COMMENTARY ON DRAFT LAW OF UKRAINE No. 9055 BY IRYNA HLOVYUK, ATTORNEY, SCIENTIFIC ADVISOR AT BARRISTERS, J.D., ASSOCIATE PROFESSOR

Some Notes on Draft Law of Ukraine No. 9055

The Draft Law of Ukraine “On the Bar and the Practice of Law,” in addition to provisions aimed at regulating the organization and functioning of the bar and the practice of law in general, also contains a number of forward-looking amendments and additions to the Criminal Procedure Code of Ukraine, some of which have already been evaluated by representatives of the legal community (O. Drozdov, N. Kulchitsky, M. Stoyanov, and others).

At the same time, I would like to draw attention to some other aspects of this draft law regarding amendments and additions to the Criminal Procedure Code of Ukraine.

The first thing that stands out is a certain inconsistency in what is arguably one of the most important issues—the definition of parties entitled to defense in criminal proceedings and the application of this definition throughout the text of the entire draft law. Specifically, in Articles 3 and 20—both in defining the concept of a defense counsel and in defining the list of participants in criminal proceedings who are entitled to defense—the draft proposes to include in this list a person subject to measures to ensure the conduct of criminal proceedings. In cases where a person does not have a separate status under criminal procedure, this could generally be accepted (although, for example, it is unclear what kind of defense could be involved if a summons from an investigator, prosecutor, or court is issued), but in cases where a person has a criminal procedural status—for example, as a victim or a civil claimant— and a decision is being made regarding, for example, the imposition of a monetary penalty, or if they have the status of a civil defendant and a decision is being made regarding the seizure of their property, a logical question arises: does the person have the right to defense or to representation? And who will be their attorney? Furthermore, despite the wording of Article 20, for some reason, the proposed amendments to paragraph 1 of Article 303 of the Code of Criminal Procedure specify as the party entitled to appeal only the person against whom measures to ensure criminal proceedings are being applied, without mentioning the possibility of an appeal by the person providing her with professional legal assistance.

On the other hand, the fact that the activities of certain other participants in criminal proceedings objectively bear the hallmarks of a defense function has not been taken into account. This refers to the representative of a legal entity against which proceedings are being conducted, a third party whose property is subject to seizure, and that party’s representative. Accordingly, they are not classified as persons entitled to defense or in respect of whom defense is provided, although there is an objective need for this. Furthermore, despite the expansion of the circle of persons entitled to defense, the reference in the context of defining procedural rights is limited solely to the rights of the suspect and the accused.

In addition, the proposed amendments to Article 47 of the Code of Criminal Procedure of Ukraine already state that “A defense attorney has the right to participate in interrogations and other procedural actions conducted with the participation of the suspect or accused,” while no mention is made of other participants entitled to legal representation. Presumably, the defense counsel will not have the right to participate in procedural actions involving them. This is also characteristic of the wording regarding the defense counsel’s right to use any technical means not prohibited by law, including during meetings with the suspect or accused. In the context of unimpeded access to court premises during working hours and during court hearings in cases involving a suspect or defendant, as well as to the premises of courts, prosecutorial authorities, the police, internal affairs agencies, other law enforcement agencies, pretrial detention facilities, correctional facilities, and government agencies at any time—provided that a suspect, defendant, convicted person, or acquitted person is present in those premises—the scope of persons for whose defense these guarantees are intended is again limited.

It is proposed to amend Article 53 of the Code of Criminal Procedure of Ukraine by adding the following provision: “If the accused or suspect has retained a defense counsel, the investigator, prosecutor, investigating judge, or court may appoint another defense counsel to conduct a specific procedural action only if the defense counsel appointed by the accused or suspect, having been notified in advance, is unable to arrive to participate in the procedural action within twenty-four hours, or with the written consent of the accused or suspect.” Once again, the question arises as to why such guarantees are not provided, for example, for a convicted person, an acquitted person, a person subject to compulsory medical or educational measures, or a person for whom the application of such measures is being considered in criminal proceedings, a person regarding whom the issue of extradition to a foreign state is being considered, or a person subject to measures to ensure criminal proceedings—where, for the first two categories, consent would also have to be given by a legal representative.

Based on the proposed amendments to the Code of Criminal Procedure of Ukraine, the right to examine witnesses will be held by a defense counsel or an attorney acting as a representative of the victim or a legal entity against whom proceedings are being conducted (Articles 65, 93, 95, 106). This raises the question of why a similar right is not provided for the representative of a civil plaintiff or a civil defendant. At the same time, the right to use photography, audio, and/or video recording during questioning, as provided for in the proposed amendments to Article 224, is granted only to the prosecution and the defense; neither a lawyer acting as a representative of the victim, nor a lawyer acting as a representative of a legal entity subject to the proceedings. We note that this wording restricts the lawyer’s rights compared to paragraph 9 of Article 20 of the draft, which provides that a lawyer has the right to use technical means not prohibited by law without any permission from officials or the court, including for the purpose of recording procedural and other actions in which the lawyer participates, the course of the court hearing, and so on.

Despite the attempt to expand the circle of persons entitled to file motions, the wording of Article 220 raises the following question: “1. A motion by the defense, the victim, the victim’s representative or legal representative, the civil plaintiff, the civil plaintiff’s representative, the civil defendant, the civil defendant’s representative, or the representative of a legal entity against which proceedings are being conducted, a third party whose property is subject to a seizure order, another person whose rights or legitimate interests are restricted during the pretrial investigation, a person regarding whom the issue of extradition to a foreign state is being considered, applicants, witnesses, and their attorneys regarding the conduct of any procedural or investigative actions; the investigator and the prosecutor are required to review such requests within three days of their submission and grant them if there are sufficient grounds.” First, the legal representative of a suspect—or a person against whom the application of coercive measures of a medical or educational nature is envisaged, or for whom the issue of their application in criminal proceedings is being decided—is not specified; Second, a flaw in legal drafting that will lead to legal uncertainty is that it is unclear from the provisions of the article whether the right to file a motion applies to a representative of “another person whose rights or legitimate interests are restricted during the pretrial investigation, a person regarding whom the issue of extradition to a foreign state is being considered, the petitioner,” or for the “other person whose rights or legitimate interests are restricted during the pretrial investigation, a person whose extradition to a foreign state is being considered, or the petitioner” themselves.

Incidentally, the issue of the applicant’s representation remains unresolved in the draft, although judicial practice—particularly regarding the recognition of the possibility for an attorney providing professional legal assistance to the applicant to challenge inaction consisting of the failure to enter information about a criminal offense into the Unified Register of Pre-trial Investigations—varies.

Furthermore, the phrasing “procedural or investigative actions” is incorrect, given that investigative (search) actions are a type of procedural action, and for some reason, the article makes no mention at all of covert investigative (search) actions.

The proposed amendments to Article 234 of the Code of Criminal Procedure, although they address the long-standing problem of defense counsel’s participation in the consideration of a search warrant motion, are not consistent with Article 166 of the Code of Criminal Procedure, as the defense’s motion points out, and not merely with the defense counsel’s participation.

It is proposed that, in the event of a search or other investigative (search and seizure) actions conducted in the residence or other premises of a person who is not a party or participant in criminal proceedings, the attorney representing the rights and legitimate interests of such a person should enjoy the same rights granted by this Code to a suspect or defendant. It would seem more appropriate in this case to refer to the rights of the defense counsel for the suspect or accused.