12.12.2001 | Valeriya Nesterenko, Kharkov

In a law-abiding society advocates play an important role… And what about Ukraine?


For more than a year in Russia the law is adopted, according to which witnesses have the right to demand the presence of their advocates during the interrogation. However, this law is infrequently applied in practice. For example, in one of his features ‘Itogi’ (‘Summing up’) E. Kiselev told that the status of witnesses still remains shaky: in some cases the investigation officers summoning him in the connection with the case of ‘Mediamost’ prohibited him to take his advocate, and in others cases expressed surprise, when he case without the advocate.

In Ukraine the situation is even sadder. On 13 January 2000 Article 691 was added to Criminal-Procedural Code. This article lists the additional right of a witness. Unfortunately, the right of the witness to bring his advocate is not mentioned in this list. This fact rudely violates the rights of citizens, who later may be brought to the criminal responsibility. Investigating officers deftly manipulate by this omission. For example, very often after a road accident the culprit is first interrogated as a witness. At the same time, in the absence of the culprit, the basic ODA, such as the technical expertise, are executed. In the process of the expertise the investigating officer asks the expert some questions about exceeding the speed limit, movement in his lane, etc. Very often the question are worded such that they prove the guilt of the alleged culprit. If the witness (a perspective culprit) and his advocate were present during the investigation, then they could ask question so that the expert would change his attitude. However, the witness has no rights at this stage of the investigation. Actually, when the ODA are practically over, the witness becomes the accused and only then learns what are the materials of the case. The requests for making additional expertise for elucidating other circumstances are, as a rule, rejected. The complaints to the district prosecutor’s office on the investigating officer’s actions are, as a rule, disregarded, and the materials are directed to the court. This is one of the main reasons of the great proportion of investigation errors, and further, at best, the court directs the case for an additional investigation. Very often the judge uses (directly or indirectly) in proving the guilt of the suspect the material of the expertise, although it was carried out in a biased way. Unfortunately, this practice is widely applicable not only in the cases about road accidents.

The Kharkov Group for human rights protection took an active part in defending citizen B., against whom a criminal case was started in 1997; he was accused of the theft of jewels. It appeared that there were no concrete arguments against him, and the case was closed in the end of 1997 by the Merefa district militia directorate. In summer 1998 B. was summoned this time to the Kharkov oblast militia directorate and again interrogated with respect to the former case. When the suspected asked the investigating officer Moroz to permit B.’s advocate to be present at the interrogation, the officer refused because B. was interrogated as a witness. By the way, the accused suffers from a slight degree of debility; he had been, in particular, released from the military service by this reason. On 9 February 1999 B. Again was summoned to an interrogation, again without his advocate. The criminal case was reopened, he was detained and for 10 days interrogated, this time as the accused. He was kept in the preliminary prison for 18 months.

The absence in the Criminal-Procedural Code of Ukraine of the right of a witness for legal aid at any stage of the investigation brutally abuses both the interests of a citizen and of a state. Plenty of criminal cases last for years, are sent to courts, then are directed for additional investigation because of the lack of proofs, after which they are often terminated. Nobody bears any responsibility for an inadequate investigation, which causes not only material and moral damage to the accused, but to the state as well. The victims of the procedure usually stay in captivity all this time…

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