|19:18 Sat 23.04.22|
Valentyn Gvozdiy took part in the conference of the European Criminal Bar Association.
UNBA/BCU Vice-President Valentin Gvozdiy spoke at conference held in Riga, held by the European Criminal Bar Association with the support of the Latvian Council of Sworn Advocates.
The conference consisted of three panels on the confiscation and seizure of assets in criminal proceedings, activities of the European Public Prosecutor's Office and the advocate-client relationship. Keynote speakers included the President of the Supreme Court of Latvia Aigars Strupiss, the President of the Constitutional Court of Latvia Aldis Lavins, the Ombudsman of Latvia Juris Jansons, and the President of the Latvian Council of Sworn Advocates Janis Rosenbergs, James McGill, President of the Council of Bars and Law Societies of Europe (CCBE), opened a panel discussion on legal privilege.
The conference began with a presentation by Valentyn Gvozdiy on the rule of law in Ukraine during martial law and an overview of the criminal procedure novelties.
The UNBA/BCU Vice-President described the situation in the justice system in Ukraine and the amendments to the Criminal Procedure Code, adopted during martial law, and their influence on the state of advocate’s professional rights, citizens' rights to professional legal assistance.
"By making changes, the legislator tried to ensure a full and speedy pre-trial investigation under martial law. It is justified in the current situation. At the same time, it was important to respect the rights and interests of the participants in the proceedings. However, in our opinion, endowing the prosecution with the powers of investigating judge may lead to violation of the balance of interests. We hope that the prosecution will objectively and impartially perform its temporary duties under martial law. After all, these changes, according to the defense, are already narrowing the rights of clients, " Valentyn Gvozdiy warned.
Speaking about the role of the defense counsel in criminal proceedings under the new legislation, UNBA/BCU Vice-President noted that currently the investigator, investigating judge, prosecutor ensure the participation of defense counsel during separate procedural action, including in case of failure to appear - using technical means (video, audio communication) to ensure the remote participation of the defender.
"Ukrainian National Bar Association opposed such innovations, as it considers the remote participation of an advocate at the stage of pre-trial investigation to be ineffective for proper defense. Objections raised on our part, where we proposed to leave the issue of remote participation up for advocate’s discretion, and not to let the prosecution decide. Unfortunately, our objections were not taken into account, " Valentyn Gvozdiy stressed.
In addition, UNBA sent objections to the parliament regarding the procedural possibility of detaining a person during martial law without the permission of an investigating judge for a period of 260 hours. The legislator did not explain the criteria for calculating the need to detain a suspect for nine days and ignored the provisions of Art. 29 of the Constitution of Ukraine, which does not allow to detain a person without a court decision for a period exceeding 72 hours, as Valentyn Gvozdiy explained.
He detailed the new enhanced powers given to the prosecution and the simplification of criminal procedures, as well as new penalties for collaboration and war crimes.
"Under martial law, the legislator allowed the trial of criminal cases by video conference, if the accused is outside the courtroom. From now on, the issue of conducting a trial in this mode is accepted by the court without taking into account the opinion and wishes of the accused. It will be recalled that in peacetime, remote trial in criminal cases was impossible if the accused objected.
He noted that advocates perceived such innovations as extremely controversial. In our opinion, the introduced changes cannot fully ensure the observance of the accused's right to defense, as well as the forgo principles of adversarial proceedings, immediate examination of testimony, evidence and documents, freedom to present their evidence and argue their case before the court of law. It is an unjustified violation of the right of to a fair trial", Valentyn Gvozdiy added during the presentation.
He said that the administration of justice is currently complicated due to objective circumstances. According to the data published by the judiciary, in connection with active hostilities, courts cannot administer justice in 10 regions of Ukraine. In addition, 11 court premises were destroyed or damaged. In this regard, the legislator has given permission to change the territorial authority of cases in such courts. In particular, the Chair of the Supreme Court is now vested with the power to change the territorial jurisdiction of courts. To date, more than 130 courts in Ukraine have changed their territorial jurisdiction. Other courts continue to administer justice normally.
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