KYIV - November 16, 2020. The work of anti-corruption bodies, (non)compliance with the principle of adversarial proceedings, problematic aspects of judicial control, international cooperation in criminal proceedings and such crime - just some of the issues discussed at the annual VII Conference on Criminal Law and Procedure. The event was attended by representatives of WACS, SAP, district courts of Kyiv, the National Police and the best specialists of the legal sector. NABU Director Artem Sytnyk was a special guest of the conference. Here are the key results of the discussions.
The conference recording is available for ordering. To purchase it, contact the UBA events coordinator Victoria Dotsenko at: firstname.lastname@example.org.
The event traditionally opened the President of the UBA Denys Bugay, reminding that the idea of the event is to bring together experts to discuss key issues in the industry and jointly find solutions:
“Debatable issues of criminal law and procedure are crucial in today's reality. Perhaps, the results of our discussions will contribute to fundamental changes in the future.”
“HACC is the best court in the world for lawyers!"
The first of these issues was the work of the High Anti-Corruption Court - it was discussed under the moderation of Olga Prosyanyuk, managing partner of AVERLEX. All parties to the process - lawyers, prosecutors and judges – exchanged views on the matter:
“It is at all times interesting how judges see lawyers: what, in their opinion, we are doing right, what mistakes we should correct,” said Olga Prosyanyuk.
Evhen Kruk, Deputy Chair of the HACC, helped to see the lawyers' mistakes through the eyes of a judge. Among the most common, he called the constant absences from court hearings, which are interpreted as delaying the process and abuse of rights. For greater understanding, the speaker gave an algorithm for recognizing the seriousness of such non-appearance by HACC:
1. Early warning of a lawyer about his/her absence - at least one day before the hearing.
2. Providing grounds for such absence.
3. Evidence of absence must be objective - such that a priori make it impossible to appear in court.
Competitiveness VS presumption of guilt
The discussion continued the investigating judge of the High Anti-Corruption Court Vira Mykhaylenko, who spoke about the implementation of the principles of adversarial proceedings in the practice of HACC. The speaker noted that lately judges have often been accused of bias. Therefore, she decided to dispel the myth by highlighting the randomly selected decisions of colleagues in the Single Register, where on the basis of adversarial principles, they did not agree with the position of prosecutors. The judge also reminded that the court in any case can not give preference to one of the parties, and all responsibility for the evidence is borne by the parties themselves. In addition, the judge must provide the parties with equal conditions for the exercise of their rights in the process.
Andriy Nikiforov, a judge of the Appellate Chamber of the High Anti-Corruption Court, also supported his colleague's thesis, emphasizing: “HACC is the most friendly place for lawyers in the whole world!"
Prosecutor of the Prosecutor's Office Vitaliy Kravets noted that the burden of the court hearing was actually felt by the representatives of the prosecution. He also spoke about the significant change in the approaches of NABU and SAP after the launch of HACC, bringing them to a qualitatively new level. However, he noted that there is still no unity of practice.
Indeed, the most friendly for lawyers?
Regarding the quality of work of anti-corruption bodies, Yevhen Hrushovets, Partner of Ario Law Firm, noted: its level directly depends on the quality of work of its members. And now both are at a fairly high level - this applies to the quality of the courts and the speed of the case: “Actually, we can say that the quality of cases in the HACC is much higher than other courts, but still there is a problem with adversarial principle."
Oleksandr Plotnikov, Partner at Arzinger, supported his colleague's thesis, noting the inequality of crediting training shortcomings - they are simplified for prosecutors. However, the lawyer also stressed the existence of a progressive approach of the HACC regarding the parties' access to resources: “In particular, lawyers are currently endowed with much greater powers to gather evidence. The court is really meeting the defense."
Activity of investigating judges
The second session was opened by its moderator, member of the UBA Board, Partner of LCF Law Group Maksym Sheverdin, explaining the relevance of the chosen topic: “Currently, the activities of investigating judges are under close public scrutiny. This is due to numerous high-profile criminal cases, the activities of NABU and HACC, etc. Therefore, today we will discuss the topic directly with the representatives of these bodies."
Thus, Kateryna Shyroka, judge of HACC spoke about the problematic issues of stopping the pre-trial investigation and international search, and Volodymyr Hrebenyuk, judge of the Podilsky District Court of Kyiv, analyzed the problems of judicial control and the peculiarities of searching and seizing temporarily seized property.
Svitlana Shaputko, Investigating Judge of the Pechersk District Court of Kyiv, continued the report of her colleagues. She considered the peculiarities of the application of a measure of restraint in the form of detention in the absence of a suspect and the aspects of appealing a notice of suspicion. Thus, the speaker spoke about the lack of a unified position of investigating judges and appellate instances on the definition of the concept of international search and the procedure for its announcement:
“Some judges adhere to the position of the HAAC regarding the mandatory presence of the investigator's decision on the announcement, which should be sent to the Department of International Police Cooperation of the National Police. Others believe that such a search is confirmed solely by Interpol." In addition, there is inconsistency of positions regarding the appeal of the notice of suspicion:
“It would be good to have a common practice to guide both sides and not look a little strange, each with his own position,” - said Ms. Shaputko.
The next topic - the powers of the investigating judge to complete the pre-trial investigation covered Denys Shkarovsky, Counsel at VB PARTNERS. He stressed that the issue is quite complex from the point of view of law enforcement, as the investigating judge actually assumes the authority to stop the criminal prosecution. Both positive and negative practices are already available on this issue:
“Just last week, there was a case when a judge said, 'If I satisfy your complaint now, tomorrow I will go to prison. Why should I do this?” The speaker noted that there are typical situations when the investigating judge is obliged to make a willful decision to stop such prosecution. Among them:
1. Expiration of the term of pre-trial investigation established by the CPC.
2. Expiration of “reasonable” terms of pre-trial investigation.
Regarding the first case, Mr. Shkarovsky emphasized: proving is done by simple arithmetic rules. The second situation is more complicated and requires careful clarification from the parties.
However, regardless of their own obligations, the courts often force the suspect to go through the “hell of the criminal process”, and only after that, already during the preparatory hearing, raise the issue of closing the proceedings:
“In my opinion, this does not correspond to the institution of an investigating judge and its main goal which is to respect human rights and freedoms,” Mr. Shkarovsky stressed.
For some generalization, the lawyer cited practical solutions for the pre-trial investigation, including an example of a ruling by the High Anti-Corruption Court. According to it, if the state, represented by the prosecution, is unable to draw up an indictment within the time limits established by the Code, the person must be released from this suspicion. According to the speaker, this position is correct: “I try to defend it, but unfortunately, it is not always possible," - said Denys Shkarovsky.
Zinaida Chuprina, Head of Criminal Practice at RIYAKO & PARTNERS, concluded the session with a report comparing expectations and realities regarding the work of an investigating judge through the eyes of a lawyer. According to her, there is currently a significant amount of negative practice of lawyers' appeals to cancel the notice of suspicion due to the expiration of a “reasonable time” for consideration. Therefore, it can be argued that the mechanism established by the CPC is ineffective.
Key session. Interview with a "secret" speaker
The most anticipated respondent of the conference was the director of the National Anti-Corruption Bureau of Ukraine Artem Sytnyk, who was interviewed by the President of the UBA Denis Bugay. The speakers comprehensively discussed the activities of NABU and the nuances of detective training, ethics and media policy of the Bureau and, of course, the resonant decision of the Constitutional Court of Ukraine to declare unconstitutional articles for illegal enrichment and electronic declaration.
International Criminal Law & ECtHR Practice in Protecting Clients' Rights
The next block, devoted to the discussion of international cooperation in criminal proceedings, was moderated by Serhiy Grebenyuk, Partner at Asters, who called the topic the most promising and trendy in the criminal process given the current need to apply international law.
Igor Fedorenko, Partner at AVERLEX, spoke about the experience in extradition cases and case law on the moment of recognition of a person as internationally wanted. According to him, the current practice is significantly different, because the courts interpret the amount of necessary evidence of a person on the international wanted list differently. The number of such documents varies from one resolution to a set of them, which includes information from the National Central Bureau of Interpol in Ukraine.
Markiyan Bem, Senior Associate at Vasyl Kisil & Partners Law Firm, continued his speech by highlighting the ECtHR's practice in dealing with foreign elements. In view of the cases under consideration, the speaker advised his colleagues to use Rule 39 of the ECtHR Rules of Procedure in situations where the client's life is threatened or persecuted. It makes it possible to prohibit the deportation or extradition of a person to protect his rights.
Considering the peculiarities of working with Interpol, the speakers noted a significant number of politicized cases and harassment of individuals through their views. In view of this, they advised to take an active position, to initiate correspondence with Interpol:
“You probably won't get any answers, but the information you provided about the facts of political persecution and the substantiation of their illegality are essential for the further course of the case. In almost 80% of cases, Interpol, in the presence of such information from the defense, refuses to declare a person wanted internationally. And there are even cases of termination of such search".
All the nuances of cybercrime
The moderator of the final session, Sayenko Kharenko's partner Serhiy Smirnov, noted that the issue of cybercrime has become more relevant over the past two years. At the same time, according to the speaker, the Cyberpolice and the Security Service of Ukraine are active and sometimes effective. Given the stability of the growing number of such crimes and the corresponding increase in the volume of issues, the moderator suggested that colleagues connect all the dots.
Thus, Orest Stasiuk spoke about global and local trends and the latest key cases of crimes, and Stanislav Samoilov, Deputy Head of the Department - Head of the First Department of Information Technology and Programming of the Cyberpolice Department of the National Police of Ukraine, provided an algorithm for quality protection against cyberterrorism.