Modernization of the Criminal Codes of Procedure: What’s on the List

2017-12-07

KYIV - December 7, 2017. The Ukrainian Bar Association held a round table entitled "5 years of defense  under the new rules. The need for modernization of the Criminal Codes of Procedure of Ukraine. What is on the list?", devoted to practical aspects of the application and modernization of the Criminal Codes of Procedure  of Ukraine in terms of the adversarial principle and the right to defense.

This is the second event in the series. The first round table took place in Lviv on December 5, 2017.

The round table was organized within the framework of the grant initiative "Effective application and modernization of the Criminal Codes of Procedure of Ukraine in the light of the adversarial principle and the right to defense", which is being implemented by the Ukrainian Bar Association with the financial support of the Council of Europe Project "Continued Support to the Criminal Justice Reform in Ukraine".

Denys Bugay, partner at VB PARTNERS, President of the Ukrainian Bar Association (2013-2017) and Ketevan Tskhomilidze, Project Manager of the Council of Europe " Continued Support to the Reform of Criminal Justice in Ukraine" addressed the audience with a welcoming speech.

Ketevan Tschomelidze thanked everyone who put effort to the improvement of the criminal procedural law, and noted that importance of dialog between the stakeholders. Five years is a sufficient period for testing and understanding problems and grounds for improvement.

Denys Bugay drew guests' attention to the fact that, following the results of the discussion, a report will be prepared with proposals for improvement of legislation, which will be sent to the participants of the discussion and distributed in media. Perhaps it will be the basis for the future improvement of the Criminal Codes of Procedure.

Jeremy McBride, the Council of Europe's international adviser, Monaco Chambers Barristers, London, delivered a report on the Council of Europe standards and best practices on the right to defense and competition.

He devoted his report to the observance of the fundamental rights of the accused and defendant to ensure the fullness of the adversarial process and highlighted a number of factors that ECHR distinguishes in this context: the importance of access by a lawyer to an advocate at an early stage of the process, the presence of a defense counsel on interrogation and the quality of the counsel. In addition, the consultant drew attention to such important issues as the sufficiency of time to prepare for the case, access to the materials of the case defendant and his client, the admissibility of evidence, the security of communication client-lawyer and the preservation of lawyer's secrets.

Oleksandr Banchuk, expert of the Center for Political and Legal Reforms, and Viktoriya Kitsyuk, judge of the Solomyansky District Court of Kyiv, spoke about the latest changes to the Criminal Codes of Procedure.

Oleksandr Banchuk analyzed the novels of the appointment of an expert examination, conducting searches, appeals against the suspicion, the timing of the pre-trial investigation, and the rules of treatment of the prosecution party.

Particular attention deserves changes to the Criminal Codes pf Procedure under the Law of the "stop mask show". The law, in particular, introduces a new entity - a person whose rights and legitimate interests are limited during the pre-trial investigation (defines its status and rights); improves the rules for conducting a search and provides for the removal of electronic media by copying (with some exceptions); introduces the fixation of the consideration of petitions to the investigating judge and sets the term for the applicant to be extracted within 24 hours.

However, judge Kitsyuk expressed some doubts as to the effectiveness of these changes, referring to technical issues and material provision, and raised a number of topical practical issues, in particular, which rules should consider old cases or as a lawyer to prove non-admission to investigative actions, etc.

Dmytro Kuhnyuk, a lawyer, associate professor of the notary and executive process and advocacy department of the Taras Shevchenko National University, Managing Partner of Melnyk, Kuhnyuk & Partners, and Denis Bugay, discussed the strengthening of the competition and the "alignment" of the powers of the prosecution and defense party.

The participants drew attention to the inconsistency of the new CPC norms and expressed their need for correction. Dmitry Kuhniuk briefed the participants on proposals for changes to the CPC aimed at improving the standards adopted and enhancing competition. The draft proposes to define the term "defender"; to expand the content of the right to defense and the range of its subjects and to increase the consequences of its violation; to secure the right of the suspect and accused to be protected by any unauthorized means and involve an unlimited number of defenders; determine the time when the status of defender is acquired; Define the main rights of the defender in one article; to consolidate the principle of having a defender of the same amount of rights as the prosecution side; extend the procedural rights of the lawyer; to consolidate the procedural independence of the defender; to strengthen the guarantees of advocacy; to regulate the procedural status of a lawyer's assistant and a witness's lawyer.

Denis Bugai added that there is a real need to determine the procedural status of the lawyer's assistant and give him a wider range of rights, since lawyers have the need for qualified assistance during investigatory actions. In addition, it will better prepare a prospective lawyer for the exam.

The next topic, presented by Denis Bugay and Viktoriya Kitsyuk, was to strengthen the institute of the investigating judge during the pre-trial investigation.

In order to strengthen the role of the investigating judge in the pre-trial investigation, it is necessary to allow the judge to recognize the acts or omissions of the investigator and the prosecutor illegal, to detain the investigator on the basis of a separate decree; consider complaints of refusal to provide materials for familiarization; to consider complaints of inaction in carrying out investigative actions; to consider complaints about the decision of the investigator regarding the removal of documents and advocate's speeches - suggested Denis Bugay.

Judge Kitsyuk gave his comments on the above-mentioned proposals and noted: "To strengthen the role of investigating judge is definitely necessary, but how can we say about the effectiveness of an investigating judge when the number of judges is extremely low?"

Denis Bugay, Zlata Symonenko, Partner of Solzhenko & Partners, Evgeni Grushovets, lawyer, partner of Ario Law Firm, and Oksana Dyetinko, partner of Fomin & Partners, outlined some areas of improvement of the CPC. Leading lawyers focused on issues such as: enhancement of the protection of inviolability of the lawyer's secret, the involvement of the lawyer for urgent procedural actions, notification of the NDSD, the effectiveness of the protection of the rights of the victim, and extra-judicial criminal proceedings.

In order to enhance the protection of the inviolability of lawyer's secret, Denys Bugay proposed to take the following measures: to provide an absolute prohibition on obtaining information on the communication of a lawyer, a lawyer's assistant with a client; prohibit the access and extraction of documents containing a secret from the lawyer (however, warned lawyers against abuse). In addition, he expressed his opinion to improve the procedure for the search of a lawyer and conduct it only on the basis of a decision of the Court of Appeal.

Zlata Symonenko spoke about cases of abuse by investigators in the case of urgent investigative actions and expressed the idea of ​​clearly identifying a list of urgent investigative actions, providing for the procedure and consequences of the involvement of another lawyer in the absence of a valid lawyer for urgent procedural action.

Eugene Grushovets shared his own experience in obtaining a decision by an investigating judge on a search in the other party in response to a victim's lawyer's request. Oksana Dyetinko devoted her report to the reasons, procedure and shortcomings of the correspondence proceedings. As the participants noted, the norm was written for specific cases, it does not work effectively, so it needs to be corrected or canceled.

In conclusion, the experts summarized the results of the discussion and announced the event on this topic in Kharkiv on December 13, 2017. Join the UIA, with us is interesting and useful!

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