Under oppression
The consequence of opression of the defense in the judicial proceedings is a low percentage of acquitting judgement.The insufficient percentage of acquittals in modern Ukrainian criminal proceedings mercilessly reminds the “Soviet legacy” and that the presumption of innocence still does not work in practice.
In developed countries with a high standard of living and professionalism in the administration of justice (for example, the USA), the amount of acquitting judgement is usually about 10%.
Despite the introduction of the latest reforms of the justice system and updating the criminal procedural legislation, the growth rate of the number of acquittals in Ukraine (from 0.24% in 2013 to 1% in 2019), to put it mildly, is not impressive. Moreover, if we were talking about a growth trend, then one could rejoice at the thought that in some 80 years we will reach the desired indicators. However, the percentage of acquittals that came into legal force in 2019 remained almost unchanged compared to 2018.
In search of reasons, the hypothesis about the perfection of the work of the investigating authorities sounds ridiculous, and the version of the relatively low quality of the work of the defenders is at least unfairly exaggerated.
It is clear that there are certain systemic obstacles, including those related to the independence of judges, the assessment of their performance in work, and certain vectors set by the state.
Without going into the analysis of the underlying factors, I would like to find out whether the “prosecutorial bias” is still used in the courts, or is this shameful phenomenon eliminated forever? To answer this question, here are a number of randomly chosen illustrations of routine actions that trouble defenders.
Imitation of consideration of complaints at a preparatory court session
The provisions of the Constitution (Article 55) and the Criminal Procedure Code (CPC) of Ukraine (Clause 17 of Part 1 of Article 7, Article 24) guarantee the right to appeal to the court against decisions, actions or omissions of an investigator and a prosecutor. The Constitutional Court of Ukraine (in its decision as of November 25, 1997 No. 6-zp) clarified that such complaints are subject to direct consideration in courts, regardless of the fact that the law could establish a different procedure for their consideration (appeal to a body, a high-level official). Ultimately, Article 303 of the CPC of Ukraine determines which complaints can be submitted during the pre-trial investigation to the investigating judge, establishing the rule that all other complaints can be the subject of consideration during the preparatory proceedings in court (part 2 of Article 303 of the CPC of Ukraine).
There are quite frequent cases when the court in one way or another avoids direct examination of the evidence
However, not all judges agree to consider complaints in preparatory proceedings, groundlessly refusing the defense party to exercise this right. Geting round the prescriptions of part 2 of Article 303 of the Criminal Procedure Code of Ukraine, the courts resort to certain non-procedural imitation in two common ways. Referring (contrary to the abovementioned norms) the impossibility of considering complaints in the preparatory court session, some judges indicate that they have “considered” the complaints (even citing some of their arguments), but in fact leave them without consideration. Others, on the contrary, claiming that they cannot consider the complaints, refuse to satisfy them (which seems to be impossible without consideration).
As you can see, both approaches contain deep contradictions between the motivational and operative parts of the decisions made, and they also violate the adversarial principle and significantly demotivate the defense side already at an early stage.
Establishing a Time Limit for Providing a Response to a Civil Claim
The Criminal Procedure Code of Ukraine (part 5 of Article 128) allows the application of certain norms of the Civil Procedure Code (CPC) of Ukraine in procedural relations arising in connection with a civil claim, but with an essential reservation – if they do not contradict the principles of criminal proceedings.
Based on the results of the preparatory court session, some judges consider it appropriate to determine for the defense a 15-day period for submitting a response to a civil claim and evidence by analogy with a civil procedure (Articles 178, 278 of the Code of Civil Procedure of Ukraine).
This is exactly the case when the norms of the Code of Civil Procedure of Ukraine are not applicable, since they obviously contradict the principles of criminal proceedings.
The essence of a civil claim in criminal proceedings is linked to the prosecution: the evidence of the prosecution is evidence in support of the arguments of the civil claim (and, conversely, the evidence of the defense on the essence of the accusation is also evidence against the civil claim). At the same time, according to the mandatory rule, the evidence from the part of prosecution is examined on a first-priority basis, and the evidence from the part of the defense are of the second (paragraph 7 of part 1 of Article 349 of the CPC Ukraine).
On completing of the preparatory proceedings, there is not and cannot be any evidence from the part of prosecution in the court case. Moreover, the court has not yet acquired the right to request from the accused his attitude to the civil claim (part 2 of Article 348 of the Code of Criminal Procedure of Ukraine), which has not yet been announced.
Such a borrowing of the norms of the Code of Civil Procedure of Ukraine (and the violation of the procedure and terms for the submission of evidence determined by the Code of Criminal Procedure of Ukraine) significantly limits the procedural possibilities of the defense, puts it in an unequal and deliberately disadvantaged position, and significantly violates the right to defense.
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Simulation of clarification and interpretation of the essence of the accusation.
The law (part 1 of Article 348 of the Criminal Procedure Code of Ukraine) imposes on the court the obligation to explain to the accused the essence of the accusation. This stage is preceded by the announcement by the prosecutor of a summary of the indictment act. Since there is no separate stage in the investigation of the indictment act by the court, one can come to the obvious conclusion that the purpose of these procedural actions is, first of all, for the court to find out the essence of the accusation in a volume sufficient to be able to explain it to the accused. The specificity and clarity of the accusation (detailed awareness of the accused) is an element of the right to a fair trial (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms).
However, in the opinion of many judges (after the fact of actions), most stages of the process are full of meaningless, purely formal actions that need to be served as quickly as possible without wasting time.
In the proceedings where the accused is charged with more than ten episodes with different qualifications, the prosecutor began to read out a summary of the indictment, but already in the middle of the second or third episode, the presiding judge stopped the prosecutor, using the court’s right to limit the duration of such an announcement (part 4 of Article 347 of the CCP of Ukraine).
Of course, it was not clear what the charges were in general from the announced fragment, however, it is obviously followed that the text announced by the prosecutor did not correspond to the text of the indictment handed over to the defense, as the defense counsel informed the presiding judge.
I remembered the answer: it was the legislator who limited you in the right to ascertain which accusation you should defend against.
The first important reaction to opression should be the appearance of first oral and then written comments and objections about the course of action.
The court also did not clarify the essence of the charge, appealing to the “common sense” and “higher education” of the accused, with which everything should be clear. As a result of such procedural actions, neither the court nor the accused clarified the essence of the charges.
Does this approach facilitate further fast and efficient litigation?
Simulation of evidence examination
The process of examining the evidence of the prosecution, based on the provisions of Articles 7, 23, 317, 358, 350 of the Criminal Procedure Code of Ukraine, should include the following chronological stages:
- Application (and justification) by the prosecutor of the claim for the filing of documents;
- Hearing the opinion of other participants in the proceedings (at the request of the prosecutor)
- Rendering a Ruling; d) if the motion is satisfied – examination of the documents by the court;
- Providing other participants with the opportunity to draw the attention of the court to the peculiarities of separate documents, the information specified in them.
When examining evidence, both sequence of actions and adherence to the basic principle of immediacy are important. The court examines the evidence directly (part 1 of Article 23 of the CCP of Ukraine). However, there are quite frequent cases when the court in one way or another avoids direct examination of the evidence.
In one of the proceedings in the High Anti-Corruption Court, formed with the participation of international experts, at the beginning of the trial, the prosecutor submitted a motion for the filing the documents, but during the announcement of his motion he actually announced these documents. After that, the defense was given the opportunity to comment on the motion filed (the documents were still in the prosecutor’s office). The defense side objected to the filing of some of the documents declared by the prosecutor, which did not withstand the criticism from the point of view of ownership and accessibility. After that, the documents were provided to the court and the court said that it was filing all documents to the materials of the criminal proceedings, and they had already been examined by the court. However, the court did not examine them at the hearing. They were all announced by the prosecutor before they became the materials of the criminal case.
This approach to the “examination” of evidence creates a strong impression of the bias of the court: knowingly, in advanced solved issue of filing all the materials that the prosecutor will provide, the court’s unwillingness to personally examine the evidence, paying attention to its features, the violation of the principle of direct examination of evidence by the court.
In fact, there is much more oppression then in this article.I have identified only the most paradoxical of the latter, in my subjective opinion.
The first important reaction to such and similar oppression should be a statement first of oral and then written comments and objections regarding the procedure for conducting actions (clause 10 of part 3 of article 42 of the CCP of Ukraine). This will allow to correct and prevent for the future cases of unconscious violations or record violations for further appeals in case of deliberate disregard of the law.
If these procedural actions are ignored altogether, the process becomes much simpler, easier and faster, however, this is unlikely to solve the problem of the low percentage of acquittals.
Source:Under oppression — Esquires
