Despite the state of war, Ukrainian courts and law-enforcement bodies continue to function in the territories not seized by ongoing active hostilities. The Verkhovna Rada of Ukraine, the Supreme Court and the Council of Judges of Ukraine have recently established the specific features during this period.
Criminal procedure
On 8 March 2022, the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine and Other Legislative Acts, related to Additional Regulation on Provision of Functioning of Law-Enforcement Bodies during the State of War” No. 2111-IX, dated 3 March 2022, came into force. The criminal proceedings must be conducted now regarding the following special considerations:
- a head of a prosecutor’s office may authorize to conduct a search, provisional access and seize property without a court order if the respective district court does not function;
- a prosecutor or an investigating judge may remand a person in custody for up to 30 days if a latter is suspected for one of the crimes in the expanded list. The new list includes almost all military crimes, murder, and several crimes against property (e.g., theft, robbery and brigandism);
- the terms of a pre-trial investigation may be suspended by a prosecutor’s resolution if a prosecutor is not able to submit an indictment to a court;
- the term of custody is automatically extended for up to two months if the court cannot hold a hearing;
- the duration of martial law or the state of emergency must not count toward the general term of a pre-trial investigation if there is no suspect in the criminal proceedings; and
- the Prosecutor General, a head of a regional prosecutor’s office and their deputies may transfer crimes, which are under the investigative authority of the NABU, for an investigation to other law-enforcement bodies if the NABU conducts investigation inefficiently.
Judiciary
The guidelines of the Council of Judges of Ukraine, dated 2 March 2022, and the letter of the Supreme Court “On Specific Issues on Criminal Proceedings in the State of War” No. 1/0/2-22, dated 3 March 2022, establish the specific features of functioning of the Ukrainian courts. The justice is currently being administered regarding the following special considerations:
- the territorial jurisdiction of 121 courts located in the active combat areas was changed;
- the courts may adjourn cases and extend procedural terms until the end of the martial law (which they do in practice);
- the courts are recommended to be less formalistic in consideration of cases, namely, to disregard absence of separate exhibits and other technical deficiencies of the procedural documents; and
- judges are recommended to consider the state of war as one of the reasons to extend the term of custody if there is no opportunity to examine all materials of the criminal proceedings.
