Права Людини в Україні. Інформаційний портал Харківської правозахисної групи
версія для друку
09.12.2000 | V. Nesterenko, Kharkov
The right to a fair trial

The rights of persons participating in a criminal case should be essentially enlarged


According to Article 44 of the Criminal-Procedural Code of Ukraine, an advocate is admitted to the participation in the case since the moment when the accusation is given to the suspect; when the suspect is detained, the advocate is admitted since the moment of compiling the protocol on the detainment.

This law is rather progressive compared to the previous one, when the advocate was admitted only after the completion of the investigation, when the suspected started to get acquainted with the materials of the case. Nonetheless, the law may not be left in its present form. The rights of the people, who participate in a criminal case, must be essentially enlarged.

Everyone may recollect foreign films where after the detainment by the police the suspect proudly declares something like: ‘Without the advocate I will not give you the time of the day’. On 27 June the TV program ‘Today’ made known that the Constitutional Court of Russia decided to admit advocates to the participation in a criminal case since the moment when a citizen is invited by militia or prosecutor’s office to give some testimony.

A person is at the moment neither a suspect nor an accused, but still it has the right, as in other countries, to demand the participation of his advocate in the matter. It is high time to introduce the proper changes to Article 44 of the CPC of Ukraine, otherwise rights of our citizens will be violated all the time.

A bright example of the considered situation is the criminal case on a road accident, according to Article 215 part 1 or part 2 of the CC of Ukraine.

This category of cases has many delicate spots as to the investigation. That is why an investigator very often repeatedly interrogates the guilty (or the alleged guilty) as a witness.

The suspected cannot get acquainted with the investigating officer’s conclusions in the proper time, and the investigator may arbitrarily put questions before experts with the incorrect basic data. The witness, being at the same time a future culprit, may put his own questions with other basic data or prove, for example, that the speed was quite different, or that the obstacle appeared earlier or later at the collision. The future accused may demand to summon the needed eye-witnesses, to demand to make the sketch of the road, if it is needed.

I believe that following Russia’s example the legislative power of Ukraine ought to take all necessary measures to essentially increase the rights of those citizens who are summoned as witnesses.

I am sure that such measures will drastically reduce the number of complaints against torture and other cruel measures applied by militia.

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