Print   

Unofficial translation

Decree of the Supreme Court No 13/2004

“On the Rights of Victims of Crime”

2 July 2004

On Court Practice of Application of the Legislation on Rights of Victims of Crimes The Constitution of Ukraine provides for the duty of the State to protect and ensure rights and freedoms of every individual. In this connection, correct and uniform application of provisions of the due criminal procedure legislation on rights of victims of crimes becomes particularly important. In order to ensure constitutional and procedural guarantees of rights of victims of crimes in the course of criminal justice procedures, and in connection with issues that emerged in court practices, the Plenary Session of the Supreme Court of Ukraine DECREES:

1. To draw attention of courts to the fact that consistent and implacable compliance with provisions of the criminal procedure law of Ukraine that provide for rights of victims of crime, is one of major preconditions for materialisation of citizens' rights for court protection from illegitimate acts, as declared in Article 55 of the Constitution of Ukraine.

2. According to paragraph 2 of Article 49 of the Criminal Procedure Code of Ukraine (referred hereinafter to as CPC), a person, who suffered moral, physical or material damage as a result of a crime, shall be granted rights of a participant of court proceedings only after his/her recognition as a victim of crime. A body of inquiry, an investigator, a prosecutor and a judge shall issue resolutions on recognition or non-recognition of a person as a victim of a crime, and a court shall issue a court order on these matters. Examining the issue of recognition of a person as a victim of crime, a judge or a court should identify specific damages incurred by a crime (moral, physical or property damages) and specify these matters in a resolution or in a court order. In cases of uncompleted crimes, a person shall be recognised as a victim of crime if he/she actually incurred moral, physical or property damages.

3. Persons, who incurred damages as a result of crimes committed by themselves cannot be recognised as victims of crime, at the same time, as law does not associate non-recognition of a person as a victim of crime with illegitimate nature of his/her actions, courts should recognise a person as a victim of crime if he/she provoked a crime against him/her by his/her actions. In this case, illegitimate nature of the victim's actions may be accounted for in legal assessment of actions of the defendant or in the course of awarding his/her sentence.

4. In the course of preliminary case examination, a judge, according to Article 237 CPC, has to check whether all persons who incurred moral, physical or material damages by a crime, have been recognised as victims of crime. If any of such persons has not been recognised as a victim of crime at stages of inquiry and pre-trial investigation, provided a relevant request, the judge should recognise such a person as a victim of crime by his/her resolution, notify the person on these matters and provide him/her opportunities to study materials of the court case. The judge should make the same decision if it is necessary to replace a person who was groundlessly recognised as a victim of crime, a representative of a victim or a civil claimant, by a due person. If recognition of a person as a victim of crime results in extension of charges against a defendant or in alteration of legal classification of actions he/she committed, a judge or a court should return the case for additional investigation, in compliance with requirements of Article 246 CPC or Article 281 CPC. A judge or a court should make the same decision if a body of inquiry or a body of pre-trial investigation substantially limited legitimate rights of a victim (e.g. to choose a legal representative, to make requests, to submit motions on dismissal, to submit evidence, to examine all case materials, etc.) and if it is impossible to restore these rights at the stage of court examination of the case.

5. According to paragraph 2 of Article 232 CPC, courts are obliged to respond by separate court orders (resolutions) to identified facts of unjustified delays in recognition of victims of crime (if there are clear signs of damages incurred by crimes), by bodies of inquiry or bodies of pre-trial investigation.

6. In cases of crimes that resulted in death of a victim of crime, rights under paragraphs 3 and 4 of Article 49 CPC, shall be transferred to his/her close relatives. As clause 11 of Article 32 CPC provides the inclusive list of such relatives (parents, spouses, children, full sisters and brothers, grandparents and grandchildren), courts cannot recognise other persons as victims of crimes in these cases. If several persons from the range of close relatives of a person, who died as a result of the crime, request granting the above rights, all these persons may be recognised as victims of crime.

7. A person who incurred damages and requested redress of these damages shall be recognised as a victim of crime and as a civil claimant. The person shall be granted all rights of a victim of crime and a civil claimant as stipulated by law.

8. If a minor or a legally incompetent person was recognised as a victim of crime, a court shall ensure participation of a legal representative of such a person in court proceedings, who should protect his/her rights and legitimate interests; in such a case, there is no need to secure agreement of the victim of crime for participation of his/her legal representative in court proceedings. After 18th birthday of the victim of crime, functions of his/her legal representatives shall cease, however, such legal representative may continue to participate in the case as a representative of the victim of crime (Article 52 CPC). According to clause 10 of Article 32 CPC, the range of legal representatives of minor or legally incompetent victims of crime incorporates only parents, guardians, wards or representatives of bodies and organisations, that fulfil guardianship/wardship functions in respect to these victims of crime. Courts cannot allow other persons to participate in court proceeding of relevant cases as legal representatives of these victims of crime. If a minor victim of crime does not have parents or other legal representatives, a court is obliged to ensure participation of a representative of the victim in the court proceedings (to be selected from from the range of persons, specified in Article 52 CPC).

9. Representatives of a victim of crime in the course of court proceedings may incorporate a lawyer, a legal representative, a close relative or other persons allowed to participate by resolutions of an inquiry officer, an investigator of a judge or by a court order. Such representative, whose powers are specified by a relevant certificate, has the same powers as the victim of crime and may act in parallel with the latter person and in lieu of the victim of crime. An adult, legally competent victim of crime has the right to dismiss his/her representative at any time and to protect his/her rights independently. If a representative abuses his/her powers to the detriment of a victim of crime, his/her participation should be terminated by a resolution of an inquiry officer, an investigator, a judge or by a court order.

10. According to Article 63 CPC, a person who was interrogated or is to be interrogated as a witness in a case, cannot serve as a representative of a victim of crime. In such a case, a court is obliged to inform an adult, legally competent victim of crime on his/her right to select another representative from the range of persons, specified in Article 52 CPC, or to ensure participation of a representative of a minor, legally incompetent victim of crime.

11. Interference in actions of a representative of a victim of crime, threats, violence, offences against his/her health or life, as well as deliberate destruction or damage of his/her property entail criminal sanctions under Articles 397 to 400 of the Criminal Code of Ukraine (referred hereinafter to as CC).

12. Courts are obliged to ensure participation of a victim of crime in court sessions. If the victim of crime failed to attend after being issued a warrant to appear, a court, according to paragraph 1 of Article 290 CPC, shall decide on further examination of a relevant case or on postponement of the session, depending on whether it is possible to ascertain all circumstances of the case and to protect his/her rights and legitimate interests in his/her absence.

Testimony of the victim of crime, submitted in the course of inquiry or preliminary investigation may be presented in cases, specified in Article 306 CPC. Examination of a case in absence of the victim of crime (his/her legal representative), without issuance of a warrant to appear in a court session, is a substantial violation of his/her procedural rights and may justify abrogation of a court sentence/verdict or another court order. In exceptional cases, for example, if it is necessary to ensure security of a victim of crime, a court may free him/her from participation in court proceedings, provided he/she preliminary certifies authenticity of his/her testimony, submitted in the course of inquiry or pre-trial investigation. Accounting for the fact, that obstruction of attendance of a court session by a victim of crime, as well as compelling him/her to refuse testifying, entail criminal sanctions under Article 386 CC; if the court identifies such facts in the course of trial investigation, the court, according to Article 278 CPC, shall issue a motivated order and a judge shall issue a resolution to notify a public prosecutor on these matters.

13. At a court session, a court is obliged to explain to a victim of crime and his/her representative their rights under Articles 49, 52, 521, 87, 871, 88, 267, 348, 384 CPC, moreover, the court is obliged to ensure materialisation of these rights. A victim of crime, who has the status of a civil claimant, shall be explained rights of a civil claimant, specified in Articles 50 and 268 CPC. If a victim of crime failed to submit a civil lawsuit in the course of pre-trial investigation, a court has to explain him/her right to do this at a court session, but before initiation of trial investigation proceedings.

14. According to requirements of Article 295 CPC, the chief judge at a court session shall explain to a victim of crime, a civil claimant (or their representatives) their rights and duties. If there are several victims of crime in a case, their rights and duties may be explained to them all collectively, however, it is necessary to ascertain whether they understand their rights and duties by asking every victim of crime individually.

15. After explaining a victim of crime his/her right to testify or to refuse testifying, a court should ask him/her whether he/she wants to use the said right. If the victim of crime agrees to testify, the court should warn him/her about criminal sanctions under Article 384 CC for patently false testimony.

16. A victim of crime, who does not know the language of the legal process, has the right to testify in his/her native language, and - if necessary - to use free interpretation services.

17. A court should ensure that, in the course of interrogation of a victim of crime, he/she is not asked questions that are offensive to his/her dignity, offensive to him/her personally and his/her close friends/relatives, as well as questions on personal matters that are not relevant for the case.

18. A victim of crime or his/her representative have rights to be ensured security if there are real threats to their lives, health, housing estate or property. Family members and close relatives of the above persons shall be granted the same rights, if they are under threats or other illegitimate acts, made to influence the victim of crime or his/her representative. Application of security measures in respect to the above persons shall be made only at the base of real information on a relevant threat. Grounds for application of the above measures in respect to the victim and his/her representative, and in respect to their family members and close relatives may differ. In particular, these measures shall not be applied in the case of a real threat to honour and dignity of the victim of crime (his/her representative), contrary to the case of their family members and close relatives. Security of the above persons should be ensured according to requirements of Law of Ukraine No. 3782-ХІІ of December 23, 1993 ‘On Ensuring Security of Participants of Criminal Justice Procedures’.

19. Accounting for the fact that, at a court session, a victim of crime is interrogated according to rules of interrogation of a witness (Article 308 CPC), a minor victim of crime under 14 years old (or under 16 years old, at discretion of the court) should be interrogated in presence of an educator, and, if necessary, in presence of a doctor, parents or other legal representatives (paragraph 1 of Article 307 CPC, Article 168 CPC). The court should explain the duty to tell truth to minor victims under 16 years old, but they should not be warned about criminal responsibility for patently false testimony. If presence of a defendant in a court session shall may adversely affect comprehensiveness and adequacy of testimony of a minor victim of crime, the court may interrogate such victim of crime in absence of the defendant, according to a court order. Besides that, the court is obliged to review appropriateness of presence of the minor victim of crime in the court session hall after his/her interrogation if a legal representative of the victim participates in the case.

20. To draw attention of courts to the need to ask a victim of crime, whether he/she was under threats, violence, bribery and other illegitimate acts of a defendant, his/her relatives and other persons made in order to persuade the victim to refuse to testify or to give patently false testimony. If such facts are identified, the court should review issues of submission of relevant materials to a public prosecutor and application of security measures in respect to the victim of crime. The court should similarly respond, if the court identifies that a victim of crime was compelled to testify by illegitimate acts of an inquiry officer or an investigator.

21. According to paragraphs 3 and 5 CPC of Article 161 and Article 261 CPC, a victim of crime participates in court proceedings at the side of prosecution and has the same rights as other participants of criminal justice procedures in submission and examination of evidence and in court assessment of evidence.

22. In the course of ordering and implementation of forensic examination, a court should ask for opinion of a victim of crime and his/her representative on necessity and appropriateness of the expert examination, and should ensure their active participation in formulating points to be examined by an expert. A psychiatric examination of a victim of crime with his/her hospitalisation may be ordered only at his/her consent, while in the case of a minor victim of crime under 14 years old, his/her psychiatric examination may be ordered only at consent of his/her legal representatives.

23. According to Article 277 CPC, if, in the course of court proceedings, a prosecutor alters charges against a defendant, the prosecutor should issue copies of the motivated resolution on the new charges to a victim of crime, his/her legal representative and his/her representative. If the resolution stipulates application of a criminal law that covers a lesser crime or reduces the charge, the court should explain to the victim of crime, his/her legal representative and his/her representative their rights to demand prosecution under previous charges. Opinions of the victim of crime (his/her legal representative and his/her representative) on the new charges should be documented in the court session protocol. If the prosecutor rejects the charge (paragraph 3 of Article 264 CPC), the court should explain to the victim of crime, his/her legal representative and his/her representative their rights to demand continuation of the case examination by the court and to support the prosecution, these matters should be noted in the court session protocol. Under such circumstances, opinion of the victim of crime is a priority for the court; because if the victim of crime does not agree with the prosecutor, he/she assumes prosecution functions and the court examination of the case shall continue; if the victim of crime agrees with the prosecutor, the court shall close the case. If a prosecutor altered charges or rejected charges in a case that is examined by a court in absence of a victim of crime, the court shall postpone examination of the case, to submit a copy of the prosecutor's resolution to the victim of crime and to explain him/her his/her rights to support prosecution under previous charges or to request continuation of the case examination and to support prosecution by him/herself.

24. The duty to prove and to take measures in support of a civil suit is that of the prosecution side. If relevant measures were not taken at the stage of inquiry or pre-trial investigation, a judge should decide on these issues according to clause 7 of paragraph 1 of Article 253 CPC. Taking into account that the main aim of criminal justice is associated with protection of rights and legitimate interests of participants of criminal justice procedures, courts must respond strongly, if, in the course of court proceedings, facts are identified, that suggest that relevant bodies fail to ensure or fail to ensure timely actual redress of damages inflicted by a victim of crime. Courts should apply their powers stipulated by law, to ensure such redress. Lawsuits on redress of damages that are not associated with relevant criminal charges cannot be examined in a criminal process. If such situation emerges, a court should explain a victim of crime the option to settle such disputes by civil law procedures. A court can refuse to examine a civil lawsuit only in two cases: if a civil claimant or his/her representative failed to attend a court session (Article 291 CPC, except in cases stipulated in paragraph 2 of Article 291 CPC); and if a defendant was acquitted on grounds of lack of elements of crime in his/her actions (Article 328 CPC).

25. Courts are obliged to ensure due review of citizens' submissions on crimes, if initiation of criminal cases on these crimes can be made only provided a victim's submission; courts must avoid unjustified refusals to initiate such criminal cases. At the same time, it is necessary to comply strictly with requirements of paragraph 1 of Article 27 CPC (criminal cases on crimes listed in the Article, can be initiated only provided a submission of a victim of crime or his/her legal representative). Such submission should clearly specify grounds for initiation of a criminal case, in particular: circumstances, time, a place, motives and consequences of the crime, a suspect, a request to prosecute the suspect, etc. To recommend courts to apply the institution of voluntary settlement of disputes between a victim and a defendant/accused to the maximal extent possible in cases of the above category (at the stage of preliminary case examination by a judge or at a court session, but before completion of the court investigation) and to support activities of non-governmental organisations that facilitate voluntary settlements prior to court examination; to inform persons who committed crimes on presence of such organisations in a relevant city (district); and to provide relevant information to the latter ones. On request of interested participants of court proceedings (an offender, a victim of crime, their representatives), a court may recess a court session and provide opportunities to these persons to apply to the above mediator for a voluntary settlement. If a victim of crime refused to use his/her right for a voluntary settlement, explained by a court and proved existence of sufficient evidence that a crime was committed against the victim, a judge shall issue a resolution on initiation of a criminal case and court examination of the case. If a crime of the above category was committed by a minor or by a person who cannot protect his/her interests due to physical/mental disabilities or due to other reasons, the judge shall submit the initiated criminal case to a public prosecutor for pre-trial investigation.

26. To draw attention of courts to the mandatory need to secure a verbal/written statement of a victim of crime on initiation of criminal prosecution of a defendant in cases under public prosecution, when results of court investigation suggest the need to alter category of a crime to an article of the criminal law that stipulates prosecution for crimes under requirements of paragraph 1 of Article 27 (cases under private prosecution). If the victim of crime refuses to make such statement and if there are relevant grounds, the defendant may be acquitted on grounds of lack of elements of crime in his/her actions. However, the victim of crime retains his/her right to apply to courts, demanding initiation of a criminal case, within a relevant limitation period as stipulated in Article 49 CC.

27. A judge cannot reject a submission of a victim of crime on criminal prosecution under paragraph 1 of Article 126 CC and Article 356 CC, if the submission was submitted to the court by the Public Prosecutor Office of by other competent bodies, according to procedures specified in clause 3 of paragraph 2 of Article 97 CPC. In the course of review of such submission, the judge is obliged to invite the victim of crime and study his/her opinion and other circumstances necessary for an adequate decision. In response to a submission on commitment of the above crimes, the judge is obliged either to initiate a criminal case or to refuse to initiate it, within terms specified in Article 97 CPC. If a criminal case was initiated, it should be scheduled for court review within terms specified in Article 256 CPC.

28. If a court receives a submission of a victim of crime and a counter-suit, a judge (provided relevant grounds) shall issue a resolution on initiation of a criminal case at the base of the counter-suit and schedule the case for court review. According to paragraph 4 of Article 251 CPC, the judge can merge counter-claims into one court case. Under such circumstances, the both claimants should be granted procedural rights of a victim and a defendant - as a result, it is necessary to ensure protection of the both rights.

29. In the course of court debates it is necessary to comply with requirements of Article 251 CPC. As persons without legal education may participate in the debates (a defendant, a victim of crime, civil claimants, etc.), prior to the debates, the chief judge is obliged to explain them the substance and aims of the above procedure. If a victim of crime and his/her representative participate in court proceedings, the both of them shall be granted the right to participate in court debates. If a court denies a victim of crime, a civil claimant, their representatives the right to speak, the denial can justify abrogation of the court verdict/sentence. If a representative of a civil claimant does not attend court debates, the court cannot use his/her absence as a reason to refuse reviewing a relevant civil lawsuit

30. In cases under private prosecution, in the case of merger of two counterclaims, floor should be given to participants of court debates once to each, the person, who was the first to submit his/her submission on initiation of the criminal case, should be given floor first. The both parties retain the right to cross-talk.

31. In the course of decision-making on redress of moral damages according to a lawsuit of a victim of crime, courts should rely on relevant provisions of the Civil Code of Ukraine and explanations of Decree No. 4 of Plenary Session of the Supreme Court of Ukraine of March 31, 1995 ‘On Court Practices of Review of Cases on Redress of Moral (Intangible) Damages’, as amended by Decree No. 5 of May 25, 2001.

32. According to paragraph 3 of Article 341 CPC, the chief judge is obliged to explain contents of a court sentence, terms and procedures of appeal against the sentence to a victim of crime and his/her representative. To assess positively practices of courts that submit a copy of a court sentence to a victim of crime, if relevant court proceedings were conducted in absence of the victim of crime.

33. Courts must comply strictly with requirements of due criminal procedure law of Ukraine pertaining to the protection of rights of victims of crime in the course of closure of criminal cases. If a person is discharged from criminal responsibility under Articles 7, 7-1, 7-2, 7-3, 8, 9, 10, 11-1 CPC, it is necessary to ascertain the opinion of a victim of crime on these matters.

A court must notify the victim of crime or his/her representative on the closure of the criminal case by issuing/sending to them a copy of the relevant court resolution, that, according to Article 12 CPC, may be appealed against by them according to appellate procedures.

In the case of closure of a case, a victim must be explained his/her right to file a civil lawsuit according to civil law procedures without the need to pay relevant fees.