CASES WHERE THE VICTIM’S DENIAL OF THE PROSECUTION IS NOT SUFFICIENT ARGUMENT
At the beginning of 2019, amendments to the Criminal Procedure Code, which clarified the rules of procedure in the form of private prosecution and enforcement on the basis of agreements, came into force. From now on, domestic violence will have to be brought to justice, since the refusal of the victim to prosecute will no longer be the basis for closing criminal proceedings.
Such changes are conditioned by Ukraine’s accession to the Council of Europe Convention on the Prevention and Combating of Violence against Women and Domestic Violence. In particular, with a view to implementing the provisions of the Convention, the rules of procedure in the form of private prosecution, including domestic violence, illegal abortion or sterilization, coercion, marriage, sexual violence (Part 1 of Article 153 of the Criminal Code) have been specified. Paragraphs 2 and 3 of Part 1 of Article 477 of the CCP are, in their turn, excluded. It is stated that the grounds for closing criminal proceedings related to domestic violence cannot be the refusal of the victim or his representative to prosecute.
These changes give rise to the question of their correlation with the provisions of the Convention and the expediency of excluding articles 2 and 3 of Part 1 of Article 477 of the CPC.
Article 55 of the Convention provides that the parties shall ensure that the investigation or prosecution of offenses under Article 35 (physical violence), Article 36 (sexual assault, including rape), Article 37 (forced marriage), Article 38 ( female genital mutilation) and Article 39 (involuntary abortion and forced sterilization) of this Convention shall not be wholly dependent on the notification or complaint made by the victim if the offense was committed in whole or in part within its territory, and that the proceedings could continue if the victim withdrew with Java or complaint.
As stated in the Explanatory Report to the Convention (CETS No. 210, para. 280), the competent authorities must respond promptly and directly to actions that result in serious bodily harm or resulting in the loss of life. Given that many of the offenses covered by this Convention are perpetrated by family members, intimate partners, or persons close to the victim who are left feeling ashamed, fearful and helpless, there are very few allegations made, therefore, there are few convictions. Therefore, law enforcement agencies should investigate prospectively: collect material evidence, testimony, medical examination results, etc. that will allow the victim to have his or her complaint or complaint withdrawn in the event of severe violence, such as physical injury that led to death or personal injury.
How to act?
Pursuant to Article 477 of the CCP, in the form of private prosecution proceedings are being carried out on the crimes provided for: Article 1261 (“Domestic violence”), Article 134 (“Illegal abortion or sterilization”), Article 1512 (“Coercion to marriage” ), Part 1 of Article 152 (“Rape”), Part 1 of Article 153 (“Sexual Abuse”), Article 154 (“Compulsion for Sexual Intercourse”) of the Criminal Code. That is, it does not comply with the convention in part so that “the investigation or prosecution … does not depend entirely on the notification or complaint made by the victim.” This, in turn, calls into question the effective implementation of the Convention.
In addition, under item 7 of Part 1 of Article 284 of the CPC, criminal proceedings are closed if the victim, and in the cases provided for by this code, his representative refused to prosecute in the form of private prosecution, in addition to the crime, related to domestic violence. This generally corresponds to the provisions of Article 55 of the Convention that “proceedings may continue even if the victim withdraws his or her application or complaint.”
Also, the wording of Article 284 of the CCP does not answer the question: the effect of this rule applies only to the crime envisaged by Article 1261, or to other types of crimes also, based on the definition of “domestic violence” contained in paragraph 3 h. 1 Article 1 of the Law “On Prevention and Countering Domestic Violence”? In the latter case, it covers the possibility of qualifying for other types of crimes, but depending on the subject of their commission (in the family or within the place of residence, or between relatives, or between former or current spouses, or between other persons jointly live (have lived) with one family, but have not (have not been) married or married).
Exceptions are not justified
Separate consideration is required as to the expediency of excluding paragraphs 2 and 3 of Part 1 of Article 477 of the CPC. In general, most seized crime scenes are manifestations of domestic violence. Therefore, their conditional “transfer” to a public prosecution seems logical from the standpoint of Article 55 of the Convention. However, violations of the rules of road safety or the operation of the vehicle by the persons who operate it do not, without aggravating circumstances, fit into this logical translation scheme. Such an offense does not always have signs of domestic violence.
The provisions of paragraph 3 of Article 477 of the CPC were also deleted, which stipulates that in the form of a private prosecution a number of crimes are carried out if they are committed by the husband (wife), another close relative or family of the victim or the victim hired worker and caused damage exclusively to the property of the victim. And if it is possible to agree with the first part in the light of countering domestic violence, it is unclear why the crimes committed by a hired worker were “publicized”.
After all, what public interest in condemning a person who committed, for example, theft at an enterprise, then repented and compensated for the harm? Or, given the difficult life situation of the employee, did the victim forgive him this act? Therefore, the decision to remove this paragraph in its entirety is ill-considered, and in the part of labor relations, that does not take into account the private interest of the victim and the world tendencies in the application of alternatives to criminal prosecution in modern criminal justice systems, reflected, in particular, in Recommendation No. 6R (87 ) 18 of the Committee of Ministers of the Council of Europe to the Member States on “Simplifying Criminal Justice”.
Reconciliation with the victim
Article 48 of the Convention provides that the parties shall take the necessary legislative or other measures to prohibit compulsory alternative dispute resolution processes, including mediation and reconciliation, in respect of all forms of violence within the scope of this document.
Accordingly, the CCP states that an agreement on reconciliation in criminal proceedings for domestic violence can only be concluded at the initiative of the victim, his or her representative or legal representative. If the actions or interests of the legal representative contradict the interests of the person he represents, at the decision of the prosecutor, the investigating judge, the court shall replace such legal representative by another of the persons defined in Article 44 of this Code.
In addition to the issue of interpretation of the concept of “domestic violence”, which was discussed above, there are doubts about the court’s ability to initiate an agreement if the parties do not wish to report it or to provide false information. Therefore, there is no confidence in the reality of the application of this rule.
Author: Andrey Kubov