In recent years, in the field of criminal justice, we have seen a large number of reforms and legislative changes, the emergence of new investigative bodies. Despite some positive results, the key problems remain unchanged: inefficient use of resources; overloading of investigative bodies and courts; the overall low quality of the work of investigators and prosecutors.
The scale of these problems is illustrated by their destructive consequences: the investigation and judicial review of criminal proceedings lasts for years and decades; ineffective investigation of crimes that pose a high danger to society and the individual (violent crimes, drug trafficking); not involving especially dangerous persons who systematically commit crimes; difficulty in obtaining compensation for the harm caused by the crime.
The solution to these problems is associated not only with legislative provisions, but also with a change in approaches to the management of criminal justice bodies. Investigative bodies do not have their own strategic goals and priorities: there is a lack of understanding of the areas and categories of crimes, the focus on which is critical. As a result, the investigating authorities spend their working time on all crimes at once: theft of sweets from the supermarket, premeditated murder and car theft. This approach upsets the necessary balance between the resources spent and the result.
This problem is aggravated by the law, which requires the opening of criminal proceedings and an investigation of any complaint, even if it does not contain objective data on the crime. That is, the investigator must conduct a full-fledged investigation not to prove the crime, but to prove its absence. As a result, the investigative bodies are overloaded and in such conditions it is impossible to solve crimes efficiently and effectively. This increases the risks of corruption, since the victims are forced to look for ways to “motivate” the investigator to do their case.
Statistical indicators also lead to ineffective use of criminal justice resources
Therefore, the Criminal Procedure Code should provide for the right of the investigator, the prosecutor to refuse to open criminal proceedings on groundless statements. To prevent abuse, there should be a right to judicial review of such refusals.
Statistical indicators also lead to ineffective use of the resources of criminal justice – when the key criterion of efficiency is the number of criminal cases brought to court. This stimulates the investigator to engage in petty crimes that can be easily and quickly brought to court, than it takes a long time to investigate one, although it is especially dangerous, but difficult to prove. This “comfort zone” of the investigator significantly reduces his professional level. And sometimes the desire to keep up with the indicators entails the fabrication of cases.
Thus, the system of indicators should replace the management of criminal justice based on strategic goals. And it is also important to coordinate efforts with a clear delineation of the functions of various investigative bodies so that there is no duplication of work – a typical problem now is violation of jurisdiction, which leads to ineffective use of law enforcement resources.
In addition, these problems lead to overloading of the investigating authorities and courts. Expanding the powers of the victim and the private detectives involved by him to collect evidence will help unload the investigation. Alternatively, under certain conditions (for example, the inaction of the investigator), the victim can be given the rights of the prosecution, including the implementation of a report of suspicion and appeal to the court with an indictment.
We receive a large number of inquiries from foreign citizens and companies affected by the actions of fraudsters in Ukraine
In what category of crimes can a victim act as a prosecutor? This issue requires further study. Unambiguously, such rights can be granted to victims of property crimes. For example, in our practice, we receive a large number of requests from foreign citizens and companies that have suffered from the actions of fraudsters in Ukraine. In each of these cases, a situation arises when the investigator does not have the objective ability or desire to effectively investigate them. Under such conditions, it is quite difficult to achieve compensation for property damage, because it requires a significant amount of time and resources. The country’s reputation is suffering, and the investment climate is deteriorating. We are forced to work for the investigator, but the injured party does not have enough legal instruments for this. The right to file charges and conduct one’s own investigation is perhaps the only way to resolve the de facto collapse of the investigation.
Overloading of ships is a separate problem. The effectiveness of all criminal justice systems depends on the speed and quality of court proceedings. Consideration of most criminal proceedings now takes years, sometimes decades.
How to unload the courts? Again, it is a matter of priorities and simplification of procedures, not just the manning of courts. Does the investigator, the prosecutor need to obtain a decision on temporary access to things and documents in court, if the owner of the things and documents can refuse to provide them, and then all the same it will be necessary to apply to the court for a search? The right to temporary access can be transferred to the investigator, prosecutor.
The measure of restraint in the form of a personal obligation should be removed from judicial control and the right of its application should be transferred to the prosecutor. The practice of automatically applying for the selection of preventive measures in any case, even when there are no grounds for this, should be discontinued. As is the practice of transferring all volumes of criminal proceedings by the prosecutor for examination by the court, even when individual documents have no evidentiary value. The same applies to the automatic filing of appeals by prosecutors against sentences on the basis of the “leniency” of sentences, regardless of the existence of grounds for this. All of this wastes a limited resource of the judicial system. As a result, violent and other grave and especially grave crimes are considered for years, the quality of justice deteriorates, the rights of individuals are violated, victims cannot wait for fair justice and compensation for harm.
Criminal proceedings are like a train that moves in only one direction
Obviously, not all cases where there are suspects should be referred to the court, since at the beginning of the investigation there may be grounds for suspicion, and according to its results, it may turn out that the person did not commit a crime or the case does not have a forensic perspective. Now investigators and prosecutors do not have such flexibility in making decisions. Criminal proceedings are like a train that moves in only one direction – if a person is handed a suspicion, the case must be brought to court.
As for the legislative changes aimed at unloading the courts, such should be the simplification of the procedure for considering criminal offenses, transferring certain minor crimes to the category of misdemeanors and raising the threshold of criminal liability for crimes against property.
Denis Nenov, attorney at the Ilyashev & Partners Law Firm