Legal Position of the Committee for the Protection of Lawyers’ Rights and Guarantees of Legal Practice at the Ukrainian National Bar Association, prepared by Committee members I.V. Hlovyuk and D.V. Ponomarenko

Dear Colleagues!

The National Bar Association of Ukraine has always advocated for compliance with the provisions of criminal procedural law by all parties to criminal proceedings, adherence to the standards of professional ethics, and the inadmissibility of any violations thereof.

At the same time, hasty and unbalanced amendments to criminal procedure law made without consultation with the professional community, and without taking into account the current state of law enforcement practice, may lead to restrictions and violations of human rights that are incompatible with the principle of the rule of law, as guaranteed by Article 8 of the Constitution of Ukraine, and may result in appeals to the European Court of Human Rights. After all, one of the elements of the rule of law, as stated in the Report “The Rule of Law” (adopted by the Venice Commission at its 86th plenary session (Venice, March 25–26, 2011)), is respect for human rights (para. 41). In the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community, and their Member States, on the other hand, Article 14—Rule of Law and Respect for Human Rights and Fundamental Freedoms — it is stated that, within the framework of cooperation in the areas of justice, freedom, and security, the Parties attach particular importance to establishing the rule of law and strengthening institutions at all levels of governance in general, and law enforcement and judicial bodies in particular. Cooperation will be aimed, in particular, at strengthening the judiciary, improving its effectiveness, ensuring its independence and impartiality, and combating corruption. Cooperation in the areas of justice, freedom, and security will be based on the principle of respect for human rights and fundamental freedoms.

Furthermore, the importance of the right to legal aid has been repeatedly emphasized in international instruments on fair trial, as well as in the case law of the European Court of Human Rights.
The United Nations Principles and Guidelines on Access

to legal aid in the criminal justice system (2012) provide that legal aid is an essential element of a fair, humane, and effective criminal justice system based on the rule of law (para. 1). States must guarantee the right to legal aid in their national legal systems to the highest possible standard, including, where possible, in the constitution (para. 14). The Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime in August 1990) provide that every person has the right to seek the assistance of a lawyer of their choice to assert their rights and defend themselves at all stages of criminal proceedings. Governments must guarantee an effective procedure and a functioning mechanism for real and equal access to lawyers for all persons residing within its territory and subject to its jurisdiction, regardless of race, skin color, ethnic origin, sex, language, religion, political or other opinions, national or social origin, economic or other status. The Standards on the Independence of the Legal Profession (adopted by the International Bar Association) state that a fair system of administration of justice, which guarantees the independence of lawyers in the performance of their professional duties withoutundue restrictions, pressure, or interference, whether direct or indirect, is essential for establishing and maintaining the rule of law.

The Convention for the Protection of Human Rights and Fundamental Freedoms guarantees that anyone charged with a criminal offense shall be informed promptly and in detail, in a language he or she understands, of the nature and cause of the charge against him or her; to have the time and facilities necessary to prepare his or her defense; to defend himself in person or through legal counsel of his own choosing, or—if he does not have sufficient means to pay for legal counsel—to be provided with such counsel free of charge when the interests of justice so require; to examine witnesses for the prosecution or request that they be examined, as well as to request the summoning and examination of witnesses for the defense under the same conditions as witnesses for the prosecution; if he does not understand or speak the language used in court, to have the free assistance of an interpreter.

The European Court of Human Rights has emphasized in its decisions that the right of every accused person to effective legal representation is one of the fundamental elements of a fair trial. Although the right of every person accused of a criminal offense to effective defense by a lawyer, officially appointed if necessary, is not absolute, it constitutes one of the main cornerstones of a fair trial. Article 6(1) generally requires that access to a defense attorney be provided from the first interrogation of the suspect by police officers, except where, in the specific circumstances of the case, it is demonstrated that there are compelling reasons to restrict that right. Even if compelling reasons may, in exceptional cases, justify a denial of access to a defense counsel, such a restriction, regardless of its grounds, must not unduly infringe upon the accused’s rights guaranteed by Article 6 of the Convention. The right to a defense would, in principle, be irreparably violated if a confession obtained from a person during questioning by law enforcement authorities without access to a defense counsel were to be used for the purpose of convicting that person (see the judgments in *Salduz v. Turkey*, “Heletay v. Ukraine,” “Ibrahim and Others v. the United Kingdom,” “Saranchov v. Ukraine,” “Yaremenko v. Ukraine,” “Krombach v. France,” and others)
Article 2 of the Criminal Procedure Code of Ukraine provides that the objectives of criminal proceedings are to protect individuals, society, and the state from criminal offenses, to safeguard the rights, freedoms, and legitimate interests of participants in criminal proceedings, as well as ensuring a prompt, thorough, and impartial investigation and trial so that anyone who has committed a criminal offense is held accountable to the extent of their guilt, no innocent person is charged or convicted, no person is subjected to unjustified procedural coercion, and that due process is applied to every participant in criminal proceedings.

Thus, disregard for the right to defense is unacceptable in a democratic society and a state governed by the rule of law.
The 2012 Criminal Procedure Code of Ukraine, despite vague claims that it is a code designed for the defense, is in fact asymmetrical in terms of the procedural capabilities of the parties, with the prosecution holding the advantage.

First and foremost, this concerns the defense’s collection of evidence in criminal proceedings. Article 93 of the Criminal Procedure Code of Ukraine stipulates that the defense collects evidence by requesting and obtaining from state authorities, local self-government bodies, enterprises, institutions, organizations, public officials, and individuals—of items, copies of documents, information, expert opinions, audit reports, and inspection reports; initiating investigative (search) actions, covert investigative (search) actions, and other procedural actions, as well as by taking other actions capable of ensuring the submission of relevant and admissible evidence to the court.

However, the defense’s ability to request and obtain items, copies of documents, and information from state authorities, local government bodies, enterprises, institutions, organizations, public officials, and individuals is complicated, since the Criminal Procedure Code of Ukraine does not provide for an adequate procedural mechanism that would guarantee the ability to obtain the requested items.

The independent procedure for obtaining an expert opinion—which was one of the achievements of the original version of the Criminal Procedure Code of Ukraine—has been rendered ineffective by the so-called “Lozovoy amendments,” and currently, the defense is deprived of the ability to obtain an expert opinion without applying to an investigating judge or a court.
Initiating investigative (search) actions, covert investigative (search) actions, and other procedural actions also in no way guarantees that these actions will be carried out, since the prosecution may deny the motion, and appealing this refusal to an investigating judge and having the judge review the complaint currently takes a long time, which in no way facilitates the prompt collection of evidence by the defense.

Article 225 of the Criminal Procedure Code of Ukraine provides for the examination of a witness or victim during the pretrial investigation in a court hearing at the request of the defense, however, it does not explicitly state that the technical recording and the court transcript are to be provided to the defense in such a case.
Article 166 of the Criminal Procedure Code of Ukraine provides that in the event of non-compliance with a ruling granting temporary access to items and documents, the investigating judge or the court, upon a motion by the party to the criminal proceedings that has been granted the right to access such items and documents pursuant to the ruling, has the right to issue a ruling authorizing a search; and if the authorization to conduct a search is granted upon a motion by the defense, the investigating judge or the court shall instruct an investigator, a prosecutor, or a National Police unit at the location where these actions are to be carried out to ensure that the search is conducted. However, the Criminal Procedure Code of Ukraine does not contain any provision requiring the defense’s participation in the consideration of such a motion by an investigating judge or a court.

Article 221 of the Criminal Procedure Code of Ukraine stipulates that an investigator or prosecutor is required, upon a motion by the defense, to provide materials from the pretrial investigation for review, with the exception of materials concerning the application of security measures against persons participating in criminal proceedings, as well as those materials whose review at this stage of criminal proceedings could prejudice the pretrial investigation. However, the question of which materials, if reviewed at this stage of criminal proceedings, could prejudice the pretrial investigation is decided solely by the prosecution, without any judicial oversight, which generally does not comply with the practice of the European Court of Human Rights regarding the disclosure of materials to the defense. Furthermore, if a motion is denied, the defense is deprived of the opportunity to appeal such a denial to the investigating judge, since such a decision by the investigator or prosecutor is not included in the list of actions, decisions, or omissions provided for in Article 303 of the Criminal Procedure Code of Ukraine. Moreover, even when a motion is granted, there are instances where the prosecution effectively denies the defense the opportunity to review such materials.

Article 255 of the Criminal Procedure Code of Ukraine stipulates that information, items, and documents obtained as a result of covert investigative (investigative) actions, which the prosecutor does not deem necessary for the further conduct of the pretrial investigation, must be destroyed without delay on the basis of the prosecutor’s decision, except in the cases provided for in paragraph three of this article and Article 256 of the Criminal Procedure Code of Ukraine. Again, this issue is decided solely by the prosecution, without any judicial oversight, which generally does not comply with the practice of the European Court of Human Rights regarding the disclosure of materials to the defense. In such a situation, the defense is deprived of the opportunity to review the results of covert investigative (search) actions, which may potentially be necessary to defend the defense’s position, as they may contain exculpatory information.

The provisions regarding the defense counsel’s participation in procedural actions also restrict the right to a defense. Although Part 5 of Article 46 of the Criminal Procedure Code of Ukraine provides that a defense attorney has the right to participate in interrogations and other procedural actions conducted with the participation of a suspect or defendant, the Criminal Procedure Code of Ukraine lacks a provision requiring that the defense attorney be notified in advance of such proceedings. In practice, untimely notification results in the absence of defense attorneys and, consequently, accusations by the prosecution of obstructing procedural actions.
Unfortunately, this list could go on. However, we are confident that even these examples are sufficient to understand that the adversarial principle specified in Article 22 of the Criminal Procedure Code of Ukraine—which provides for the independent defense by the prosecution and the defense of their legal positions, rights, freedoms, and legitimate interests through the means provided for by the CPC of Ukraine, is in reality merely declarative; and the provision that the parties to criminal proceedings have equal rights to collect and submit to the court items, documents, other evidence, motions, complaints, as well as to exercise other procedural rights provided for by the Criminal Procedure Code of Ukraine, are not actually implemented in the regulatory provisions of the Criminal Procedure Code of Ukraine.

In practice, there are instances where the prosecution interprets differing interpretations of the provisions of the Criminal Procedure Code of Ukraine as abuse on the part of the defense. We will cite some examples of such interpretations.

It is not uncommon for the prosecution to file a motion with the investigating judge pursuant to Part 10 of Article 290 of the Criminal Procedure Code of Ukraine. However, if an unauthorized person notifies the defense of the completion of the pretrial investigation and grants access to the pretrial investigation materials (and in practice, investigators do not always provide a copy of the prosecutor’s order), the defense is not considered to have been duly notified, and accordingly, there can be no question of any delay.

Furthermore, Article 290 of the Criminal Procedure Code of Ukraine is titled “Disclosure of Materials to the Other Party.” The procedure for disclosing materials consists of three parts: notification of the provision of access to the materials; review of the materials—providing access to the materials and the opportunity to copy and reproduce, as appropriate, any physical evidence or parts thereof, documents or copies thereof, etc.; written confirmation of the fact that access to the materials has been granted, specifying the names of such materials. The term “review” is used in this article in Part 5 (in documents provided for review, information that will not be disclosed during the court proceedings may be redacted) and Part 6 (the decision on whether specific materials may be used by the prosecutor to prove the defendant’s guilt of committing a criminal offense and, consequently, the decision on whether or not to grant the prosecutor access to such materials, may be postponed until the defense has finished reviewing the materials of the pretrial investigation), Part 7 (upon the disclosure of materials by the parties to the criminal proceedings, the prosecutor or the investigator, acting on the prosecutor’s instructions, shall notify the victim and the representative of the legal entity against which the proceedings are being conducted, whereupon the latter has the right to review them in accordance with the rules set forth in this article), Part 8 (upon the disclosure of materials by the parties to the criminal proceedings, the civil plaintiff, his or her representative, and legal representative, as well as the civil defendant and his or her representative, shall be notified, after which these persons have the right to review them to the extent relevant to the civil claim, in accordance with the rules set forth in this article) and Part 10. An important conclusion follows from this: the review itself begins at the moment the right to access the materials is actually exercised, and not at the moment a notice is sent to the party, the victim, the representative of the legal entity against which the proceedings are being conducted, the civil claimant, their representative and legal representative, the civil defendant, or their representative, of the completion of the pretrial investigation and the granting of access to the pretrial investigation materials, or upon their receipt of such notification (as determined by the prosecution).

The second example concerns the interpretation of the provisions of Article 481 of the Criminal Procedure Code of Ukraine, pursuant to which written notification of suspicion is served: 1) to a lawyer, a member of a local council, a member of the Verkhovna Rada of the Autonomous Republic of Crimea, or a village, settlement, or city mayor—by the Prosecutor General, his deputy, or the head of a regional prosecutor’s office within the scope of his authority; 2) to a People’s Deputy of Ukraine, a candidate for President of Ukraine, the Human Rights Commissioner of the Verkhovna Rada of Ukraine, the Chair or another member of the Accounting Chamber, or a prosecutor of the Specialized Anti-Corruption Prosecutor’s Office, the Director or any other employee of the National Anti-Corruption Bureau of Ukraine, the Deputy Prosecutors General, or a member of the National Agency for the Prevention of Corruption—by the Prosecutor General (or the Acting Prosecutor General); 3) a judge, a judge of the Constitutional Court of Ukraine, a juror while performing his or her duties in court, the Chair, Deputy Chair, or a member of the High Council of Justice, the Chair, Deputy Chair, or a member of the High Qualification Commission of Judges of Ukraine, employees of the National Anti-Corruption Bureau of Ukraine—by the Prosecutor General or his deputy; 4) the Prosecutor General—by the Deputy Prosecutor General. However, it is not uncommon for a notice of suspicion to be served (or attempts to serve it to be made) on these categories of persons not by the Prosecutor General, his Deputy, or the head of a regional prosecutor’s office (in accordance with subparagraphs 1–4 of part 1 of this article), but by another prosecutor or investigator. Such a situation occurred, for example, in the case of attorney L.O. Shalimov. It is impossible to agree with the prosecution’s interpretation of the provisions of the Criminal Procedure Code of Ukraine for the following reasons.

Article 481 of the Criminal Procedure Code of Ukraine, titled “Notification of Suspicion,” contains in Part 1 the wording “Written notification of suspicion shall be carried out by:,” which, it appears, gives rise to conflicting interpretations. In contrast, Part 4 of Article 49 of the Law of Ukraine “On the Judicial System and the Status of Judges” stipulates that a judge may be notified of suspicion of committing a criminal offense only by the Prosecutor General or his deputy. Paragraph 13 of Part 1 of Article 23 of the Law of Ukraine “On the Bar and the Practice of Law” provides that notification of suspicion against an attorney of committing a criminal offense may be issued exclusively by the Prosecutor General, his deputy, or the prosecutor of the Autonomous Republic of Crimea, a region, the city of Kyiv, or the city of Sevastopol. Decision No. 222 of the Bar Council of Ukraine dated September 23, 2017, “On the Approval of the Explanation of Paragraph 13 of Part 1 of Article 23 of the Law of Ukraine ‘On the Bar and the Practice of Law,’” specifies that the term “is carried out,” in the context of guarantees for the practice of law, necessarily includes the signing of a notice of suspicion, the service of the notice of suspicion, and the explanation of procedural rights to the suspect.

The general rules for both the drafting and service of a notice of suspicion are regulated in a single Chapter 22 of the Criminal Procedure Code of Ukraine, which demonstrates the consistency of the relevant procedure, which consists of several stages. Chapter 22 of the Criminal Procedure Code of Ukraine contains the phrase “Service of a written notice of suspicion” (Art. 278), which is the next stage in the notification of suspicion following the drafting of a written notice of suspicion and, if drafted by an investigator, its approval by the prosecutor.

Article 276 of the Criminal Procedure Code of Ukraine contains a reference provision: “The specifics of notifying a particular category of persons of suspicion are determined by Chapter 37 of this Code.” That is, based on a lexical-grammatical interpretation of these formulations, it can be argued that the term “notification of suspicion” is a generic term that applies both to the drafting of a written notification as well as to its service; that is, it encompasses both of these stages of the procedure for notifying a person of suspicion. This conclusion is fully consistent with the title of Article 481 of the Criminal Procedure Code of Ukraine: “Notification of Suspicion.” The lexical meaning of the word “to carry out” is as follows: “To implement, to put into practice, to make something valid or real.” In the context of notification of suspicion, this indicates that it is incorrect to consider the stages of drafting and service in isolation, including with regard to the parties responsible for carrying them out.

Although the wording of Part 1 of Article 481 of the Criminal Procedure Code of Ukraine is somewhat narrower, since it is phrased as “A written notice of suspicion shall be issued,” the application of lexical-grammatical and systemic methods of interpreting the provisions of Articles 276–279, 480–481 of the Criminal Procedure Code of Ukraine, demonstrates the logical and correct interpretation of the wording “A written notice of suspicion shall be issued” in the unity of its components, namely the drafting and service of the notice of suspicion. Thus, a written notice of suspicion to the persons specified in subparagraphs 1–4 of Part 1 of Article 481 of the Criminal Procedure Code of Ukraine must be both drafted and served by the officials specified in subparagraphs 1–4 of Part 1 of Article 481 of the Criminal Procedure Code of Ukraine. The CPC of Ukraine does not contain any provisions that would allow for the delegation of the duty to serve a written notice of suspicion to this category of persons to another prosecutor, investigator, or any other official.

Therefore, a written notice of suspicion served on the persons specified in subparagraphs 1–4 of Part 1 of Article 481 of the Criminal Procedure Code of Ukraine must be both drafted and served by the officials specified, respectively, in subparagraphs 1–4 of Part 1 of Article 481 of the CPC of Ukraine. The CPC of Ukraine contains no provisions that would allow for the delegation of the duty to serve a written notice of suspicion in such cases to another prosecutor, investigator, or any other official.

All of this, in our view, unequivocally confirms that the defense is significantly limited in its procedural capabilities compared to the prosecution, and the adoption of amendments and additions to the Criminal Procedure Code requires careful consideration with regard to compliance with the right to defense in criminal proceedings, as guaranteed by international human rights standards.

Authors: Members of the Committee for the Protection of Lawyers’ Rights and Guarantees of Legal Practice at the Ukrainian National Bar Association, I.V. Hlovyuk and D.V. Ponomarenko