Denis Ponomarenko, Partner at BARRISTERS, LLC: “Acquittals should not be linked to poor performance by law enforcement agencies.”

Domestic reformers have incorporated quite a few European standards of criminal procedure into Ukrainian legislation. But do these European approaches actually work in Ukraine? What advantages do they offer the defense? Can they provide adequate protection against abuses by the prosecution? Denis PONOMARENKO, a partner at the “BARRISTERS” law firm, discussed these and other issues on the eve of the Ukrainian Bar Association’s “Golden Duke” summer forum on criminal law and procedure.

 “In my practice, there are almost no procedural documents that do not contain references to the case law of the European Court of Human Rights.”

— Your firm is the general partner of the UBA’s “Golden Duke” Summer Forum on Criminal Law and Procedure. One of the forum’s sessions is dedicated to international standards of criminal procedure set forth in the UN Convention or the Convention for the Protection of Human Rights and Fundamental Freedoms, which serves as the basis for the European Court of Human Rights. Are these standards effective in Ukraine?

— The standards of criminal procedure enshrined, in particular, in the Convention for the Protection of Human Rights and Fundamental Freedoms are legally binding on Ukraine. Back in 2006, Law No. 3477-IV “On the Enforcement of Decisions and the Application of the Case Law of the European Court of Human Rights” entered into force, stipulating that courts shall apply the Convention and the case law of the European Court of Human Rights as a source of law when adjudicating cases. Furthermore, a number of international standards for criminal proceedings are enshrined in the 2012 Code of Criminal Procedure, which provides that Ukraine’s criminal procedural legislation is to be applied with due regard to the case law of the European Court of Human Rights.

Regarding their effectiveness: The provisions of the Convention and the case law of the ECHR are actively used by attorneys, particularly when defending clients in criminal proceedings. In my practice today, there are almost no procedural documents that do not contain references to ECHR judgments. Courts also cite ECHR case law in their decisions. This is particularly common when addressing issues related to pretrial measures.

The ECHR’s legal positions are actively used to justify decisions of the Supreme Court. This demonstrates the positive impact of international standards on Ukrainian criminal proceedings, although, unfortunately, the prosecution does not always take them into account.

 “The right to appeal a notice of suspicion is effective, but this mechanism needs improvement”

— Regarding the prosecution. The Ukrainian Code of Criminal Procedure is constantly being improved, and one of the new provisions is the ability to appeal a notice of suspicion. Does this appeal mechanism align with international practice? Is it effective in Ukraine?

— The right to appeal a notice of suspicion has been in effect at the regulatory level in Ukraine for over a year. Undoubtedly, this is an important tool for the defense in criminal proceedings, since if the notice of suspicion is revoked: the person loses the status of a suspect; preventive measures cannot be applied to them; conducting a pretrial investigation in absentia becomes impossible; in certain cases, questions arise regarding the non-extension of pretrial investigation deadlines and, depending on the grounds for revocation, regarding the admissibility of the evidence supporting the suspicion.

However, its implementation presents certain challenges related to the following.

The subject matter of judicial review when considering such a complaint is not defined in the Code of Criminal Procedure, and therefore is not always interpreted uniformly in judicial practice.

There are instances where it is argued that the validity of the suspicion has already been verified if a preventive measure has been applied to the suspect.

There are cases where investigating judges refuse to analyze the validity of the suspicion.

Furthermore, since the entry into force of Law No. 2147-VIII and, specifically, the amendments to paragraph 10 of Part 1 of Article 303 of the CPC, a line of judicial precedent has emerged, according to which, in cases entered into the Unified Register of Pretrial Investigations prior to March 16, 2018, a notice of suspicion cannot be challenged. At the same time, many different scholarly and practical articles have been written and published, all of which conclude that, in accordance with Article 5 of the Code of Criminal Procedure, such practice is incorrect and that the provisions of §2, paragraph 4 of the “Final Provisions” of Law No. 2147-VIII should not be applied—a view with which I fully agree.

Therefore, in general, the right to appeal a notice of suspicion is effective, but this mechanism needs improvement.

— When should one insist on appealing a notice of suspicion, and when should one not?

— The use of the procedural mechanism—appealing a notice of suspicion—as well as the timing of the appeal depends on the defense strategy in a specific criminal proceeding. There are no universal recommendations here. Much depends on the grounds for the appeal, how they can be used to defend the client, how procedural violations committed by the prosecution affect the admissibility of evidence, and so on.

“One of the most anticipated developments is the adoption of the so-called law on criminal misdemeanors”

— And how do you develop a defense strategy? Do you have techniques that work in most cases? Or is every case unique?

— Defense strategies are undoubtedly tailored to each individual case, as no two criminal proceedings are alike. Furthermore, one must always consider which tactical approaches will benefit the client in each specific case and at a particular stage of the criminal proceedings.

However, there are also general recommendations, specifically regarding: the participation of a team of attorneys in the proceedings; filing written objections to all motions submitted by the prosecution to the investigating judge; filing objections to the indictment; using rulings by investigating judges regarding the inadmissibility of evidence to substantiate the defense’s procedural documents; immediate response to instances of failure to comply with pretrial investigation deadlines; violations of jurisdiction; failure to enter information into the Unified Register of Pretrial Investigations; violations of the requirements of Article 290 of the Code of Criminal Procedure, etc.

— What new provisions in criminal law might be useful to a defense attorney when representing a client?

— One of the most anticipated amendments to both criminal and criminal procedural legislation is the adoption of Law No. 2617-VIII “On Amendments to Certain Legislative Acts of Ukraine Regarding the Simplification of Pre-trial Investigations into Certain Categories of Criminal Offenses,” or the so-called “Law on Criminal Misdemeanors.” This document has significantly altered the classification of criminal offenses by distinguishing criminal misdemeanors (acts—whether by commission or omission) the commission of which is punishable by a fine of no more than 3,000 non-taxable minimum incomes or another penalty not involving imprisonment, as well as minor, serious, and especially serious crimes.

It is provided that investigations into offenses will be conducted in the form of a preliminary inquiry, in connection with which a new role—the investigator—is introduced into criminal proceedings. The time limits for preliminary inquiries have also been reduced.

Sources of evidence in criminal proceedings now include statements by individuals, results of medical examinations, expert opinions, and readings from technical devices and equipment capable of taking photographs, filming, or making video recordings, as well as from photographic, cinematographic, and video recording devices themselves.

The court, as a general rule, will review an indictment for the commission of a criminal offense without holding a court hearing in the absence of the parties to the proceedings, provided that the defendant does not dispute the circumstances established during the preliminary investigation and agrees to the review of the indictment.

I would like to note that this same law adds Article 2861 to the Criminal Code (“Operating a vehicle while under the influence of alcohol, drugs, or other intoxicating substances, or under the influence of medications that impair attention and reaction time”). This offense is punishable by a fine ranging from 1,000 to 2,000 non-taxable minimum incomes, along with the revocation of the right to drive for up to three years. A repeat offense will be punishable by a fine of up to 3,000 non-taxable minimum incomes, along with a suspension of the right to drive for a period of 2 to 3 years.

All of this will require a new defense strategy specifically regarding criminal offenses.

“The prosecution may commit procedural violations that affect the admissibility of evidence.”

— How often do cases in Odessa “fall apart” in court due to improper work by law enforcement agencies?

— It is impossible to provide such statistics, and the phrase “cases fall apart,” in my opinion, is incorrect. After all, the point is that the prosecution was unable to prove the person’s guilt beyond a reasonable doubt.

The principle of the presumption of innocence holds that a person is presumed innocent of committing a criminal offense and cannot be subjected to criminal punishment until their guilt is proven in accordance with the procedure set forth in the Code of Criminal Procedure, and established by a final and binding guilty verdict of the court.

Accordingly, there are various grounds for rendering an acquittal, in particular when it has not been proven that: a criminal offense of which the person is accused has been committed; the criminal offense was committed by the accused; the accused’s actions constitute a criminal offense. Therefore, a person must be presumed innocent until the verdict becomes final. Consequently, acquittals cannot be equated with “derailing the case,” since that would effectively imply the person’s guilt, which is impermissible.

Undoubtedly, the prosecution may commit procedural violations that affect the admissibility of evidence, which in turn impacts the evidentiary record. In such cases, of course, the standard of proof “beyond a reasonable doubt” is not met in the specific case. However, this is due not only to the improper conduct of law enforcement agencies but also to shortcomings in criminal procedural law.

— Do such shortcomings serve as grounds for Odessa judges to issue acquittals? How many acquittals have been handed down in Odessa since the 2012 Code of Criminal Procedure came into effect, given that increasing this number was one of the goals of adopting the code?

— I would like to emphasize once again that acquittals cannot be attributed to poor performance by law enforcement agencies. The overall statistics for final judgments nationwide are as follows: 2018 — 73,700 people were convicted, 140 were acquitted, and cases involving 22,400 people were dismissed; 2017 — 76,800 people were convicted; 311 were acquitted; cases against 19,700 people were dismissed; 2016 — 76,200 people were convicted, 314 were acquitted, and cases against 16,800 people were dismissed; 2015 — 94,800 people were convicted, 306 were acquitted, and cases involving 18,300 people were dismissed; 2014 — nearly 102,200 people were convicted; 60 were released from custody following acquittal. As can be seen, the percentage of acquittals is negligible.

In Odesa, I had previously sent attorney inquiries regarding the number of acquittals. However, the responses I received did not even include the acquittals that had occurred in my own practice. Thus, the available statistics on acquittals in Ukraine are inaccurate.

“For a lawyer, the best defense is their professional reputation”

— Experts whom our editorial team spoke with previously suggested that law enforcement’s desire to live up to society’s expectations compels them to commit a series of violations, including putting pressure on lawyers. How often do lawyers in Odesa encounter violations by law enforcement officials?

— Unfortunately, both in Odesa and across the country as a whole, there are glaring instances of violations of lawyers’ rights and failure to uphold the guarantees for legal practice provided for by the Law “On the Bar and the Practice of Law.” These violations include denying lawyers the right to perform procedural actions, the artificial replacement of lawyers when, in the opinion of the prosecution, procedural actions are urgent, violations of lawyers’ rights during searches of law offices, and the seizure of physical media containing information constituting attorney-client privilege. This list could go on and on.

There are also more egregious situations—cases of attacks on the lives and health of lawyers, threats, and the destruction or damage of lawyers’ property. Statistics provided by the Prosecutor General’s Office in response to a request from the deputy chair of the Committee on the Protection of Lawyers’ Rights and Guarantees of Legal Practice at the National Bar Association of Ukraine (incidentally, both I and Yuriy Zhovtan, a partner at Barristers Law Firm, as well as Iryna Hlovyuk, an attorney at Barristers Law Firm, are also members of this committee), show that from 2017 to the present, information regarding criminal offenses against lawyers (under Articles 397–400 of the Criminal Code) has been entered into the Unified Register of Pre-trial Investigations 665 times.

In total, in 2017, less than 1% of criminal proceedings were referred to court with an indictment; 48% were closed; and no decision was made in 51% of cases. In 2018, less than 1% of criminal proceedings were sent to court with an indictment; 36% were closed; and no decision was made in 64% of cases. In the first half of 2019, 0% of criminal cases were referred to court with an indictment, 12% were closed, and no decision was made in 88% of cases.

As can be seen, these statistics are very discouraging and indicate that law enforcement agencies are unwilling to investigate acts involving attacks on attorneys and violations of their rights. We hope that the activities of the State Bureau of Investigation will bring about some change in this regard.

In general, to protect the rights of lawyers, a committee for the protection of lawyers’ rights and guarantees of legal practice has been established and is actively operating under the Ukrainian National Bar Association (UNBA). The Odesa Regional Bar Association has a committee for the protection of lawyers’ professional rights and the implementation of guarantees for the practice of law, whose task is to ensure an immediate and effective response to unlawful actions directed against a lawyer, by any state bodies—including the prosecutor’s office, pretrial investigation authorities, the judiciary, and local self-government bodies—as well as their officials and employees, and other legal entities and individuals; to protect the professional rights of attorneys and ensure compliance with the guarantees of the legal practice by undertaking activities not prohibited by law regarding a specific attorney, group of attorneys, law firm, or law office in the event of a violation or threat of violation, etc.

In 2018, attorneys who were members of the Odesa Regional Bar Association’s committee participated 17 times in investigative (search) proceedings concerning attorneys. During the same period, 15 complaints from attorneys regarding gross and systematic violations of the guarantees of the legal profession were reviewed. Six reports were sent to law enforcement agencies regarding criminal offenses under Articles 397–398 of the Criminal Code. Written appeals were also sent to law enforcement agencies regarding the prevention of violations of lawyers’ professional rights and the timely notification of the Bar Association regarding investigative (search) actions conducted against them.

— How do you ensure your own protection?

— For a lawyer, the best defense is their professional reputation, the proper fulfillment of their duties, adherence to the rules of legal ethics, and correct and restrained behavior in all situations.

— Does the court take into account instances of pressure exerted on a lawyer during the hearing of a case involving his or her client? Have there been any such cases in your practice?

— In my practice, there have been instances of pressure exerted on me as a lawyer: in 2017, my car was set on fire. Incidentally, the perpetrators and those who ordered the attack remain unknown. There have also been other situations and attempts to exert pressure. Undoubtedly, such incidents should be reported to the court, and in the case of an organized PR campaign against a lawyer, the court will learn of these facts on its own. It’s hard to say how this might influence the court, since the court makes decisions based on its own internal convictions. As for the issue of pressure on the attorney—that is a separate proceeding.