Legislative changes to the Code of Criminal Procedure of Ukraine regarding violence: what you need to know

Ukraine is taking more and more steps towards meeting the world community, democratic values ​​and the European future. One of these steps is bringing national legislation into line with European legal norms and recognizing and ratifying norms of international law in the form of conventions.

In 2022, Ukraine was one of the last to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence, or the Istanbul Convention, which is an international agreement of the Council of Europe that criminalizes and prevents violence against women and girls and protects victims .

In connection with the ratification of this convention, a law was recently adopted, which amends the Code of Ukraine on Administrative Offenses (KUpAP) regarding violence. It is currently being signed by the President of Ukraine. Lawyers of the “Repeshko and Partners” Bar Association commented on the legislative innovations specifically for the “FACT” IA.

The Istanbul Convention covers domestic violence (including psychological and economic), sexual violence (rape, including marital rape, and sexual harassment), honor killings and other crimes justified by “honor” (acid throwing, widow burning, bride murder, dowry death ), female genital mutilation, forced sterilizations, abortions and marriages, stalking and others. The Convention defines violence against women as a violation of human rights and a form of discrimination.

The law, adopted in connection with Ukraine’s ratification of the Istanbul Convention, provides for changes in the Code of Criminal Procedure – the following new articles have appeared, which determine administrative punishment:

• Article 137-6 of committing gender-based violence, i.e. the intentional commission of any actions (actions or inactions) of a physical, psychological or economic nature, directed against a specific person due to his belonging to a certain gender or stereotypical ideas about social roles (position, duty relationship, behavior, etc.) of a woman or a man in society, as a result of which damage was caused to the physical (without causing bodily harm) or mental health of the victim, – entails the imposition of a fine from UAH 1,700 to UAH 3,400 or community service for a period of twenty to forty hours, or corrective work for a period of up to one month with a deduction of twenty percent of earnings. Repeated within a year of committing a violation provided for in part one of this article, for which a person has already been subject to an administrative fine, entails the imposition of a fine from UAH 3,400 to UAH 5,100 or community service for a period of forty to sixty hours, or correctional work for a period of one to two months with deduction of twenty percent of earnings, or administrative arrest for up to ten days.
• Article 173-7 – sexual harassment, i.e. the intentional commission of offensive, humiliating acts of a sexual nature against a person’s will, expressed verbally or non-verbally (words, gestures, body movements), including using electronic communications, entails the imposition of a fine from 1360 UAH up to UAH 2,720 or public works for a period of twenty to forty hours, or correctional works for a period of up to one month with a deduction of twenty percent of earnings. Repeated within a year of committing a violation provided for in part one of this article, for which a person has already been subject to an administrative fine, as well as committing such a violation against a person who is financially, officially, or otherwise dependent on the offender, shall entail the imposition of a fine of UAH 2,720 up to UAH 3,400, or community service for a period of forty to sixty hours, or correctional work for a period of one to two months with deduction of twenty percent of earnings, or administrative arrest for a period of up to fifteen days.

Thus, as in many leading European countries, we will currently have a separate article that provides punishment for sexual harassment at the administrative level. At the same time, this article defines what exactly is considered sexual harassment, and what actions will be considered such. Liability for such actions is also separately strengthened if they occur at work, during service in the ranks of the Armed Forces of Ukraine, if a person is financially dependent. It is interesting that the article also covered modern means of information transmission, such as the Internet, instant messengers, or e-mail, noting that sexual harassment can also involve the use of electronic communications, and not just words or actions.

This is a progressive innovation, because it allows you to arrest the offender, while having strong evidence in the form of correspondence, photos, videos and audio files. The main thing in this case is to save the available evidence in a timely manner by copying, photographing, taking screenshots, saving in the memory of a computer or phone, since some messengers allow you to delete the sent information not only in your own correspondence, but also in the correspondence of the recipient.

In addition, Article 173-2 – perpetration of domestic violence, failure to comply with an urgent restraining order or failure to report the place of temporary stay – has been strengthened even more. It should be noted that, unfortunately, the number of cases in the “domestic violence” category is increasing. Yes, only in January 2024, a record number of criminal cases was registered – 435. This is almost twice as much as in the previous year. According to the General Prosecutor’s Office, almost 80% of open cases reach the court for consideration. However, the judicial statistics regarding administrative materials in this category are somewhat different – the case that reached the court and the case for which the decision on the imposition of punishment was adopted are completely different things. Administrative materials for this offense do not always have a high-quality preparation and evidence base, which gives the offender a sense of impunity.

At the same time, there are still more questions than answers. In particular, in Art. 153 of the Criminal Code of Ukraine (hereinafter – the Criminal Code) already provides for responsibility for committing any violent acts of a sexual nature, not related to penetration into the body of another person, without the voluntary consent of the victim, and therefore part of the actions referred to in the new article . 173-7 of the Criminal Procedure Code, are currently recognized as criminal offenses. At the same time, it is not yet known how these two articles and two responsibilities will be distinguished from each other. At the same time, if there is an investigation of a criminal offense, it is a longer and deeper process. If we are talking about an administrative offense, then this is, so to speak, a protocol form of recording the event, albeit with the selection of explanations, testimonies and the same video recordings, for example, if they are available.

The same issue concerns the proof of consequences under Article 137-6 of the Code of Criminal Procedure of Ukraine in terms of causing damage to the physical (without causing bodily harm) or mental health of the victim. In the conditions of limited proceedings on administrative cases, taking into account even more the terms of bringing to administrative responsibility, the mentioned problems will fall precisely on the persons who will draw up protocols for these offenses and collect relevant material.

Article 154 of the Criminal Code of Ukraine makes it a criminal offense to force a person without their voluntary consent to perform a sexual act with another person and to force a person without their voluntary consent to perform a sexual act with a person on whom the victim is materially or professionally dependent. Article 156 establishes responsibility for committing lewd acts against a person who has not reached the age of sixteen and the same actions committed against a minor or committed by family members or close relatives, a person entrusted with the responsibilities of raising the victim or taking care of him . Thus, conditions have now been created under which a person can avoid criminal liability for crimes committed by him, limiting himself to paying a small fine or community service (up to forty hours) of Art. 173-7 of the Criminal Procedure Code – sexual harassment.

We also emphasize that the commission of verbal, non-verbal or physical actions (including sexual overtones) without the consent of the person, which did not cause bodily harm, the purpose or effect of which is to humiliate the dignity of the person, in particular, by creating an intimidating, hostile, humiliating or offensive environment , and which are not related to penetration into the body of another person and do not pose a significant public danger, can be qualified, for example, according to related articles, namely – Art. 173 “Minor hooliganism” or under Art. 173-5 “Mobbing (harassment) of an employee” of the Code of Administrative Offenses of Ukraine, depending on which violation of relations will be the focus of attention. After all, the demarcation when defining a specific article will depend on which relationship or object the violator encroached on, as well as his other actions in general.

At the same time, from the positive side, we currently have the fact that the terms of bringing to administrative responsibility have been increased. According to Article 38 of the Code of Criminal Procedure, which establishes the terms of bringing to administrative responsibility, it is established that an administrative penalty for the commission of offenses provided for in Articles 173-2 (domestic violence) and 173-6 (commitment of gender-based violence) may be imposed within 6 months from the date of commission . This is a very positive innovation, as poorly prepared materials regarding domestic violence very often end up in court. In turn, the court has no choice but to return them to the police authority for further processing. But while the materials travel from the police to the court, the deadline for bringing the guilty person to administrative responsibility expires again along the same route in the opposite direction. Such a person feels impunity, and continues to commit violent acts, which leads to even worse consequences for the victim of such violence.

Also, the law introduced a ban on the release of the violator from administrative liability with the limitation of verbal remarks under Art. 173-2 – domestic violence and it is stated that in the case of persons between the ages of sixteen and eighteen years of age committing administrative offenses provided for in Article 173-2 domestic violence, they are subject to administrative liability on general grounds.

In the opinion of experts, the mentioned changes to the Code of Administrative Offenses of Ukraine are generally very necessary, but they require some refinement, taking into account the distinction with the Criminal Code of Ukraine and the specifics of recording and collecting materials for administrative offenses.

In any case, the main thing to remember when violence is committed, anywhere and against any person, is not to remain silent! Silence gives rise, so to speak, to society’s tacit consent for further similar actions by the perpetrator. And next time, the situation may concern not only a colleague, but also each of us personally or our close people. No rule of law can stop the violence without our help.