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5. RIGHT TO FAIR TRIAL. CRIMINAL PROCESS

   


[1]

This year was characterized by passing of the new Criminal Procedure Code in April, anticipating its coming into force and transfer to new judicial process by late November.

The new Code was welcomed by many international institutions, the Council of Europe and the UN Council on Human Rights among them. All the international organizations stressed the need for its adequate implementation.

Despite ample (and often relevant) criticism of the Code, it represents serious progress in reforming criminal justice system.

Besides, the introduction of free legal services in compliance with respective law was being prepared intensely. The same year another law “On the Bar and Attorneys’ Operation” was passed.

Violation of right to remain silent and right to legal assistance

The practices of using initial explanations or testimony of the accused, obtained in violation of the right to remain silent and right to legal assistance, to secure a conviction remain a systemic problem, despite the numerous judgments of the European Court. In 2012 the European Court found several violations of Article 6 of the Convention in the national courts’ decisions. In the case Grinenko v. Ukraine (№33627/06, 15 November 2012) the applicant suspected of committing an ordered murder, in his deposition as a witness, with no defence attorney present, made a statement which later was use for his conviction. Besides, in the course of further investigation, the applicant was interrogated only with assigned lawyer present, although the applicant had his own lawyer. It was a violation of Article 6 §§ 1 and 3(c) of the Convention. The same violation was established in the cases Grigoriev v. Ukraine (№ 51671/07, 15 May 2012), Titarenko v. Ukraine (№ 31720/02, 20 September 2012), Khayrov v. Ukraine (№ 19157/06, 15 November 2012), Zamferesko v. Ukraine (№ 30075/06, 15 November 2012), Yerokhina v. Ukraine (№ 12167/04, 15 November 2012), Serhiy Afanasyev v. Ukraine (№ 48057/06, 15 November 2012).

It is noteworthy that in Grigoriev case the administrative detention in criminal process was used once again to deprive the accused of his right to legal assistance. It is a systemic problem revealed in earlier reports.

In Zamferesko case the European Court also held that the applicant’s testimony obtained by torture was used to convict him. The court stated that “the admission of statements, obtained as a result of torture or other ill-treatment … as evidence to establish the relevant facts in criminal proceedings renders the proceedings, as a whole, unfair. This finding applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction” (§ 70). A similar conclusion was passed by the European Court in the case Grigoriev v. Ukraine (№ 51671/07, 15 May 2012).

In the case Todorov v. Ukraine (№ 16717/05, 12 January 2012) the Court established the violation of the applicant’s right to fair trial, although the judges in their rulings did not refer to his testimony obtained without defence attorney. The Court commented that “impossible to exclude that the existence of the self-incriminating statements in itself influenced the way the investigation was conducted and the manner in which other evidence was taken and interpreted. This is particularly so since … the domestic judicial authorities never expressly reacted to the applicant’s complaints of a breach of his right to legal assistance” (§ 79). Therefore, the European Court applied a version of “fruit of the poisonous tree” doctrine in its practice.

 It is noteworthy that the European Court’s judgments led to some changes in the judicial practices, i.e. certain convictions were quashed by the Supreme Court of Ukraine or High Specialized Court on civil and criminal cases.

In 2012 the convictions in Nechiporuk, Balitskiy, Iglin and Maksimenko cases were quashed pursuant to the European Court’s judgment on violation of the right to fair trial (see 2011 report). In case of Nechiporuk and Balitskiy the criminal proceedings cases were remanded for further consideration by the trial court, so the trial goes on. Iglin and Maksimenko cases were submitted to the court of cassation.

Meanwhile the enforcement of other international bodies’ decisions, in particular, the UN Committee on Human Rights, is not yet regulated by the law. In the last year report we pointed out that the Committee’s conclusions on Shchitka and Butovenko cases were not taken into consideration.

The new Criminal Procedure Code was amended with number of rather radical clauses, addressing this problem. Pursuant to Article 95 § 4 “the court can base its conclusions only on the testimony heard directly at the trial or obtained in due order stipulated by Article 225 of this Code. The court has no right to base its decisions on the testimony, given to an investigator, prosecutor or to refer to them”. This clause is the clear implementation of the principle of “immediacy” (Article 23 of the Code). The court cannot base any conclusions on out-of-court testimony. Article 23 § 1 of the Code envisages that “the testimony of the parties to criminal inquest is received by the court orally”, while part 3 of the same article enforces cross-examination right for the defence. Besides, pursuant to Article 87 § 2(5), the violation of right to cross-examination is always considered a serious infringement, which makes evidence unacceptable. The only exception to this rule is obtaining evidence in special order, envisaged by Article 225 for exceptional cases.

Besides, in Article 87 § 1 the Code very strictly imposes the “fruit of poisoned tree” doctrine, stipulating that not only the evidence obtained through violations, but also the evidence, which would not have been obtained, if the former evidence had not been in place, are to be considered unacceptable. Therefore, the otherwise acceptable evidence, obtained with the help of information coming from unacceptable evidence, becomes unacceptable.

This model of proceedings will force the investigation bodies to proceed cautiously, as any doubts with respect to voluntary nature of obtained evidence can be fatal for all the probative materials, collected in the course of the inquest. However, these provisions will be efficient in practical operation only if the courts will interpret them conscientiously.

Violation of right to witness’s examination in court

The use of written testimony obtained from witnesses during pretrial investigation, is also very common. The European Court passing judgment in some cases of recent years classified it as violation of right to fair trial (see Lutsenko v. Ukraine, № 30663/04, 18 December 2008; Kornev and Karpenko v. Ukraine, № 17444/04, 21 October 2010).

In the case Khayrov v. Ukraine (№ 19157/06, 15 November 2012), the European Court established the violation of the right to the witness’s examination in court, as the national courts in their decisions referred to pretrial testimony of one of the most important witnesses. The court refuted the argument that the witness’s absence in court was recompensed by the sufficient opportunity for the applicant to question him during confrontation, pointing out that “that confrontation was carried out at an earlier stage of the proceedings when the applicant was not assisted by defence counsel. The confrontation was only recorded on paper, which would not have allowed the judges to assess the demeanour of the parties to the confrontation and properly form their own opinion as to the reliability of the statements made during that investigatory action” (§ 93).

In the case Grinenko v. Ukraine (№ 33627/06, 15 November 2012) the European Court, on the contrary, did not establish the violation of the right to the witness’s examination in court. The Court took into account the fact that by the time of investigation the witness had died, and her testimony would not have a direct or decisive bearing on the applicant’s conviction.

In 2012, Leonid Lazarenko was once again sentenced for life, after the first verdict was cancelled pursuant to the European Court’s decision. It is noteworthy that significant violations of right to fair trial were registered in the course of the trial. Under the law in force the case was to be considered by a district, and not an appellate court. It means that, in violation of Article 6 of the Convention, the case was not considered by the „court designated by law”. Besides, the co-defendant of Leonid Lazarenko, whose testimony constituted the grounds for the conviction, did not testify at the trial. Currently, Leonid Lazarenko is filing a complaint with the European Court on Human Rights concerning the new violation of his right to fair trial.

The problem described above can be resolved with the help of aforementioned provisions of the Criminal Procedure Code stipulating the unacceptability of out-of-court testimony.

Right to legal assistance in the higher courts

In the case Nikolayenko v. Ukraine (№ 39994/06, 15 November 2012) the European Court found the violation of Article 6 § 3(с) of the Convention, i.e. that the applicant sentenced for life by the court of appeals, was not represented by an attorney at the Supreme Court hearing. Pursuant to CPC the right to the assigned attorney’s assistance did not cover the court of appeal hearings. The European Court ruled that “given the seriousness of the charges against the applicant and the severity of the sentence … the assistance of a lawyer at this stage was essential for the applicant” (§ 66).

Keeping the accused in a cage during court hearing

In the case Titarenko v. Ukraine the European Court considered the fact of keeping the accused in a cage against the provisions of Article 6 of the Convention. In its ruling, the Court did not find the violations of right to fair trial, stating that “during the hearings both the applicant and his lawyer were heard by the court, furthermore, the applicant’s lawyer had not in any way been restricted from using whatever he needed in order to defend his client’s interests. . The security arrangements undeniably limited communication between the applicant and his lawyer during the hearing. These limitations did not, however, amount to a complete lack of communication between the applicant and his lawyer; the applicant did not demonstrate that it was impossible to request that the lawyer’s seat be brought closer to his “cage”, or that they had been denied an opportunity for private communication when necessary” (§ 92).

Important novelties introduced to the Criminal Procedure Code

The passing of Criminal Procedure Code of 2012 is an important step towards the reform of criminal justice in the country. The law-maker deviated from systemic approach under which the new CPC had to come in force alongside with the prosecutor’s office reform and reforms in the other law-enforcement bodies. Although this fact might complicate and slow down real changes in the criminal procedure, the significance of progressive changes introduced by the Code cannot be underestimated.

1. The court’s control over pretrial investigation was strengthened. Almost all the actions, which can be classified as significant interference with human rights and freedoms, shall be taken under prior court’s warrant. The Code introduced the notion of investigation judge, responsible for the court control at the pretrial stages. If the actions requiring court warrant are taken without such a warrant, the testimony obtained through them is excluded.

2. The use of out-of-court testimony is banned. This novelty enhances the role of court as the arbiter of facts, ensures equalized stand of the parties and contributes to their competitiveness, reviving the principle of direct perception of evidence. Besides, it allows the shortening of the pretrial investigation period due to cutting down of bureaucratic steps, and also provides incentives for the parties to submit the case to the court as soon as possible.

3. The doctrine of competitive expertise is promoted. Under the new Code each party can use the expert’s opinion, so that competitive expert conclusions can be submitted to the court. However, to make this development efficient the special budget funds should be allocated as experts’ royalties in the cases, where defence is provided pro bono.

4. The detailed definition of various pretrial investigation procedures is provided, namely, for the search, preventive measures etc.

5. The authority of criminal prosecution to grant permit for attorney’s participation in the case is banned. Only the defendant can make the decision on hiring an attorney (apart from pro bono cases).

6. The pro bono attorneys can be hired by the state only through the Centres of free legal assistance. It is an important preventive mechanism to avoid the hiring of “pocket attorneys”.

Setting up the system of free legal aid

This year the important steps towards the formation of free legal aid system were taken.

The Presidential Decree № 374/2012 of June 1, 2012 promoted the setting up of the Coordinative centre for legal aid and approved the national target program for the implementing of free legal aid system till the year 2018. Numerous Cabinet of Ministers’ Resolution have also been passed with respect to free legal aid system: “On Approving the Order and Terms for contracting attorneys who provide free secondary legal aid on the permanent basis and attorneys who provide free secondary legal aid on the temporary basis”; „Reimbursement for the services of attorneys who provide free secondary legal aid to the persons, detained in administrative or criminal procedural order and also in criminal cases”; “On Introducing Changes to the Order on use of state budget funds for providing free legal aid to the citizens in criminal cases”; On Approving the Order for informing centres of free secondary legal aid about detentions”. The respective orders of the Ministry of Justice of Ukraine have also been passed.

On July 2, 2012 the Order of the Ministry of Justice of Ukraine № 968/5 launched the setting up of the first 27 centres providing free secondary legal aid in the Autonomous Republic of Crimea, oblasts and cities of Kyiv and Sebastopol. As of October 2012 all the 27 centres o for free secondary legal aid were duly registered by the state bodies as legal entities of public law and entered into the catalogue of the budget funds managers in the State Treasury Service of Ukraine. The centres’ directors were appointed.

In Kharkiv, Khmelnitsky and Kyiv oblasts the centres for free secondary legal aid will be set up under the auspices of public defence offices in Kharkiv, Khmelnitsky and Bila Tserkva set up within the framework of International „Renaissance” foundation pilot projects.

In 2012 over 51 million UAH was allocated for implementing the free legal aid system. It is about 25 times more than over the former years. Nevertheless, even this funding is not enough. Under the Concept of the National Program for Setting Up Free Legal System for the years 2013-2017, the approximate amount of money needed for the program implementation in 2013 constitutes 139 million UAH.

Recommendations

1. Ensuring sufficient state budget funding for the programs aimed at setting up free legal aid system, including, among others, the costs of the expertise research.

2. Legitimizing the operation of private experts and expert offices.

3. Broadening the competences of the Supreme Court in the reviewing of cases in which significant violations of material and procedural law were revealed, envisaging, in particular, compulsory review for the cases which have the conclusion of an international agency, empowered by Ukraine to consider individual complaints.

 

[1] Prepared by A. Bushchenko, UHHRU

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