Advocates found a legal gaffe in the latest amendments to the CPC

Due to mistakes in legal technique made during the introduction of the next amendments to the Criminal Procedure Code, the rights of persons held in pre-trial detention or penitentiary institutions may be violated.

The UNBA Committee on Electronic Justice and Cybersecurity of the Practice of Law drew attention to this. They analyzed the Law No. 3604-IX of 23.02.2024 «On Amendments to the Criminal Procedure Code of Ukraine on Ensuring the Phased Implementation of the Unified Judicial Information and Communication System», which entered into force on March 16.

This law amended Article 336 of the CPC of Ukraine, which defines the procedure for conducting procedural actions via videoconference during court proceedings.

According to the rules of this article, if a person who will participate in court proceedings remotely is located in a building located in the territory under the jurisdiction of the court or in the city where the court is located, the court administrator or the court clerk of the court session of that court is obliged to hand such a person a memo on his or her procedural rights, check his or her identity documents, and stay with him or her until the end of the court session (part four in the old version; after the amendments - part seven, paragraph two).

When it comes to persons held in pre-trial detention or penitentiary institutions, such actions must be carried out by an official of such an institution (part nine of the new version). In this case, this provision uses the referential form: "actions provided for in part four of this article".

Although these rules should have remained essentially the same, the legislator, having changed the numbering of parts of Article 336 of the CPC, forgot to update the references to them! Therefore, the current CPC no longer obliges officials of pre-trial detention or penitentiary facilities to hand over memos on their procedural rights to persons who will participate in court hearings remotely, to check documents and to stay with them until the end of the court hearing.

Instead, if we read the provision of part nine of Article 336 of the CPC, it turns out that now employees of places of detention are obliged to file a motion to participate in a court hearing via videoconference instead of participants in criminal proceedings (sic!), as well as send copies of the motion to other participants in criminal proceedings. These are the procedural obligations contained in the current part four.

The Ukrainian National Bar Association informed the Verkhovna Rada Committee on Law Enforcement, which was in charge of drafting this Law, of the need to correct the mistake.