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
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
Recibido el 23/09/22 Aceptado el 25/11/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
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-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
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Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
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Vol. 40, Nº 75 (2022), 114-123
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Ways of reforming the criminal and
criminal procedural legislation of Ukraine
in the context of European integration
DOI: https://doi.org/10.46398/cuestpol.4075.07
Oleh Kyrychenko *
Vadym Nehodchenko **
Vadym Davydiuk ***
Viacheslav Kuzyk ****
Oleksandr Mishchanynets *****
Abstract
The purpose of the research is to highlight problematic issues
and ways of reforming the criminal procedural legislation of
Ukraine in the context of European integration. Main content.
The article analyzes the current criminal procedural
legislation of Ukraine and that of European Union
countries. Methodology: The methodological basis of the research is the
dialectical method of scientic knowledge, through the application of this
method considered were legal, functional, organizational and procedural
aspects of methodological approaches to understanding of problematic
issues and ways of reforming criminal procedural legislation of Ukraine
in the context of European integration were considered. Conclusions.
Shortcomings of the Criminal Procedure Code of Ukraine have
been highlighted. Prospects of their reforming were outlined
and changes to the current legislation in the context of European
integration were proposed.
Keywords: judicial procedure; criminal procedural law; criminal
procedure; European integration; legislative reforms.
* Professor, Doctor of Law Sciences, Rector of Dnipro Humanitarian University (Professor of the
Department of Law, Dnipro Humanitarian University, Ukraine. ORCID ID: https://orcid.org/0000-
0002-2046-9522
** Professor, Doctor of Law Sciences, Professor of the Department of Law of Dnipro Humanitarian
University, Ukraine. ORCID ID: https://orcid.org/0000-0001-6643-2322
*** Doctor of Law Sciences, Honored Lawyer of Ukraine, Professor of the Department of Law of Dnipro
Humanitarian University, Ukraine. ORCID ID: https://orcid.org/0000-0001-8998-1981
**** Candidate of Law Sciences, Senior research ocer at the State Research Institute of the Ministry of
Internal Aairs of Ukraine, Ukraine. ORCID ID: https://orcid.org/0000-0001-5110-8220
***** Candidate of Law Sciences, Detective of National Anti-Corruption Bureau of Ukraine, Ukraine.
ORCID ID: https://orcid.org/0000-0003-4473-9432
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CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 114-123
Formas de reformar la legislación penal y procesal
penal de Ucrania en el contexto de la integración europea
Resumen
El propósito de la investigación es resaltar cuestiones problemáticas y
formas de reformar la legislación procesal penal de Ucrania en el contexto
de la integración europea. Contenido principal. El artículo analiza la
legislación procesal penal vigente en Ucrania y en los países de la Unión
Europea. Metodología: La base metodológica de la investigación es el método
dialéctico del conocimiento cientíco, a través de la aplicación de este
método se consideraron los aspectos: legales, funcionales, organizativos y
procesales de los enfoques metodológicos para la comprensión de cuestiones
problemáticas y formas de reformar la legislación procesal penal de Ucrania
en se consideró el contexto de la integración europea. Conclusiones. Se han
destacado las deciencias del Código de Procedimiento Penal de Ucrania.
Se esbozaron las perspectivas de su reforma y se propusieron cambios a la
legislación vigente en el contexto de la integración europea.
Palabras clave: procedimiento judicial; legislación procesal penal;
proceso penal; integración europea; reformas
legislativas.
Introduction
Today Ukraine is on the way to fundamental changes in the process
of European integration. However, rapprochement with countries of the
European Union creates the need to harmonize Ukrainian legislation with
the legislation of the member states of the European Union, to implement
in practice eective protection of rights and interests of an individual and
the society in general with the aim of establishing a condent position of
Ukraine on the global stage as a democratic and legal state.
Judicial practice throughout the world forms an impression of the level
of democracy of state power in a country and forms the level of public trust
in it. That is why quality of the criminal process and adopted court decisions
are of exceptional importance. Every person in Ukraine has the right to
legal, fair, impartial justice, appeal against illegal actions or inaction of
state authorities.
In Article 3 of the Constitution of Ukraine the Legislator declares the
status of Ukraine as a social state, where a person, his/her life, health, honor,
dignity, inviolability and security are the highest social value, and therefore
state authorities must provide an eective mechanism for protection of
violated and (or) unrecognized rights and legitimate interests of a person.
116
Oleh Kyrychenko, Vadym Nehodchenko, Vadym Davydiuk, Viacheslav Kuzyk y Oleksandr Mishchanynets
Ways of reforming the criminal and criminal procedural legislation of Ukraine in the context of
European integration
Criminal oenses constitute a signicant public danger (The Law of
Ukraine, 1996). It is the norms of criminal procedural legislation that are
of particular importance in the process of realization of a person’s right
to legal, fair, impartial, objective and transparent justice. The European
integration vector of Ukraine’s development necessitates harmonization
of Ukrainian criminal procedural legislation with the legislation of the
European Union.
The purpose of the article is to highlight problematic issues and ways of
reforming the criminal procedural legislation of Ukraine in the context of
European integration.
1. Literature review
During the Soviet period the closest approach to this topic was
represented in the fundamental work by Aleksieeva devoted to issues of
the eectiveness of the criminal procedural law (Aleksieeva, 1979). Among
modern works, the collective monograph “Theoretical foundations of
ensuring quality of criminal legislation and law enforcement activities in
the sphere of ghting crime in Ukraine” should be highlighted (Zelenetskyi,
2011).
Despite the lack of complex developments, in almost all works of modern
processualists devoted to the study of aspects of criminal proceedings,
the corresponding normative basis of their regulation is also analyzed
and, therefore, certain issues concerning quality of criminal procedural
legislation are investigated.
In the research plan, dening the concept of quality of criminal
procedural legislation is a necessary primary theoretical task on the way
to the development of a scientic concept of quality standards of criminal
procedural legislation with the prospect of its practical implementation.
The author of the article sets a goal to formulate basic theoretical tasks.
However, despite the deep research of the above-mentioned scientists,
today there is a problem of reforming the norms of the current criminal
procedural legislation of Ukraine in the context of European integration
processes through the positive experience of countries included to the
European Union.
In the research plan, dening the concept of quality of criminal
procedural legislation is a necessary primary theoretical task on the
way to the development of a scientic concept of quality standards of
criminal procedural legislation (CPL) with the prospect of its practical
implementation. The author of the article sets the goal to formulate main
theoretical provisions related to the denition of the category “quality
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of criminal procedural legislation”, and these provisions will be the
methodological basis for further scientic research and formulation of
quality standards of modern criminal procedural legislation in the light of
the updated national legal doctrine taking into account European standards
regarding perception of the fundamental requirement of supremacy of law.
High quality of criminal-procedural legislation is a fundamental condition
for eective implementation of the purpose of criminal proceedings. Only
a high-quality criminal procedural law is able to organize activities in
criminal cases in a way that its system could be simple, understandable for
all subjects of the proceedings, and to ensure that those of them who apply
the law could do this quickly and at a high level.
Loboiko notes that ensuring the eectiveness of criminal procedural
activity is one of the elements of the functional purpose of quality of the
criminal procedural law (Loboiko, 2017).
According to Yanovska, the right to appeal the decisions of a judge,
an investigating judge, the investigator, the prosecutor is one of the most
important guarantees of protection of rights and legitimate interests of
a person (Yanovska, 2013). The urgency of the above topics lies in the
need to form an eective mechanism for protection of rights, freedoms
and interests of a person in the criminal process by means of reforming
standards of the criminal procedural legislation in force.
2. Materials and methods
The research is based on work of foreign and Ukrainian researchers on
methodological approaches to understanding of problematic issues and
ways of reforming the criminal-procedural legislation of Ukraine in the
context of European integration.
Using the gnoseological method, the essence of methodological
approaches to understanding problematic issues and ways of reforming
the criminal procedural legislation of Ukraine in the context of European
integration was claried, thanks to the logical-semantic method, the
conceptual apparatus was deepened, the essence of the concepts of
problematic issues and ways of reforming the criminal procedural legislation
of Ukraine in the context of European integration.
By means of using the system-structural method, components of
methodological approaches to understanding problematic issues and ways
of reforming the criminal-procedural legislation of Ukraine in the context
of European integration were studied. The structural-logical method was
used to dene main problematic issues and ways of reforming the criminal
procedural legislation of Ukraine in the context of European integration.
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Oleh Kyrychenko, Vadym Nehodchenko, Vadym Davydiuk, Viacheslav Kuzyk y Oleksandr Mishchanynets
Ways of reforming the criminal and criminal procedural legislation of Ukraine in the context of
European integration
3. Results and discussion
Today Ukraine is going through a dicult road of European integration,
which makes it necessary to study a number of acts of international
legislation in order to adapt Ukrainian legislation to the legislation of the
European Union. If we examine the criminal and criminal procedural law of
the European Union (hereinafter – the EU), we should note that there is no
single normative act that would regulate criminal and criminal procedural
relations of the EU member states. Scientists note the inhomogeneity of the
EU criminal law and divide it into the following categories:
1. EU administrative and criminal law (the rules which contain the
basic EU bans and certain procedural rules which, due to formal
and political reasons, refer to administrative and legal rules).
2. Norms of EU law, which determine the specics of criminal law and
criminal process, which requires EU member states to take certain
measures in a certain way.
3. Criminal procedural law of the European Union, which contains
certain standards of performing criminal procedural activity as well
as peculiarities of international cooperation, extradition, etc.
4. Draft norms of the unied criminal law (Pashkovskyi, 2017).
In spite of this, countries of the European Union have experience of
eective criminal proceedings, which can serve Ukraine in the process of
reforming the norms of its criminal procedural legislation in force.
Despite the democratization of the norms of the Criminal Procedural
Code of Ukraine (hereinafter referred to as the CPC of Ukraine), practice
shows that there are signicant shortcomings in the process of implementing
norms of criminal procedural legislation (Law of Ukraine, 2013). Article 214
of the CPC of Ukraine provides for the procedure of ling and registration
of a criminal oense statement.
The legislator determined that a criminal oense statement must be
submitted by an investigator or prosecutor no later than 24 hours to the
Unied Register of Pretrial Investigations. However, such a norm does not
exclude the problem of late ling of information about a criminal oense,
as investigators and prosecutors have a habit of “sorting” such statements,
which leads to a violation of a person’s right to timely response of state
authorities to a committed criminal oense.
Also, Article 284 of the CPC of Ukraine provides that one of the grounds
for termination of criminal proceedings is the verdict on such criminal
proceedings. In the previous Criminal Procedure Code of Ukraine (Law of
Ukraine, 2013) the legislator envisaged that refusal to initiate a criminal
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case or terminate a criminal case in the absence of elements essential to
the oense (corpus delicti) made it impossible to initiate a similar criminal
case.
At present, the procedure provided for by the current CPC of Ukraine
causes the problem of initiation of criminal proceedings based on one and
the same fact. At the same time, it is sucient only to submit a statement
to the Register of Pretrial Investigations. This practice shows that even if
criminal proceedings are terminated, conduct of repeated investigative
actions in full is not excluded.
Scientists note that in the current Criminal Procedural Code of Ukraine
one of the novelties consists in increase of court control over the observance
of the rights, freedoms and interests of citizens. This control involves the
use by the investigating judge of measures to ensure criminal proceedings.
Statistical data show that the most common petitions for ensuring rights,
freedoms and interests of citizens are presented as petitions for temporary
access to things and documents. Such petitions are usually led by persons
acting for and on behalf of the accused person.
Access is granted only on the basis of the decision of the investigating
judge. Today, in our opinion, the legislator’s legal gap consists in the lack
of an exhaustive list of documents that must be attached to an above-
mentioned petition. This problem causes a large number of court decisions
on refusal to grant access to specied things and documents. Sometimes
judges themselves are careless about the issue of attaching necessary
documents to the respective petition, which could be of great importance
during consideration of the criminal proceedings.
There is also no clear mechanism for proving the need to withdraw
documents and/or things in connection with the threat of their destruction.
Therefore, we believe that there is a need to dene the norm in the Criminal
Procedural Code of Ukraine concerning the procedure and grounds for
withdrawal of things and documents (Leheza, 2022).
In our opinion, one of the shortcomings of the CPC of Ukraine is the
possibility to protect the rights, freedoms and interests of an individual
exclusively by lawyers. Experience of foreign countries (in particular that of
Germany) provides the possibility to perform the above function not only
by a lawyer, but also by other specialists in the sphere of law (Kyrychenko et
al., 2021). According to paragraph 138 of the CPC of the Federal Republic of
Germany, law teachers in German higher education institutions also have
the right to protect rights, freedoms and interests of individuals. In our
opinion, this practice makes sense in the criminal procedural legislation
of Ukraine, because teachers in the sphere of jurisprudence constantly
improve their scientic level in the process of teaching and can eectively
protect rights and interests of individuals in court (Holovnenkov, 2012).
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Oleh Kyrychenko, Vadym Nehodchenko, Vadym Davydiuk, Viacheslav Kuzyk y Oleksandr Mishchanynets
Ways of reforming the criminal and criminal procedural legislation of Ukraine in the context of
European integration
Lawyers note shortcomings of Articles 220-221 of the CPC Code of
Ukraine. According to Article 220 the CPC of Ukraine specied is the
procedure for consideration of petitions for the performance of any
procedural actions. Petitions led by the defense party, the victim and
his/her representative or legal representative, representative of the legal
entity in respect of which the proceedings are being conducted, must be
considered within a period of not more than three days from the moment
of submission and the above-mentioned request must be satised if there
are relevant grounds.
Results of consideration of the respective petition are informed to the
person this petition was led by. If there are grounds provided for by the
current legislation, a reasoned resolution is issued, a copy of this resolution
is delivered to the person the petition was led by, and in the event that
delivery is impossible for objective reasons, it should be sent to this person.
Article 221 of the Criminal Procedure Code of Ukraine, the legislator
envisaged the procedure for familiarization with materials of the pre-trial
investigation before its completion.
The investigator and/or the prosecutor is obliged, at the petition of the
defense party, the victim, the representative of the legal entity in respect
of which the proceedings are being conducted, to provide them with the
materials of the pre-trial investigation for review, except for materials on
application of security measures to persons participating in the respective
criminal proceedings, as well as except for materials which when provided
for familiarization at the respective stage of the criminal proceedings may
harm the pre-trial investigation.
Refusal to provide for familiarization of a generally available document,
the original of which is in the materials of the pre-trial investigation, is not
allowed. When reviewing materials of the respective pre-trial investigation,
the person this pre-trial investigation is conducted by has the right to
make necessary extracts and copies. Lawyers emphasize the legislative
gap regarding lack of time limits for notifying a person of the results of
consideration of his/her petition (Tymoshyn, 2016).
Article 303 the CPC of Ukraine considerably narrows the number of
persons who have the right to appeal the decisions, actions or inaction of
the investigator or prosecutor during the pre-trial investigation, as well as
grounds for such an appeal (Law of Ukraine, 2013). In particular, there
is no rule that would regulate the possibility to appeal against failure to
with reasonable investigation deadlines, as well as the procedure of ling
complaints by persons who do not have the status of suspects or victims
(Leheza et al., 2022).
Reconciliation agreements are also of scientic interest. Lawyer
Kyrylo Nominas analyzes expansion of opportunities for conclusion
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of reconciliation agreements. He notes that such broad opportunities
contribute to spread of corruption oenses and, subsequently, to failure
to fulll tasks of criminal proceedings. At the same time, he emphasizes
that despite these circumstances, if a court carefully examines materials of
criminal proceedings such situations can be avoided (Leheza et al., 2020).
When analyzing the criminal procedure in France, one can single out
two main features that distinguish it from the Anglo-Saxon legal system
and are subject to criticism by experts from Great Britain and the United
States of America. In France, judges are entitled with considerable powers
(Kyrychenko et al., 2021). The rst feature of the French criminal procedure
consists in the institution of preliminary examination of accused persons,
which is conducted by the respective presiding judge. The judge examines
suciency of the evidence to issue a guilty verdict. However, if the judge
has doubts about the decision on criminal proceedings, he has the right to
conduct the investigation himself, to visit the place of crime (Leheza et al.,
2022).
In our opinion, this practice is also reasonable for Ukraine. The issue of
appropriateness and admissibility of evidence is also important. Articles
87-89 the CPC of Ukraine has established the grounds and the procedure
of declaring evidence to be inadmissible. However, judicial practice shows
a large number of criminal proceedings against public persons, which the
court has been forced to terminate because of the lack of evidence, because
of inadmissibility or inappropriateness of evidence.
We believe that the legislative regulation of the evidence-gathering
process in the UK is a positive experience for Ukraine. According to the
UK’s criminal procedure legislation, every private individual, including
lawyers, has the right to conduct his/her own investigation and has the
right to collect evidence, and this evidence will be taken into account by
the court if the court considers it appropriate, even if it was collected from
the criminal procedural form and would be recognized as inadmissible in
Ukraine (Berladyn, 2012).
Conclusions
So, on the basis of the above, it can be concluded that the Criminal
Procedure Code of Ukraine was created in the spirit of democratic values,
but some of its norms need to be reformed in order to improve the
mechanism of protection of rights, freedoms and legitimate interests of
individuals. Today Ukraine is on the way to fundamental changes in the
process of European integration.
122
Oleh Kyrychenko, Vadym Nehodchenko, Vadym Davydiuk, Viacheslav Kuzyk y Oleksandr Mishchanynets
Ways of reforming the criminal and criminal procedural legislation of Ukraine in the context of
European integration
However, rapprochement with countries of the European Union creates
the need to harmonize Ukrainian legislation with the legislation of the
member states of the European Union, to implement in practice eective
protection of rights and interests of an individual and the society in general
with the aim of establishing a condent position of Ukraine on the global
stage as a democratic and legal state. Judicial practice throughout the world
forms an impression of the level of democracy of state power in a country
and forms the level of public trust in it.
That is why quality of the criminal process and adopted court decisions
are of exceptional importance. Every person in Ukraine has the right to
legal, fair, impartial justice, appeal against illegal actions or inaction of
state authorities.
Practical experience of France, the Federal Republic of Germany and
Great Britain is relevant.
Prospects for further research are as follows:
1. Studying experience of individual foreign countries in the context of
improving criminal procedure norms;
2. Analyzing possibilities to harmonize the Ukrainian criminal
procedural legislation with the norms of the law of the European
Union;
3. Developing an eective mechanism of mutual relations between
criminal procedure entities.
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www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en diciembre de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 75
