Historical background of development and formation of the procedural status of a person in the criminal procedure in Ukraine

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National academy of the security service of Ukraine

Historical background of development and formation of the procedural status of a person in the criminal procedure in Ukraine

Smirnova V.O., PhD student

Abstract

In the paper an overview of the genesis of the procedural status of a person in the criminal procedure of Ukraine is provided, normative and legal regulation of the criminal procedural status of a person during the validity period of various legal documents is analyzed.

Key words: procedural status, criminal procedure, historical background, legislative regulation.

Introduction

The legal status of a person is a system of rights, freedoms and duties, as well as legitimate interests of a person as a subject of law, recognized and guaranteed by the state [1]. In the process of participation in certain procedural activity (criminal, civil, etc.), a person also gets certain procedural status, regulated by the relevant branch of law. Proper determination of the procedural status allows to minimize violation of the rights and legitimate interests of persons involved in procedural activity. The development of a democratic, rule-of-law state is impossible without a clear procedural consolidation of rights and duties, especially in the criminal process, since here the issues related to the restriction of rights and freedoms of the individual become the most urgent. At the same time, referring to the history, the normative and legal consolidation of the criminal procedural status of a person has not always been clear and depended on many factors.

Taking into account the above mentioned, the goal of the paper is to study the historical background of the development and formation of the procedural status of a person in the criminal procedure in Ukraine.

Analysis of recent research and publications

The problem of a legal status of a person in the criminal procedure, as well as the definition and realization of procedural guarantees of the rights and freedoms of citizens, was the target of research of the following scholars: S. Alpert, O. Belkova, T. Varfolomeeva, V. Galagan, M. Goshovsky, Y. Groshevyi, O. Zelenina, N. Karpov, N. Klymenko, O. Kuchinska, E. Lukianchikov, R. Nazarenko, M. Nikonenko, V. Nor, M. Pogoretsky, V. Tertyshnik, O. Shilo, M. Shumilo and others, whose scientific works became the basis for the study of the procedural status of a person participating in criminal procedure.

Presentation of the basic material

Scientists point out that almost every nation has experienced a period before the formation of state and law, when the trial and punishment of the law violators was executed by those who believed that they were victims, or by their relatives. With the historical development of society, such kind of struggle against the violation of rights became inadmissible. The transition from private punishment to the state trial in Ukraine was performed gradually. In this regard, the development of the criminal procedure in Ukraine can be divided into the following historical stages [2, 61]:

1. Judicial procedure of the princely age

Development of the Old Russian state was characterized by the acquisition of a special jurisdiction by the princely judiciary, which was the most powerful institution at that time. The documentary evidence of this was the Russkaia Pravda - the first legal act of Kievan Rus, that combined the rules of criminal, criminal procedural, criminal-enforcement, civil and civil-procedural law. However, in the Russkaia Pravda, the procedural status of persons who took part in criminal procedure was limited only to instructions concerning the actions they should perform as participants. At that time, the criminal procedure was of an indictment and actionable type, and combined the victim/prosecutor and, as a rule, the investigator in one person. This person defended his rights and freedoms on his own, therefore he supported his legal status himself. Often this person was also responsible for the appearance of the suspect in court. He was also the one to ensure the legal status of the suspect.

2. Judicial procedure of the Grand Duchy of Lithuania and the Polish-Lithuanian Commonwealth (XV - the first half of the XVII century)

Started when the Sudebnik by Grand Prince Kazimir entered into force in 1468. Kazimir borrowed a number of legal provisions from the Russkaia Pravda. However, the development of new social relations on the basis of private property, mostly of the privileged sector of society, determined the need to adopt new acts that would more particularly define the rights and duties of individuals, including those within the administration of justice. Thus, in 1529 the Statute of the Grand Duchy of Lithuania was adopted - it became the first general code of feudal law. In the first edition of the Statute some general rights of the individual and certain procedural rights were consolidated [3]. The second and third editions of the Statute increasingly extended the scope of the judicial procedure in general, and even contained the articles related to the exercise of the right to defense and the participation of lawyers. Another important achievement of that time was that during the pre-trial investigation in the criminal procedure, the gathering of evidence and the evidentiary process itself became the functions of officials of certain bodies, instead of participants in the process. After the adoption of the Lithuanian Statute in 1588, it became a source of law for all Ukrainian lands and was of utmost authority for many years there [4]. Under this statute, the criminal process was mostly adversarial, and the definition of the legal status of participants remained dependent on their general social status, first of all - property and birth status.

At the same time, the original judicial system and procedure existed in the Zaporizhian Sich, which was the beginning of the Ukrainian nation. The General Cossack Council was the supreme judicial authority. Judicial procedure was carried out in accordance with the rules of customary law, while the most important principle was the equality of all the cossacks before the court. Therefore their legal and procedural status was fundamentally different from the procedural status of the population in other regions of Ukraine.

3. Judicial procedure of the Hetmanate (the second half of the XVII - the end of the XVIII century)

After the Hetmanate's integration into Russia in 1654, the procedural norms that were formed during the Cossack era remained in force for a long time on its territory, although their dynamics towards the structural changes of the contemporary society was evident. Further differentiation of society by the property status was obviously reflected in the legal and procedural status of its members. The Lithuanian statute of 1588 also remained in effect.

With the beginning of the XVIII century Russian legal acts were adopted, among them of great importance was the nominal decree by Peter I on November 5, 1723 "On the form of the court." This decree cancelled the inquisitorial court procedure, and the court was recognized as its only possible form [5]. The criminal procedure became more and more inquisitional. The legal status of the participants was determined by their birth and property status, membership in the administration, other formal features. The prosecutor, defender and court were combined in one person, which determined its procedural status. At the same time, the accused person did not act as a party, and being the subject of criminal procedure was actually deprived of procedural rights. Thus, acquiring a status of an accused already deprived a person of almost all civil rights - to get them back, he had to prove his innocence himself.

While the Hetmanate age was characterized by the principles of legality, the presumption of innocence, permissive rule, openness, the right to defense, in the Russian criminal procedural law, these principles were in most cases not exercised, and the investigative type and closed nature of the process contributed to privacy and exercise of judicial functions by administrative authorities [2, 62].

It also should be mentioned that this period is characterized by the introduction of a new procedural institute - individuals with special knowledge, including translators, as well as specialists in various fields of knowledge, at that time - mostly physicians. Traditionally, doctors were involved in the investigation of criminal offenses as experts to determine the nature of bodily injuries [6]. Besides, there were recorded the first cases of inviting doctors to take part in judicial procedure as experts in the properties of certain substances (poisonous or healing). At that time, the involvement of individuals with special knowledge was not legally formalized and was performed by the order of the supreme authority.

4. The age of the Russian Empire till the Judicial reform of1864 (the end of the XVIII century - 1864)

The criminal procedure became, first of all, an instrument of protecting state interests and was of a definitely repressive nature.

Since the 80's of the XVIII century the system of judicial procedure of the Russian Empire had been finally established in Ukraine. In 1842 the norms of the all-Russian criminal procedural legislature came into force on the whole territory of Ukraine, which was part of the Russian Empire, in particular, the Code of Laws of the Russian Empire, adopted in 1835. In this law the procedure of crime detection, investigation and legal procedure were defined. Criminal procedural law became an independent branch of law [7, 68]. The criminal procedure was divided into 3 parts: preliminary investigation, trial and execution of judgment. The investigation was performed by the police, whose officers received a special legal status as the subjects of this activity. The criminal procedure was inquisitorial, and the main task of the court was to force the accused person to confess to the crime. The court had no right to question witnesses, and the testimony received during the investigation process was accepted as a basis for the decision in the matter. There was no defense, and the judicial investigation was closed.

Therefore, police investigators had the highest legal status in comparison with the accused person, whose rights were significantly curtailed. Court proceedings were mostly of a formal character. Testimony of witnesses was obtained at the stage of pre-trial investigation, after that their participation in the criminal procedure came to an end.

5. The age of the Russian Empire after the Judicial reform of 1864 (1864-1917)

legal criminal procedural status person ukraine

Is characterized by a new model of the criminal procedure, built on the principles of transparency, oral proceedings, adversarial system, equality of parties and presumption of innocence.

The Statute of the Criminal Procedure, adopted in 1864, established certain rights and duties of persons involved in the preliminary investigation, and also introduced certain definitions of officials, court investigators, police officers, prosecutors and defendants. However their powers were not clearly outlined and differentiated [8, 142].

The Statute contained the provisions of the Code of the Laws of the Russian Empire on persons with a special knowledge: "doctors, pharmacists, professors, teachers, technicians, artists, artisans, financiers and those who have a big experience and a profound knowledge in any sphere".

6. The age of the Ukrainian Central Rada, the Ukrainian state under P. Skoropadsky and the Directory (1917-1920

The procedural legislation of this time was based on the basic principles of legal proceedings typical for a democratic society: promoting legitimacy, openness, establishing the truth in a matter, inviolability of a person, presumption of innocence of a person being under investigation, absence of birth or national privileges, observance of publicity and oral proceedings, compulsory preliminary investigation in criminal cases, granting the right to administer justice only to the authorized judicial authorities, the equality of all participants in the judicial procedure before the judicial authorities and binding nature of court judgments. In the legal system, the adversarial principle was used.

7. The age of the Union of Soviet Socialist Republics (hereinafter - the USSR) (1921-1991

The main feature of which was the dependence of the judicial authorities on the party bodies, rigid centralism, the subordinate status of the judicial procedure in relation to the executive authorities. The criminal procedural law did not provide adequate legal guarantees of the rights of the individual and often contradicted with the practice of the criminal procedure.

During 1922-1924 in the Ukrainian Soviet Socialist Republic (hereinafter - Ukrainian SSR), the codification of the law, including the criminal procedural law, took place. The First Code of Criminal Procedure (hereinafter referred to as the CPC) of the Ukrainian SSR was adopted by the All-Ukrainian Central Executive Committee on September 13, 1922. It was a comprehensive legislative act regulating criminal procedure within pre-trial investigation bodies and courts and defining the powers of the prosecutor offices at all stages of the criminal procedure. Among the participants in the criminal procedure were: accused person(s), witnesses, experts, translators and investigators who had their procedural rights. This normative and legal act proclaimed such democratic principles as: publicity, oral proceedings and directness of the court proceeding, its adversariality; court proceeding in the language of the majority of population with the right to have translator for those who do not speak this language; equality of the parties; the right to defense for the accused.

In 1924, the Union authorities adopted the Fundamentals of Criminal Proceedings of the Ukrainian SSR and the Union Republics, which led to the necessity to harmonize the laws of the Ukrainian SSR on criminal justice with all-Union laws. In 1927 the CPC of the Ukrainian SSR was adopted, with many articles remaining since CPC of the Ukrainian SSR, 1922. However, the new Code extended the rights of investigators and prosecutors to close criminal cases in the absence of the event of a crime. The Code contained provisions that directly contradicted the legal norms. Thus, the investigators were forbidden to refuse to accept a case for the criminal procedure or to close it because there was no punishment for a socially dangerous act in the Criminal Code of the Ukrainian SSR.

Subsequently, in 1927, the CPC of the Ukrainian SSR was significantly amended. There were contradictions between the various rules of procedural law that acted at the all-union and republican levels, as well as between them and the constitutions of the Ukrainian

SSR and the USSR. Call of the times was a radical update of the criminal procedural law, which took place with the adoption of the Criminal Procedure Code of the USSR in 1958 and subsequent adoption of the codes of Union republics on its basis.

The CPC of the Ukrainian SSR was adopted on December 28, 1960, and was brought into force on April 1, 1961. In the Code the requirements for the inquiry bodies, investigators, prosecutors and the court were introduced. They were: to identify, in the course of proceedings, the causes and conditions that contributed to the commission of the crime and to take measures to eliminate them. The public participation in crime prevention was broadened, in particular, by involving people into the court proceedings as people's assessors, public prosecutors and public defenders. The rights of the accused and their defense were substantially expanded, namely the latter one was allowed to participate in the preliminary investigation. The rights of the affected party and other participants in the criminal procedure were also expanded [9]. Thus, the institute of procedural status of participants in the criminal procedure was restructured and substantially expanded. The process has gained prominent signs of adversarial- ity and openness.

8. Age of modern Ukrainian nationhood (1991 - till present

Since 1991, due to the changes in public life of the country, the issue of ensuring the equality of procedural rights of the parties in proving has been raised, which, in turn, proved the need to reform the Bar Association. This problem is characterized as a "problem of adversariality" in criminal procedure. The concept of judicial reform in Ukraine [10] indicated that "the courts did not always effectively protect the rights and freedoms of population, operated as an important tool of the command and administration system and were forced to exercise its will. The court had no authority, while the authorities used the court uncontrollably". In this view, there was made a conclusion that "judicial reform should bring the judicial system, as well as all branches of law in line with the socio-economic and political changes that occur in society."

Substantial changes were also made to the procedural status of special participants in the procedure. Thus, the law "On the Bar", December 19, 1992 and then the law adopted on June 21, 2001 significantly expanded the rights of a lawyer in criminal procedure. The priority tasks of criminal procedure include the protection of the rights and legitimate interests of individuals and legal entities that participate in it.

At the same time, the procedural control of the court over the bodies of pre-trial investigation and inquiry was enhanced. A norm of law that obliges in a case of person's detention to notify his/her family or other relatives, was introduced which substantially increased the transparency of the procedure and created additional opportunities for the protection of personal rights. It became possible to challenge the decision of the investigator, the inquiry authority, the prosecutor concerning the refusal to initiate or to close the criminal case, which affected the legal status of both these individuals as well as other participants in the procedure.

Conclusions

The analysis of historical documents showed that the grounds and procedural order of determining the status of participants in criminal procedure have gone a long way of formation and development. Initially, the legislators at different times did not pay enough attention to this issue, which led to a mismatch between the actual situation and the status of a person. Property and social status of a person was crucial in determining his procedural status in criminal procedure. However, evolutionary processes, development of a democratic and rule-of-law state, the integration of national legislation into the European legal framework has led to the harmonization of Ukrainian criminal procedural legislation with the call of the times and the requirements of social and legal relations.

However, this process is not complete. With the development of society and legal science there will be further changes aimed at specifying and determining the extent of the rights of such persons, since the historical retrospective indicates that such progress is not permanent and only time determines the duration of new procedural rules and provisions.

References

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