New Ukrainian Criminal Code a Triumph of Democratic Development

Ukraine’s Parliament, the Verkhovna Rada, has passed a new criminal code, introducing bail, jury trials, house arrest, settlements between suspects and victims approved by judges, and strict limits on pretrial detention. The reforms, the first to the criminal code in fifty years, are being hailed by civil society activists, defense lawyers, and others across the political spectrum as not only an improvement on the Soviet model but as a deliberate effort to align with Western norms.

It’s a safe bet that at least some European leaders will ignore this the next time they call Ukraine a nascent dictatorship. However, Ukraine has — either by accident or by design — happened on an insight that the Founders of the United States crystallized two centuries ago: the greater the number of intermediaries between the pinnacle of power and the criminal defendant, the greater the chances of justice. It is a counterintuitive insight, but one that has served America well, and looks to serve Ukraine well going forward.

One reform being particularly hailed is to recognize for evidentiary purposes only testimony given in the courtroom. (This is a safeguard not made in the United States in part because of our hearsay laws and in part because of the Common Law tradition.) Defense attorneys — and at times, even prosecutors — have complained that the old method encouraged aggressive interrogation of suspects to the point at which innocent men and women might be dragged into the system. The new reform is designed to cure the problem at the source.

Laws are of course only as good as the men who enforce them, and so further civil service reform — of judges, prosecutors, and police — is needed. Civil service reform in general has been a focus of the Yanukovych administration, and so the new code also includes a new body, the State Bureau of Investigation, to probe allegations of criminal offenses by officials, law enforcement and judges.

More will be needed out of simple inertia if nothing else; the men and women charged with enforcing the law have spent their adult lives relying on and working within the Soviet-era system, and so training, new personnel, and likely large-scale personnel turnover will be needed over time.

Some civil service activists are discouraged by the fact that a defendant must be represented by an attorney — and cannot represent himself — in court, as defense counsel are often expensive. Although the United States, for example, allows a criminal defendant to represent himself, indeed to fire his attorney in the middle of trial and proceed on his own, the freedom to represent oneself is largely unknown in most of the West, and likely will not be part of Ukraine’s court system for some time, especially with the work needed to implement the revolutionary new code and to begin accustoming its enforcement to the new rules. (Practicing lawyers know that nothing adds more chaos to a courtroom than a party representing himself.) Ukraine should look next at a public defense system for the indigent.

That shortcoming notwithstanding, this is a remarkable achievement. It is a lazy and inaccurate assertion — if an unfortunately common one — to compare Ukraine to Belarus, to assert that President Viktor Yanukovych is creating a dictatorship, to claim that the country is backsliding into tyranny. These assertions largely arise from politicians and media sorts easily fooled by Yulia Tymoshenko’s public relations machine, and so the recent elections — in which the several parties vote totals mirrored months of polling by independent and Opposition-aligned polling centers and included the rise of new Opposition parties — is counterfactually somehow support of this emerging despotism.

The same people so upset that Tymoshenko’s incompetent party did not manage to convince Ukrainians that it could speak of anything besides Tymoshenko will doubtless not care about the revolutionary changes happening in Ukraine.

But everyday Ukrainians will care. It is the rare despotism that holds free elections and that makes it harder to prosecute criminal defendants. Ukrainians will understand this, as will those who actually view Ukraine for what it is: a country struggling with its Soviet scars, but still looking West.

(Matthew Lina contributed to this piece.)

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