenses, indicate that administrative oenses
are criminal oenses in the understanding of autonomous concepts used by
an international judicial body in its activities.
The mentioned legal positions of the European Court of Human Rights
indicate that when applying such norms of the Code of Administrative
Oenses, the law enforcer must ensure, in particular, the right to protection
at the level of criminal proceedings, as well as the requirements of such
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proceedings. One of the ways to harmonize the legislation with the case law
of the European Court of Human Rights is to exclude from the norms of the
Code of Administrative Oenses such a penalty as administrative arrest.
However, with the introduction of criminal oenses, the legislator did not
solve this problem (A new stage in the development of criminal legislation
of Ukraine).
3.1. Criminal legal aspect of the problem
Given the novelty of this institution in national law, we consider it
necessary to examine the main updated provisions of the criminal law due
to its introduction.
Ukrainian parliamentarians and lawyers followed the path of most
colleagues from the European Union and made appropriate changes to the
current Criminal Code of Ukraine. It is supplemented by a new fundamental
and universal concept of “criminal oense”, which is dened in Part 1 of
Art. 11 of the Criminal Code of Ukraine as a socially dangerous criminal
act (action or omission) provided by the Code, committed by a subject of
a criminal oense. Based on Part 2 of Art. 1 and part 1 of Art. 50 of the
Criminal Code to the content of this concept is added a sign of “criminal
punishment of the act.”
To determine the act of a criminal oense in each case it is necessary to
establish the presence of all these features. The absence of at least one of
them excludes the possibility of classifying the committed act as a criminal
oense (criminal oenses or crimes), which, of course, excludes criminal
liability for this act. An act or omission which, although formally containing
the features of any act provided for by this Code, does not constitute a public
danger due to insignicance, ie did not cause and could not cause signicant
harm to a natural or legal person, society or state, is not a criminal oense.
The concept of “criminal oense” is extremely important. It denes
the content of the concepts of “criminal oense” and “crime”, as well as
the content (at the level of general) of the norms of the Special Part of
the Criminal Code of Ukraine, which formulates the features of specic
criminal oenses. Therefore, this concept actually performs the functions
of the constituent and starting category of criminal law, which is important
in both lawmaking and law enforcement.
“Criminal oense” is now a generic concept of “crime” and “criminal
misconduct”, and therefore, when qualifying an act under the Criminal
Code of Ukraine in the wording of 01.07.2020, the law enforcer must
nally decide what the guilty person committed: a criminal oense under
part 1 of Article 185 of the Criminal Code of Ukraine, or a crime (parts
2-5 of Article 185 of the Criminal Code, respectively), as in the future it
will be important for the criminal consequences of committing a criminal
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Features of the functioning of the institute of criminal oenses in Ukraine
oense. At the same time, the legislator actually proposes to distinguish
between a criminal oense and a crime by means of the type and measure
of punishment, which, in our opinion, does not seem to be the best option
for such a distinction.
Although initially criminal oenses should be primarily “created”
by many administrative oenses (which are “hidden” in the Code of
Administrative Oenses) and some minor crimes. I. Krasnytskyi and
O. Horpyniuk’s remarks that the formal renaming of a crime to a criminal
oense seems unjustied in a number of cases (in particular, in Article 107
of the Criminal Code of Ukraine, as parole can be applied only to juveniles
who have served a certain share of the sentence in the form of imprisonment
for a minor, serious or especially serious crime; the possibility of parole for
a criminal oense is not provided) (Krasnytsky and Horpynyuk, 2019).
Signicant changes have undergone and Art. 12 of the Criminal Code
of Ukraine. Thus, Part 2 of the article now provides a legal denition of a
criminal oense and states that it is an act provided by this Code (action or
omission), for which the main punishment is a ne of not more than 3,000
non-taxable minimum incomes or other non-custodial punishment.
Also, the Criminal Code of Ukraine provides a scientically sound
classication of criminal oenses into criminal oenses and crimes, and the
latter are divided into minor, serious and especially serious (Part 3 of Article
12 of the Criminal Code of Ukraine). This classication is based on a single
scientically sound criterion, which is reasonably recognized the severity
of the criminal oense, which is determined by the nature and degree of
public danger of the criminal oense (social (material) sign), which nds
a specic formal and legal expression and enshrined in punishment type
and measure) established in the sanction of the relevant article (part of the
article) of the Special Part of the Criminal Code of Ukraine.
A signicant gap seems to be the omission regarding the relevant
amendments to the Law of Ukraine «On the Application of Amnesty
in Ukraine» (1996), which is in force as amended on 14.05.2014, as this
normative legal act still operates only with the concept of «crime» and does
not use the terms “criminal oense” and “criminal oense”. Although in
Art. 86 of the Criminal Code of Ukraine, appropriate changes were made.
That is, it can be assumed that in the event of a criminal oense, the person
will not be subject to amnesty. In this case, quite logically, the question
arises: if a person is ned, then perhaps an amnesty is not needed (although
why for those who commit more socially dangerous encroachments
(crimes) it is provided, and for those who have committed a misdemeanor
– no?). But what if a person is arrested or restricted? Are there any signs of
discrimination here as well?
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It should be noted that there is no criminal liability for preparing for a
misdemeanor. This condition is logical and in fact duplicates the approach
of the previous version of the criminal law, which also provided for the
absence of criminal liability for preparation for a minor crime. The scientic
literature has expressed and still has a position on the need to abolish
criminal liability not only for training, but also for attempting to commit a
misdemeanor (Demidova, 2018). At the same time, such an approach has
not been enshrined in law, perhaps due to its overly humanistic nature.
It is also worth noting the lack of a criminal record as a legal consequence
of a conviction for a misdemeanor. Currently, in accordance with
paragraphs 2-1 of Part 1 of Art. 89 of the Criminal Code of Ukraine, persons
convicted of a criminal oense, after serving the sentence are recognized
as having no criminal record. If the person who has served the sentence
commits a criminal oense again before the expiration of the conviction,
the course of the conviction shall be interrupted and recalculated. In these
cases, the terms of repayment of the conviction are calculated separately
for each criminal oense after the actual serving of the sentence (main and
additional) for the last criminal oense (Part 5 of Article 90 of the Criminal
Code of Ukraine) (Criminal code of Ukraine, 2001).
The legislative approach to the absence of a criminal record for
misconduct has been widely criticized, in particular, L.Ostapchuk and D.
Klyuchai are convinced that leaving a criminal oense without a criminal
record contradicts both administrative and criminal law (Ostapchuk and
Klochay, 2020).
One of the most dicult and controversial issues for law enforcement
ocers is the recurrence of criminal oenses. Thus, on the one hand, Art. 32
of the Criminal Code of Ukraine has undergone a mechanical replacement
of the concept of crime with the concept of criminal oense. However, if,
as a general rule, for the presence of recidivism, the stage of the criminal
oenses that are included in the recidivism is still irrelevant.
So now there is no recidivism if it includes preparation for a criminal
oense or a crime for which the article of the Special Part of the Criminal Code
provides for imprisonment for up to two years or other milder punishment.
In such cases, in accordance with Part 1 of Art. 14 of the Criminal Code,
a person is not prosecuted, and therefore, this is not taken into account
when determining the recurrence of criminal oenses. And, as I. Zinchenko
rightly emphasizes, at least two criminal oenses that constitute it must
retain their criminal-legal signicance in case of repetition (Zinchenko,
2019). But, on the other hand, it should be borne in mind that some crimes,
even of medium gravity, are now criminal oenses. That is, in the situation
of detection, for example, preparation for theft and attempted fraud, there
is no recurrence. Time will tell how correct this is.
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Features of the functioning of the institute of criminal oenses in Ukraine
In addition, it should be borne in mind that recidivism is very common
in practice and can be considered either as a qualifying (especially
qualifying) feature of a criminal oense, or as a circumstance that
aggravates punishment. In this regard, T. Mykhaylichenko points to another
shortcoming: the relevant changes were not made in paragraph 1, part 1
of Art. 67 of the Criminal Code of Ukraine, so there is only a recurrence
and recurrence of crimes. That is, the commission of a criminal oense at
a time when a person, for example, has not yet served a previous sentence
for a crime or other misdemeanor will not aggravate the punishment
(Mykhaylichenko, 2020).
Attention should also be paid to sanctions for criminal oenses.
Interestingly, the nes for certain administrative oenses are much higher.
Can such a small amount of ne somehow aect the perpetrator? Probably
not, the only thing that can aect him in such situations is his “participation”
in criminal proceedings and his conviction. In addition, as some scholars
rightly point out, in the absence of appropriate punishment commensurate
with the nature of the act, the purpose of such punishment will not be
achieved, as the current ne can neither punish nor correct, prevent new
crimes and especially (Voznyuk and Alekseyeva-Protsyuk, 2020).
In general, the analysis of the provisions of criminal law allows to state
their unsystematic nature, the presence of some unfounded provisions that
need to be corrected as soon as possible, as well as violations of fundamental
legal principles. Given that a long time has passed since the introduction of
the institute of criminal oenses in Ukraine, it seems unclear the legislator’s
approach to amending the Criminal Code of Ukraine, the Law of Ukraine
“On Amnesty in Ukraine” and other legal documents.
3.2. Criminal legal aspect of the problem
The CPC of Ukraine provides for the features of pre-trial investigation
and trial of criminal oenses, and evidence in criminal proceedings is
a specic complex area of procedural activities of the parties to criminal
proceedings, aimed at ensuring full and objective clarication of all
circumstances to be established in criminal proceedings. misdemeanor
proceedings, in order to eectively perform its tasks in a shortened
inquiry procedure and taking into account the possibility of considering an
indictment in summary proceedings (Bozhko, 2020). Despite the adoption
of numerous amendments to the legislation of Ukraine by several laws,
the current CPC of Ukraine has technical problems of a procedural nature,
which are pointed out by theorists and practitioners. Let’s carry out their
detailed analysis for the purpose of working out of ways of the decision or
elimination.
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First of all, it is necessary to pay attention to certain problems of
realization of procedural powers by the persons who carry out investigation
of criminal oenses in the form of inquiry.
Pre-trial investigation of criminal oenses is investigated by conducting
an inquiry (paragraph 4, part 1 of Article 3 and Article 215 of the CPC
of Ukraine), which can be carried out only by ocers of the National
Police, Security Service, Tax Police and the State Bureau of Investigation
(paragraph 41 part 1 Article 3 of the CPC of Ukraine) (Criminal procedural
code of Ukraine, 2012).
On May 20, 2020, the Ministry of Internal Aairs of Ukraine approved
the Regulations on the Organization of Activities of Inquiry Units of the
National Police of Ukraine (Regulations on organization of activities of
Units of national institutional bodies, 2020). It determines that the inquiry
subdivisions are structural subdivisions of the central police administration
body, its territorial bodies - the main departments of the National Police
in oblasts, territorial (separate) subdivisions of the Main Directorates of
the National Police. Thus, they are subordinated vertically to the heads of
the Main Departments in the region, which is a classic management model
for police investigative units (as opposed to the vertical management of
interregional territorial bodies, such as patrol police, which are directly
subordinated to the Kyiv headquarters outside the regional leadership).
The powers of the head of the department (sector) of inquiry of the
territorial police body include the management of investigators, constant
monitoring of the operational situation in the service area, etc. That is, this
link performs the daily work of the head of the inquiry body. Its tasks include
the establishment of specialization of investigators in the investigation of
criminal oenses of certain categories, ie at the regulatory level provides
for the specialization of investigators. In particular, the Regulations on the
Organization of Activities of Inquiry Units of the National Police of Ukraine
provide for a separate inquirer regarding misdemeanors committed by
minors.
It should be noted that in practice there is no such specialization.
All investigators in accordance with the bylaws investigate all criminal
oenses, are universal experts. However, this does not mean that informal
units cannot develop informal practices to determine the specialization of
a particular investigator, for example based on his experience or special
knowledge of the subject or just skills, such as the ability to better establish
psychological contact with victims of violent crime. As specialization
is necessary to increase the eciency of inquiry, the introduction of
specialization of investigators by the National Police of Ukraine would be a
step in the right direction.
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Features of the functioning of the institute of criminal oenses in Ukraine
The powers of investigators are dened by separate articles of the CPC
of Ukraine (Articles 401, 214, 298-1). Unlike investigators, who can only
inspect the scene before entering information into the Unied Register of
Pre-trial Investigations, investigators have the right to: select explanations;
to conduct a medical examination; obtain the opinion of a specialist and
take readings of means of photography and lming, video recording
or technical devices with such functions; to seize tools and means of
committing a criminal oense, things and documents that are the direct
subject of a criminal oense, or which are found during the detention of a
person, personal search or inspection of things (Criminal procedural code
of Ukraine, 2012).
Prior to entering information into the Unied Register of Pre-trial
Investigations, the scene may be inspected, explanations selected, a medical
examination performed, a specialist’s opinion obtained and readings of
technical devices and technical means having photo and lming, video
recording, or photo and lming means, video recordings, as well as seized
tools and means of committing a criminal oense, things and documents
that are the direct subject of the criminal oense, or which were found
during the detention of a person, personal search or inspection of things.
Procedural sources of evidence in criminal proceedings concerning
criminal oenses are determined by explanations, results of examination,
expert opinion, photo and video materials in accordance with Art. 298-1
of the CPC of Ukraine. However, the study of the provisions of the CPC of
Ukraine showed the absence of provisions on the adoption of the relevant
procedural decision by the coroner, if as a result of the information entered
into the Unied Register of pre-trial investigations of procedural actions he
does not establish a criminal oense.
During the pre-trial investigation of criminal oenses it is allowed to
carry out all investigative (search) actions provided by the CPC of Ukraine,
as well as covert investigative (search), but only to obtain information from
electronic information systems or parts thereof, access to which is not
restricted by their owner or holder. or not related to overcoming the system
of logical protection and to establish the location of the electronic means
(Part 2 of Article 264 and Article 268 of the CPC of Ukraine) (Criminal
procedural code of Ukraine, 2012).
It is not without reason that the introduction of the institution of
misdemeanors is dened as the humanization of criminal law, as the
corresponding changes strengthen the provision of human rights during the
investigation. For example, a person who has committed a misdemeanor
can be detained only in exceptional cases: if a citizen refuses to stop the
misdemeanor or resists a police ocer; tries to escape from the scene;
refuses to comply with the lawful demands of the police during the pursuit;
is in a state of alcohol or drug intoxication and may harm himself or others;
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evades the bodies of pre-trial investigation or court. Detention of a person
who drove a vehicle in a state of alcohol, drugs or other intoxication or under
the inuence of drugs that reduce attention and speed of reaction, is carried
out for no more than three hours with mandatory delivery of such person to
a medical institution to ensure passage appropriate medical examination.
In addition, only two types of precautionary measures can be applied to
a person suspected of committing a misdemeanor – a personal obligation
and a personal guarantee.
The current CPC of Ukraine does not refer the investigator to the subjects
of petition for seizure of property (Article 171 of the CPC of Ukraine) along
with the investigator and prosecutor, although such a need constantly arises,
primarily for seizure of temporarily seized property during detention.
Also, the investigator is not referred to the subjects of the request for
such an investigative (search) action as a search, although it is common
in criminal proceedings. In practice, this is solved by the fact that such
requests are led by prosecutors, which creates an additional burden on
them, because the investigator can not participate in the consideration of
such a request by the investigating judge as a relevant participant in criminal
proceedings. In our opinion, such a problem should be solved by making
appropriate changes to the CPC of Ukraine. It also seems possible in which
such requests will still be accepted from experts with reference to Art. 40-1
of the CPC of Ukraine, which stipulates that the investigator is endowed
with the powers of an investigator during the inquiry, so he is identied
with such a subject of appeal as an investigator (Criminal procedural
code of Ukraine, 2012). However, such case law is not being developed
at the moment, as the courts, according to the inquiry management and
prosecutors voiced during the focus groups, simply do not accept petitions
from what they consider to be inappropriate subjects of appeal.
At the end of October 2020, the Inquiry Department of the National
Police of Ukraine asked the Supreme Court for clarication on this issue.
Although the explanations of the Supreme Court, unlike the legal positions
formulated as a result of the case in the cassation instance, are not binding
on the courts of rst and second instance, they are usually guided by judges.
Therefore, before making changes to the legislation, the problem can be
solved in this way.
At present, the practice of non-acceptance by investigating judges of
motions to seize property or conduct a search by investigators with reference
to their absence among the subjects of appeal to the court in the CPC of
Ukraine is not widespread. At the same time, there is an assumption that
such requests may be accepted, given that the investigator in the exercise of
powers is endowed with the powers of the investigator. Therefore, this issue
may not require legislative changes to be resolved, which will depend, inter
alia, on the future clarication of the Supreme Court.
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Features of the functioning of the institute of criminal oenses in Ukraine
Compared to the investigation of crimes, the terms of pre-trial
investigation of criminal oenses have been shortened. The pre-trial
investigation must be completed within 72 hours from the date of notication
of the suspect; within 20 days – if the suspect does not plead guilty or if it
is necessary to conduct additional investigative (search) actions, or if the
criminal oense was committed by a minor; or within one month – if the
person has applied for an examination.
If additional investigative and search actions are required, the inquiry
period may be extended up to 30 days. In exceptional cases, the pre-trial
investigation may be extended for up to two months. In addition, the terms
of the trial, which must be set within ve days of receiving the indictment,
have been shortened. And if a person is detained, a trial must be ordered
immediately.
The institute of criminal oenses has accelerated the average time for
pre-trial investigation and trial of minor criminal oenses, especially in
proceedings where the suspect pleads guilty. Compared with the term of
pre-trial investigation in 2 months with the possibility of extension to 6
months (but not more), provided by Articles 219, 294 of the CPC of Ukraine,
for similar criminal oenses of crimes of small gravity and part of medium
gravity, the terms of investigation were accelerated, in particular due to the
reduction of the upper limit. The available data give grounds to claim that
the term of pre-trial investigation of criminal oenses has been doubled by
normative restrictions of the term of inquiry (Krapivin, 2021).
We believe that the CPC of Ukraine does not clearly dene the terms
of inquiry, the countdown of which begins from the date of notication of
the person of suspicion. The legislator missed the indication of the term
of inquiry from the moment of entering the information into the Unied
Register of Pre-trial Investigations and until the person is notied of the
suspicion. If in respect of minor, serious and especially serious crimes,
the legislator species such deadlines in Part 2 of Art. 219 of the Criminal
Procedure Code of Ukraine, there is no such norm in relation to criminal
oenses in the specied code. The interrogators have rather short terms of
completion of the inquiry from the moment of notifying the person of the
suspicion of committing a criminal oense: 72 hours, 20 days and 1 month,
depending on the circumstances specied in Art. 219 of the Criminal
Procedure Code of Ukraine (Criminal procedural code of Ukraine, 2012).
With the amendments to the CPC of Ukraine regarding criminal
oenses, the legislator allowed quite frequent duplication of identical legal
relations in dierent articles of the CPC of Ukraine, which complicates the
understanding and application of these norms. In particular, the procedure
for extending the terms of inquiry is duplicated in paragraph 1, part 4 of Art.
219 and in Art. 294 of the CPC of Ukraine and leads to a misunderstanding
of the general term of inquiry, for which the prosecutor has the right to
extend it.
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The legislator, having established restrictions on the possibility of
extending the terms of inquiry in Art. 219 of the CPC of Ukraine (the term of
inquiry may be extended only for criminal oenses referred to in paragraphs
1 and 2 of Part 4 of Article 219), in Art. 294 of the CPC of Ukraine did not
specify these restrictions, which in practice may lead to confusion in the
application of this provision.
We also consider the legal regulation of the terms of detention of a
person who has committed a criminal oense to be not entirely successful.
In particular, in Part 2 of Art. 298-2 of the CPC of Ukraine species one
term of detention of a person – three hours from the moment of actual
detention, and in Part 4 of the same article – other terms of detention of a
person: 72 hours and 24 hours. Ocials with the right to detain a suspect in
a criminal oense are in accordance with Part 3 of Art. 298-2 of the CPC of
Ukraine «authorized persons» and “coroner”.
An investigator is an ocial of an inquiry unit of the National Police,
a security body, a body that monitors compliance with tax legislation,
the National Anti-Corruption Bureau of Ukraine, the State Bureau of
Investigation, or an authorized person of another unit of these bodies
within its competence. However, which ocial – the «authorized person»
or the «investigator» – has the right to detain a person for 3 hours, 72
hours and 24 hours, as well as whether the 3-hour detention period is
included in the 24 and 72-hour detention periods or whether separate term
of detention - the legislator did not provide an answer, which may lead to
dierent interpretations of these terms by the participants in the criminal
proceedings.
In accordance with paragraph 4 of Part 3 of Art. 214 of the CPC of Ukraine
to clarify the circumstances of a criminal oense before entering information
into the Unied Register of pre-trial investigations may be seized tools and
means of committing a criminal oense, things and documents that are
the direct subject of a criminal oense or found during the detention of a
person or reviewing things. Similar instructions are duplicated in Art. 298-
3 of the Criminal Procedure Code of Ukraine.
From the standpoint of elementary logic, this rule is incomprehensible.
The question arises: how can objects and things be removed before entering
information into the Unied Register of Pre-trial Investigations, if their
detection is possible during procedural actions (detention, personal search,
or inspection of things), which the investigator can carry out only after
entering information into the Unied Register of Pre-trial Investigations;
investigations?
The most controversial in terms of compliance with Art. 129 of the
Constitution of Ukraine and the general principles of criminal proceedings
(Chapter 2 of the CPC of Ukraine) is the possibility of using the court as
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Features of the functioning of the institute of criminal oenses in Ukraine
evidence in criminal oenses written explanations, testimony of witnesses,
victims, specialists and material evidence without participants in criminal
proceedings in a simplied manner court, when a person unequivocally
admits his guilt in the presence of a lawyer and does not want to participate
in the trial. In this case, the person is deprived of the right to appeal the
sentence. It is obvious that such a “simplied procedure” contradicts
the principles of adversarial proceedings, proving before the court the
persuasiveness of evidence, publicity of the trial to ensure unconditional
(see Article 129 of the Constitution of Ukraine) appellate review, as well as
the presumption of innocence, guilt, right to defense, immediacy of research
of indications, things and documents, publicity, dispositiveness, etc.
The Ukrainian legislator must ensure the avoidance of violations of
human and civil rights and freedoms by law enforcement agencies, which
may be caused by shortened investigation, duplication of certain provisions
of the CPC of Ukraine, lack and vagueness of regulations governing the
investigation of criminal oenses. After all, these problems are abusing their
powers, interpreting the uncertainty of the law in favor of the prosecution.
Conclusions
The analysis of the provisions of the criminal and procedural legislation
concerning the institute of criminal oenses introduced in Ukraine, as
well as the practice of their application, allowed to draw the following
conclusions.
In order to avoid restriction of a person’s rights and strict observance
of the amnesty dismissal procedure in the event of a criminal oense, the
Law of Ukraine «On the Application of Amnesty in Ukraine» needs to be
streamlined. It operates only with the concept of «crime» and does not use
the terms «criminal oense» and «criminal oense» oense».
The criminal law is subject to streamlining in terms of determining
criminal liability for preparing for a misdemeanor, as well as increasing
sanctions in the form of nes for committing criminal oenses that are
more socially dangerous than certain administrative oenses.
In order to increase the eciency of the investigation of criminal
oenses in the form of an inquiry, it is expedient for the National Police of
Ukraine to introduce specialization of investigators with a clear reection of
jurisdiction in the criminal procedure legislation.
The Criminal Procedure Code of Ukraine needs to supplement the
provision on the relevant procedural decision by the coroner, if as a result
of the information conducted before entering information into the Unied
Register of pre-trial investigations of procedural actions, he does not
establish the composition of the criminal oense.
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The Criminal Procedure Code of Ukraine should identify the coroner
along with the investigator and prosecutor as the subject of the search, as
well as request the seizure of property, primarily to seize temporarily seized
property during the detention of a person.
Bibliographic References
A NEW STAGE IN THE DEVELOPMENT OF CRIMINAL LEGISLATION OF
UKRAINE. 2018. (before the rst anniversary of the Law of Ukraine “On
Amendments to Certain Legislative Acts of Ukraine on Simplication
of Pre-trial Investigation of Certain Categories of Criminal Oenses”,
№ 2617-VIII). Available online. In: http://www.golos.com.ua/
article/348408. Consultation date: 22/10/2021.
AULIN, Oleg. 2020. Institute of Criminal Oenses in Ukraine. Public opinion
on lawmaking. Issue № 9 (194). PP. 26–28. Available online. In:
http://nbuviap.gov.ua/images/dumka/2020/9.pdf. Consultation date:
22/10/2021.
BOZHIK, Valery. 2020. Ensuring the rights of the individual during the pre-trial
investigation of criminal oenses. The dissertation on competition of a
scientic degree of the candidate of legal sciences on a specialty 12.00.09
- criminal trial and criminology; forensic examination; operational
and investigative activities. “Interregional Academy of Personnel
Management”. Kiev, Ukraine.
CRIMINAL CODE OF UKRAINE. 2001. № 2341 – III. Available online.
In: http://zakon5.rada.gov.ua/laws/show/2341-14. Consultation date:
22/10/2021.
CRIMINAL PROCEDURE CODE OF UKRAINE: Law of Ukraine. 2012.
№ 4651–VI. Available online. In: http: //zakon3.radakors.gov.ua/
laws/show/4651–17/print1458049476321499. Consultation date:
22/10/2021.
DEMIDOVA, Lyudmila, 2018. Criminal misdemeanor as a criminal procedural
novel and criminal legal problem. Criminal Procedure Code of 2012:
ideology and practice of law enforcement: a collective monograph. In:
Helvetica Publishing House. Odessa, Ukraine.
DUDOROV, Olexandr. 2013. “The concept of crime. Classication of crimes”
In: Bulletin of the Association of Criminal Law of Ukraine. Vol. 1, No. 1,
pp. 84-101.
262
Roman Lemekha, Volodymyr Rubtsov, Natalya Orlovska, Volodymyr Kantsir y Humin Oleksii
Features of the functioning of the institute of criminal oenses in Ukraine
FRIS, Pavlo. 2012. The issue of introducing the institute of criminal guilt. In: The
main directions of development of criminal law and ways to improve the
legislation of Ukraine on criminal liability: materials of the international
scientic-practical conference. P. 186.
KRAPIVIN, Evgen. 2021. Assessment of the introduction of criminal oenses
in Ukraine Prepared in the framework of the project of the Council of
Europe “Observance of human rights in the system of criminal justice of
Ukraine”. Kyiv, Ukraine.
KRASNYTSKY, Ivan; HORPYNYUK, Oksana. 2019. Introduction of criminal
oenses: analysis of changes to the legislation. In: Criminal and criminal
procedural legislation in the context of criminal justice reform: materials
of a scientic-practical seminar. Lviv State University of Internal Aairs.
Lviv, Ukraine.
LEGAL REGULATION OF THE INSTITUTION OF CRIMINAL OFFENSE.
Information reference prepared by the European Information and
Research Center at the request of the Committee of the Verkhovna Rada
of Ukraine. Available online. In: http: // euіnfocenter. rada.gov.ua/
documents/Request/73003.html. Consultation date: 22/10/2021.
LETTER OF THE NATIONAL POLICE OF UKRAINE №731 / 49 / 1-2020.
2020. In response to the letter of the Oce of the Council of Europe
№8665 / 2020/19/1 dated November 19, 2020.
MYKHAYLICHENKO, Tatiana. 2020. “Criminal oenses: features of legal
regulation” In: Entrepreneurship, economy and law. 7/2020. PP. 284-
290.
NÚÑEZ GRIJALVA, Jorge. 2021. “Valores jurídicos en la Regulación Penal de
la Competencia Desleal en Ecuador” In: Cuestiones Políticas. Vol. 39, No.
69, pp. 21-41.
ON AMENDMENTS TO THE CONSTITUTION OF UKRAINE. 2019. (on the
strategic course of the state to gain full membership of Ukraine in the
European Union and the North Atlantic Treaty Organization): Law of
Ukraine of February 7, 2019 № 2680-VIII / Verkhovna Rada of Ukraine.
In: https://zakon.rada.gov.ua/laws/show/2680-19. Consultation date:
22/10/2021.
OSTAPCHUK, Lyudmila; KLOCHAY, Daria. 2020. Criminal and legal
consequences of committing criminal oenses. National Legal Journal:
Theory and Practice. National law journal: theory and practice. Issue №
1. PP. 118–122.
263
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 245-263
REGULATIONS ON THE ORGANIZATION OF ACTIVITIES OF
UNDERSTANDING UNITS OF THE NATIONAL POLICE OF UKRAINE.
2020. Approved by the Ministry of Internal Aairs of Ukraine on May
20, 2020, by Order № 405 / registered in the Ministry34 of 20203434.
VOZNYUK, Andrii; ALEKSEYEVA-PROTSYUK, Diana. 2020. Criminal
misdemeanors: topical issues of making changes and additions to the
Criminal Code of Ukraine. Available online. In: http: // naiau.kiev.ua.
Consultation date: 22/10/2021.
ZINCHENKO, Iryna. 2019. On the issue of improving the concept of repetition of
criminal oenses in the current Criminal Code of Ukraine. In: Conceptual
principles of the new edition of the Criminal Code of Ukraine: materials
of the international scientic conference. Law. Kharkiv, Ukraine.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 72
