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Defense in the field of criminal law in Ukraine.

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“The new code of criminal procedure is in force in Ukraine, which replaces the previous one (introduced in

sixties and has remained virtually unchanged since then) and should lead to a significant

improvement in police stations, courts and prisons. The first improvement consists in

net reduction in detention awaiting trial, which from today cannot exceed twelve months for crimes

more serious ones and six for minor ones, compared to the three years previously foreseen, which often became one

extrajudicial sentence imposed arbitrarily. Another crucial step forward concerns confessions, starting today

valid as evidence only if produced in court, whereas until now they were valid even if reported to the police

in police stations - with methods that could have been imagined and even in the absence of the defender.

"European" concepts and practices are then introduced such as house arrest, freedom on bail,

the possibility of an agreement (similar to plea bargaining in Italy pursuant to art. 444, 445 c. p. p., ed.)

(before the judge) between offended parties and offenders, the criminal liability of police officers.

Finally, the jury is introduced in trials, similar to the Italian assize courts - at least in those for crimes

serious cases for which a life sentence is possible.

All positive things: but with sides that can instead lead to negative reflections. First, why

most of the "advantages" that the new code recognizes for defendants are in fact available only to those

he has no economic problems: not only because of the release on bail, but also because of the new and vast attributions

of competence to lawyers fall into a situation in which the latter are few, especially in the criminal field,

very expensive and not at all willing to offer free legal aid; There are no court-appointed lawyers and nothing makes you believe it

that all this can change in the short term. Furthermore, many suspect that the new measures will end up expanding

the already vast discretion of the judges.

What has just been described represents yet another step by Ukraine towards Europe. Obviously the way is

traced, now we need to follow it. 

As written above, in Ukraine if you really want to get hurt you have to improvise. Too often

this firm is forced to help compatriots who have fallen into dramatic situations. People

literally stripped of flesh by disreputable individuals. On this point, in order to avoid unnecessary repetitions

It is advisable to read the page on this site"Really present in Ukraine".  

 

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The above is taken, in part, from an essay on criminal law by a well-known Ukrainian lawyer and professor.

As the reader can well understand, in light of the above arguments it becomes decisive for every situation of a criminal nature to rely on a lawyer in whom one can and should have extreme trust.

In Ukraine, unlike Italy, the number of practitioners practicing the legal profession is small. Suffice it to say that in the first half of 2018, six lawyers registered with the Kiev Bar Association. Often, the lawyers themselves, at least at an extra-criminal level, were forced to use so-called prosecutors. This figure, spokesperson for the lawyer in charge, who is no longer admitted to Ukrainian courts starting from January 1, 2019.

 

Anyone who has the misfortune of coming across a criminal trial in Ukraine must immediately understand the need to contact a serious and prepared lawyer, with whom they can interface, speaking the same language in every sense, to do the same with the Italian institutions on site first and foremost the consulate and the family which is the only link with Italy.

Today, approaching dubious subjects can be a harbinger of misfortune.Evidently it is essential to understand each other  clearly and without misunderstandings, knowing who you are dealing with. In Ukraine there are also good translators, but in any case, it is necessary to find them first, it is not always easy and, often, in addition to being extremely expensive and reluctant to be present in prison and court, they can make fatal errors especially in understanding and reporting the terms well. of thelegal language.

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Those arrested are locked up in so-called temporary prisons. It is not entirely obvious for a defender to be able to quickly learn where the victim is, long searches and several days are needed. In Kiev alone there are twelve of these "preventive facilities" and the "computerized system" of the local police is dilapidated and obsolete. The situation in these places is terrifying. Up to 48 prisoners in large cells with no toilets and no air-conditioned water or heating.

It often happens that unscrupulous individuals, often boasting of important knowledge, if they see the possibility of squeezing a foreigner who is hypothetically wealthy, take advantage of such inefficiencies to intimidate him and his family in order to obtain large profits in the face of a terrible or non-existent service.  ;

To summarize: the Firm regarding what has been stated on the point  of criminal law defense, has a broad knowledge of the relevant law in Ukraine and Italy and is authorized in Ukraine and Italy to exercise all the rights of clients before all courts and appeal courts of both States. If necessary, the firm can present requests, appeals, produce documents and certificates, validate registers, register individuals, partnerships and applications.  The Firm also has the right to extract, forward and request certificates and copies on the socioeconomic status of any public or private entity.  

 

The Firm, viaof the lawyer Benedetto, Italian and Ukrainian criminal lawyer, guarantees, for anyone who needs on site, strong experience in the criminal law field. Furthermore, the firm has developed ad hoc appeals to ensure that the sentences issued by the Ukrainian authorities are annulled or declared null and void by the respective Italian courts of appeal,in order to avoid the provision being mentioned on the criminal record and execution pursuant to articles. 730 et seq Criminal Procedure Code.

What follows, on the subject of international criminal law and its applicability in Ukraine, cannot ignore the legal principles reported in the criminal code and in the constitution in force in Ukraine. Key principles from which neither the judge nor the institutions can deviate: 

1) If the persons referred to in paragraph 1 of this article (citizens of Ukraine and stateless persons permanently residing in Ukraine) have committed crimes outside Ukraine,crimes cannot be prosecuted in Ukraine for these crimes (art. 7, paragraph 2, current Ukrainian Criminal Code);

2)  judicial functions cannot be delegated to bodies other than state courts(art. 124 current Ukrainian constitution).

By resolution of June 2, 2019, Ukraine imposed in the current Constitution that Ukraine can recognise, (by adding the conditional can clearly and clearly) the sentences of the European Criminal Court and only for the crimes of genocide, war atrocities and similar. All the good intentions, the reflections, even academic ruminations, the legal hypotheses issued to try to resolve issues in Ukraine clash and fall against the aforementioned fundamental principles of law in Ukraine. Simply put, Ukraine does not prosecute citizens who have committed crimes abroad, except for extremely serious facts. In a nutshell, only crimes punishable by life imprisonment. Principles that can be defined as authentic "golden forks", probably artfully issued and aimed at protecting the Ukrainian citizen especially against the former USSR states. In Ukraine, violators of criminal laws abroad cannot be prosecuted, nor are decisions of bodies other than the courts of Ukraine admitted, recognized and enforceable in this State. In turn, the Ukrainian court cannot decide on events that occurred abroad as required by the art. 7 of the penal code. The legal short circuit created by the combination of the aforementioned rules means that any action aimed at obtaining a foreign judicial measure in Ukraine is not accepted. It would be illegal.

Unfortunately, too often this firm is forced to disappoint users who believe they will have easy satisfaction. against Ukrainians for matters that occurred abroad. 

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International criminal law and Ukraine.

In compliance with the above, it goes without saying that international criminal law in Ukraine is attenuated compared to the aforementioned Court. Within the general category of human rights, that is, those fundamental rights of every human being, expressly recognized on a normative level by the Universal Declaration of Human Rights (1948), a relevant meaning is assumed specifically by those rights for the protection of which international law provides for the use of criminal sanctions.

In other words, these are mandatory rights (ius gentium), such as those to the life and integrity of the person, to which are connected as many prohibitions, such as the prohibition of torture and the prohibition of genocide. In these cases, the legal system is not limited to providing for individual subjective legal situations in terms of rights/obligations, but - where an armed conflict occurs - reacts to the violation of the fundamental right, affirming the criminal responsibility of the individual, to whom such violation is attributable and providing for the application of the criminal sanction.

The complex of these rules is called International Criminal Law, the principles of which can be traced back, traditionally, to the experience of International Criminal Courts such as Nuremberg.

The repetition of situations such as the one under the jurisdiction of the aforementioned Tribunal has finally translated into the decision of the States to sign once and for all an agreement establishing an International Criminal Court, of a permanent and non-provisional nature, as had been the case up until that moment.

Over time, the in-depth analysis of the crimes judged by the various International Criminal Courts has led to the enucleation of  of the main human rights protected by International Criminal Law.

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Ukraine and the International Criminal Court.

On 8 September 2015, the Registrar of the International Criminal Court announced the filing of an application for acceptance of the jurisdiction of the Court (pursuant to Article 12, paragraph 3, of the Rome Statute) by the Government of Ukraine , albeit with stringent limits. On June 2, 2019, as indicated above, Ukraine constitutionally accepted the International Criminal Court, but only for crimes of international concern. Common crimes are not covered. 

As is known, these declarations have the aim of subjecting to the jurisdiction of the Court of The Hague crimes committed, at a time following the entry into force of the Rome Statute (1 July 2002), on the territory of a State which does not have is a party, but intends to oblige himself to cooperate with the Court, so that the perpetrators are punished. 

In the declaration of 8 September, implemented on 2 June 2019, the Ukrainian foreign minister represented to the Court his government's desire to extend its jurisdiction to conduct carried out on Ukrainian territory starting from 20 February 2014 (and for a duration indefinite), in accordance with what was decided by Parliament through the declaration of 4 February 2015.

Having said this, it seems possible to hypothesize, as regards the effects of the Ukrainian government's declaration, that the Court prosecutor will deal exclusively with all incidents that have occurred on Ukrainian soil since February 2014 and, only for sensational cases.

The declaration must be traced back to the Ukrainian government's desire to complete the process of joining the European Union. Title II of the Association Agreement with the European Union, signed on 21 March 2014, provides that Ukraine undertook to ratify the Rome Statute and the instruments connected to it and to adapt the state system to the relevant rules (see the “Guide to the Association Agreement”, p. 3). This obligation was carried out only for political reasons, but the lack of modification of the art remains. 124 of the Constitution, according to which judicial functions cannot be delegated to bodies other than state courts. If it is true that this change has been announced several times, the acceptance of the Court's jurisdiction through declaration could perhaps be traced back to the desire to execute (albeit in a nuanced manner, or rather reduced to the minimum terms). In fact, the jurisdiction of the court in The Hague is not recognized over all crimes committed in the territory of the country,but only on the conduct of organizations classified as "terrorist". This scenario, however, is inadequate to respond to the complexity of the situation as the Court is exclusively limited to judging extreme cases.

Having made this brief introduction, unfortunately the facts in the field of law in question are not very encouraging. In fact, the International Criminal Court in Ukraine is recognized as "ration materia". Even if we want to use other legal channels, often the distance of views of the respective systems, as well as the value that is given to a specific criminal behavior in a State, means that a precautionary or punitive decision issued by a foreign system does not find satisfaction in Ukraine, where it must be performed. The classic cases occur in those which by their connotation are crimes of intermediate social alarm. For example, a conviction issued by Italy regarding domestic abuse, physical and sexual violence, fraud, international child abduction, stalking, bankruptcy, etc. etc., would not find satisfaction in Ukraine. The lack of parallelism in Ukraine on certain crimes means that a judge in this state cannot apply the sentence or respond positively to the foreign decision or request. In other words, in Ukraine certain crimes are "tolerated" more than in the rest of Europe and vice versa. The above is combined with the fact that all States have an obligation to prevent and repress with the instrument of criminal sanctions crimes committed by individuals that prove to be harmful to the most important human rights. From here it peacefully emerges thatcommon crimes do not fall into these categories and, therefore, States can actually fail to prosecute them in Ukraine. In the event and only in cases of very serious crimes against humanity that Ukraine proves incapable or not determined in carrying out this task of protection and repression, the intervention of the International Criminal Court is envisaged. It is from this assumption that the Rome Statute of the International Criminal Court is based, stipulated on 17 July 1998, entered into force on 1 July 2002 and ratified to date by 122 States. The jurisdiction of the International Criminal Court, based in The Hague, is directed against individuals, not states, perpetrators of war crimes, genocide crimes and crimes against humanity. The limits placed on the jurisdiction of the International Criminal Court are not only those inherent to its way of being, i.e. its complementarity with the jurisdiction of the individual State: there are also other reasons of a political nature that hinder the performance of its institutional tasks. As many as three out of five of the permanent member states of the UN Security Council have not ratified the Rome Statute (United States, Russia and China).

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The firm constantly follows serious cases of crimes against compatriots that occurred in Ukraine or originate from citizens of this state.

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