Alexander Shadrin, an LHS partner at BARRISTERS, LLC, urged the participants to be active during the preparatory session

Alexander Shadrin, a partner at Barristers Law Firm, spoke to Legal High School students about the defense attorney’s active participation in the preliminary hearing and the steps a lawyer must take. According to him, the preliminary hearing is not a mere formality; it is precisely during the preliminary hearing that measures can be taken to have the indictment returned. The lecturer urged participants not to limit their actions to the provisions of Chapter 27 of the Criminal Procedure Code of Ukraine, but to also utilize Article 303 of the Code of Criminal Procedure of Ukraine, pursuant to Part 2 of which complaints regarding decisions, actions, or inaction by an investigator or prosecutor—which are not considered during the pretrial investigation—may be addressed specifically during the preparatory proceedings in court.

He cited examples from his own practice where, during preparatory court proceedings, it was possible to resolve issues regarding the recognition of a detention as unlawful and to file a motion under Article 206 of the Code of Criminal Procedure of Ukraine regarding the need to provide medical care. According to the lecturer, a finding that detention was unlawful sometimes makes it possible to avoid being taken into custody and, subsequently, even to seek compensation for damages suffered.

Sometimes, during a pretrial investigation, the rule of jurisdictional competence is violated, and the lecturer cited examples from his legal practice in which, on this basis and pursuant to Part 2 of Article 303 of the Criminal Procedure Code of Ukraine, a prosecutor’s ruling on the determination of investigative jurisdiction was overturned, allowing the issue to be raised regarding the inadmissibility of the results of investigative and procedural actions obtained by unauthorized entities.

As the lecturer noted, prosecutors and investigators quite often retroactively include materials in the case file, and it is precisely during the preliminary hearing that all dates can be verified; to do so, it is necessary to request complete information from the Unified Register of Pre-trial Investigations (URPI), rather than relying solely on the excerpt provided to the judge.

Speaking about changing the preventive measure, Oleksandr Shadrin noted that during the preliminary hearing, the judge does not have sufficient evidence to impose a preventive measure, so the defense attorney must ensure that such evidence is available. Previously, there was a practice (which still exists in some cases) whereby, in the absence of a motion by the prosecution to change the preventive measure, it remained unchanged automatically. According to the lecturer, the European Court of Human Rights (ECHR) and the Constitutional Court of Ukraine (CCU) do not agree with this practice.

According to the lecturer, Article 315 of the Code of Criminal Procedure of Ukraine (Part 3) does not provide for the extension of a preventive measure during a preparatory hearing at all: “Upon a motion by the parties to the proceedings, the court has the right to impose, modify, or revoke measures to ensure criminal proceedings, including the pretrial measure imposed on the defendant.”

Oleksandr Shadrin reminded Legal High School attendees of a defense attorney’s right to raise objections regarding the proper conduct of procedural actions—a right he advises them to exercise—and, if necessary, to file a motion alleging a violation or to make proposals regarding the order in which procedural actions are conducted.

Is the return of the indictment and the remand of the case for further investigation (under the 1960 Code of Criminal Procedure) a victory for the defense attorney? In the lecturer’s opinion, not always, since such a document may contain deficiencies that could have led to an acquittal. On the other hand, if the client is confident of their innocence, such a return, filed in a timely manner, can accelerate the achievement of the desired outcome, since sometimes the need for such a return is established as early as the stage of appealing the verdict.

The lecturer illustrated his points with examples of decisions by Ukrainian courts and the European Court of Human Rights (ECHR).