How to guarantee a human right to defense in a court?

Numerous complaints about the new Code of Criminal Procedure are not always justified, as its construction is fundamentally different from the 1960 CCP, and the difference is not so much in the approaches, but rather in the principles which the law embodies.

Very often, courts perceive some legal provisions not in their system, but instead look in the laws for a literal explanation, and some judges do not take into account the principles of criminal procedural law at all, acting in accordance with the principles of the “good old” CCP. I encountered with this situation in the Kyivskyy District Court of Odessa, where a panel of judges did not want to understand the principle of equality of arms in the proceedings and on its own motion initiated the extension of the detention period for an accused, having defiantly stood on the side of the prosecution.

Thus, the new CCP is based on principles that take precedence over other rules of procedural law, they are in fact the spirit of the law; in the process of administration of justice courts must base themselves on them. Otherwise, if the content of the law is distorted, the criminal procedure turns into pathos and a defender sometimes has nothing to do in such a court, as the sense of doing anything is lost.

This exactly happened in the case concerning the prosecution of M. in the Kyivskyy District Court of Odessa under part 3 of Article 307 CCP.

Not only that M. is mentioned in the indictment as a suspect, the document itself is formulated by the prosecution in the terms that it is very difficult to understand what the pretrial investigation meant when it was choosing legal classification for M.’s actions. The document reads as follows: A. sold drugs to B., therefore M. stored and sold the drugs.

All my appeals to the court about the absence of such an element in bringing charges against M. under part 3 of Article 307 CCP as actions and causation link, caused only irritation of the panel of judges and the panel, having forgot even to mention in its ruling the extension of the period of detention, legal position of the defense, continues to automatically remand M. in detention.

Article 331 CCP establishes the procedure for choosing, revoking or changing a preventive measure in court.

During the trial the court at the request of the prosecution or defense has the right to change, revoke or choose a preventive measure against an accused.

The question about the preventive measures is solved in accordance with Chapter 18 CCP.

Irrespective of the presence of petitions, the court is obliged to examine the question of relevance of the continued detention of an accused before the expiry of a two-month period from the date of receipt by the court of indictment, of a request for imposition of compulsory measures of medical or educational nature or from the date of application by the court to an accused of a preventive measure in the form of detention. As a result of examination, the court by its reasoned ruling revokes or changes a preventive measure in the form of detention, or continues its application for a period not exceeding two months. A copy of the ruling is handed over to an accused and prosecutor, and sent to an authorized official in the place of detention.

Before the expiry of the extended period, a court is obliged to repeatedly examine the question of relevance of the continued detention of an accused, if the court proceedings were not completed before its expiry.

In the context of the mentioned principles of criminal procedure, Article 331 CCP is applied by the court without respect for the principles of equality and dispositivity.

Thus, said Article entitles the court only to examine a question of the relevance of continued detention of an accused (substantive provision), while the procedure for submission of petitions (procedural provision) by parties to the criminal proceedings, which is envisaged by Chapter 18 CCP, to which part 2 of Art 331 CCP corresponds, remains unchanged.

A court cannot freely interpret the content of a provision of procedural law and, furthermore, to give clear and demonstrative advantage to a prosecutor, forgetting about the equality of arms, when the judge of Kyivskyy District Court of Odessa asks whether the defense convinced the prosecution, as if the defense should convince the prosecution instead of the court.

In the context of the principle of dispositivity, in particular, part 3 of Article 26 CCP, where the court can only decide the questions submitted for its consideration by the parties and which fall within their competence under this Code, the court’s unreasoned position in respect of a continued detention, without a relevant initiative in the form of a written request by the prosecution party, with the provision of evidence which can be refuted by the defense party, is a sign of the court’s bias, gross violation of the right to defense, such a judge being subject to immediate withdrawal (para. 1.4 of Article 75 CCP).

At that, the court ruling about the extension of detention of an accused cannot be appealed against, so the question is as follows: should a client “wait” in the detention centre until the case reaches appeal, where one cannot be certain that the judges will similarly ignore the principles of procedural law, or the case will go to the HSCU, where the judges will possibly understand all issues. In the meantime, an "automatically" arrested person loses time and health, and his advocate’s futile efforts to provide defense within a legal framework often irritate the judges. How can one guarantee a human right to defense in court in such cases, what the leaders of the judiciary will say?

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Виджет автор публікації

Ganna Boriak

Advocate and member of the UNBA Human Rights Committee, co-chairman of the NGO 'Committee for Protection of Children’s Rights'