The deficiencies of the indictment should be reported at the preparatory court hearing

Lawyers participate in the vast majority of preparatory court hearings in criminal cases. And the passive behavior of the defense can lead to irreversible consequences of violating the client's rights. How to prevent problems?

The UNBA Committee on Human Rights Protection continued to study the peculiarities of the preparatory court hearing.

The first discussion was devoted to the issues of appealing decisions, actions or inaction of pre-trial investigation bodies and the prosecutor during the pre-trial investigation, objections to the decisions of investigating judges, and the reclamation of things and documents.

This time, the second roundtable discussion focused on evidence and its sources, motions to close proceedings, applications for involvement of third parties, as well as issues of drafting a pre-trial report and lifting the seizure of property.

Ihor Svetlichniy, Secretary of the Committee and Head of the Restorative Justice Section, noted that the sources of evidence in the case of a criminal offense (not a crime), in addition to those specified in Article 84 of the CPC, also include explanations of persons, the results of a medical examination, a specialist's opinion, and readings of technical means that have the function of photo and video recording.

«In the future, we will see how this allegedly «inadmissible evidence» can be legalized in the event of a change in the legal qualification of the offense to a more serious qualification and the transition from a criminal misdemeanor investigation to a crime investigation. Such procedural sources of evidence cannot be used in criminal proceedings regarding a crime, except on the basis of a ruling of the investigating judge, which is issued at the request of the prosecutor, - the lawyer noted. - According to the requirements of Art. 309 of the CPC, these rulings of the investigating judge are not subject to appeal and objections to them can only be filed during the preparatory proceedings. If the investigating judge grants such a request of the prosecutor in the criminal proceedings, the court will have new sources of evidence. Unfortunately, the current CPC does not explicitly provide for the possibility of filing a corresponding motion for a lawyer».

I. Svetlichniy pointed out that some lawyers consider preparatory proceedings to be the last opportunity to exercise the right to collect or demand evidence. However, in view of clause 4 of part 2 of Article 315 of the CPC, this can actually be done at any stage. But what the lawyer really needs to pay attention to is the analysis of the indictment and the register of pre-trial investigation materials, as well as other documents attached as annexes.

«Does a lawyer have the right to point out their shortcomings to the court? I think so, because according to Article 47(1) of the CPC, the defense counsel is obliged to use all the remedies provided for by the procedural code and other laws. And one of such remedies is the possibility to question whether the documents were drawn up in the manner and in the manner prescribed by law, - I. Svetlichniy emphasized. - When drawing up an indictment, an investigator or prosecutor often violates the presumption of innocence by calling a person a criminal offender instead of a suspect. At the same time, the relevant authorized persons forget or ignore that the court subsequently evaluates the evidence and no evidence has a predetermined force. In this case, the lawyer can use such a mechanism to protect the client's rights».

The identified shortcomings can and should be used in favor of the client, starting with the preparatory hearing, said Hanna Kolesnyk, the Committee's chairman. For example, by filing a motion to return the indictment.

«When you see shortcomings at a preparatory court hearing, but only refer to them on appeal, the court will ask you why you didn't mention them earlier, - the lawyer explained. - The European Court of Human Rights will ask a similar question if the case goes to Strasbourg. This creates a situation that can be used against you».

However, the deficiencies of the indictment are sometimes attempted to be eliminated during the trial by clarifying the charges. Serhiy Starenkiy, Deputy chairman of the Committee, Head of the Section for the Protection of Prisoners' Rights, drew attention to this.

He is critical of this practice. «I believe that this is not legal, because during the trial we have an indictment already drawn up and its change violates the principle of competition, - he said. - In any case, it will not be superfluous to record the shortcomings of the indictment, which the prosecutor may eliminate during the trial. And then we will react. But in this case, the possibility of an appeal regarding the proper response of the defense is removed». According to the lawyer, initially, the return of the indictment was an effective mechanism, but now the prosecution has found mechanisms to counteract it. And the Supreme Court provided the tools for this.

Roman Gaidai, Head of the Committee's Section for the Protection of the Right to Legal Aid, discussed the problems of sending an indictment to court.

«The CPC does not link the opening of materials, familiarization of the defense with the indictment and sending it to court. Sometimes the prosecution interprets Article 219 of the CPC so broadly that until the defense has familiarized itself with the materials, the prosecution cannot send an indictment. I consider this interpretation to be groundless», - the lawyer said.

But S. Starenkyi considers this issue controversial, since an indictment can be sent only during the pre-trial investigation. There is no direct requirement, however, if we analyze the norms of the CPC, it is obvious that the indictment is the completion of the pre-trial investigation stage and it can be drawn up and sent to court only during the pre-trial investigation.

R. Gaidai also emphasized that the lawyer must use the register of pre-trial investigation materials. «If a certain document is not in that register, in particular, a resolution, ruling, etc., it means that it is not in the whole register. That is, all those documents that the prosecutor may bring in the future should not matter to the court. The registry is an important and unified resource, according to the CPC, which should contain all procedural decisions», - he added.

Raising the issue of the pre-trial report, S. Starenkyi revealed the main purpose of this action and its consequences. «The probation authority makes its own assessment as to whether a person should be imprisoned or whether a non-custodial sentence can be imposed. The result of the pre-trial report is the conclusion of the probation authority that the person in question can reform without isolation from society or not. What is the benefit for the defense in drawing up a pre-trial report? You can influence the preparation of this pre-trial report by providing a characterization of your client to the probation authority, not to the investigator and prosecutor. The court, having received the pre-trial report of the probation authority, perceives it as an assessment of an independent entity. But in fact, their assessment is to some extent based on the client's characterization you provide», - the lawyer explained.