On the Participation of a Legal Entity’s Representative in Criminal Proceedings and Other Amendments to the Code of Criminal Procedure

At the time, one of the most interesting and significant changes introduced by the 2012 Criminal Procedure Code of Ukraine was the introduction of a new participant in the proceedings—a representative of a legal entity against which criminal proceedings are being conducted. The status of such a party is defined by Article 64-1 of the Criminal Procedure Code of Ukraine, which came into effect on May 23, 2013.

Recognizing legal entities as full-fledged participants in criminal proceedings has provided them with quite powerful and effective tools to protect their rights and interests, including against arbitrariness and unlawful pressure from unscrupulous law enforcement officials. Thus, in accordance with Article 64-1 of the Criminal Procedure Code of Ukraine, a representative of a legal entity in criminal proceedings has the right to: know the criminal offense in connection with which proceedings are being conducted against the legal entity and provide explanations regarding this matter; to receive legal assistance; to collect and submit evidence to the investigator, prosecutor, investigating judge, or court; to participate in procedural actions; during the conduct of procedural actions, to ask questions, submit comments and objections regarding the manner in which the actions are conducted—which are recorded in the minutes—and to review the minutes of investigative (search) and other procedural actions carried out with his or her participation; use technical means, in compliance with the requirements of this Code, during procedural actions in which he participates. An investigator, prosecutor, investigating judge, or court has the right to prohibit the use of technical devices during a specific procedural action or at a certain stage of the proceedings in order to prevent the disclosure of information containing a secret protected by law, or relating to a person’s private life, which shall be set forth in a reasoned ruling (order); file motions regarding the conduct of procedural actions and the assurance of safety for themselves, their family members, close relatives, property, residence, etc.; to file challenges; to receive copies of procedural documents and written notifications; to appeal decisions, actions, and omissions of the investigator, prosecutor, or investigating judge in accordance with the procedure provided for by this Code; to use their native language, to receive copies of procedural documents in their native language or another language they are fluent in, and, if necessary, to use the services of an interpreter.

At the same time, these defense mechanisms are not utilized frequently enough or to their full extent by fellow attorneys and in-house counsel. This is primarily due to difficulties in becoming involved in the proceedings and the lack of established practice and clear procedures. For their part, investigators and prosecutors are almost always uninterested in the appearance of a new participant in the proceedings with corresponding rights, motions, and complaints. Quite often, upon receiving a motion from a representative of a legal entity, pretrial investigation authorities limit themselves to responses such as: “You are not a participant (party) in the proceedings,” “The motion is not subject to consideration,” and so on. It is also quite common for requests from a representative of a legal entity to receive no written response at all.

The practice of protecting the rights and interests of legal entities in criminal proceedings is also complicated by the imperfections in the legislation and the lack of systematic consistency between the provisions of the Criminal Code and the Code of Criminal Procedure. There is no clear distinction between the concepts of “criminal proceedings against a legal entity” and “measures of a criminal-law nature.” Therefore, over time, the need for additional regulation of the rights of a legal entity’s representative in criminal proceedings has become increasingly evident. Attorney Denis Ponomarenko, a partner and head of the Odessa office of the “Barristers” Law Firm, is particularly convinced of this.

For example, the attorney proposes making the following amendments to the Code of Criminal Procedure:

1. A representative of a legal entity against which proceedings are being conducted, as well as a third party whose property is subject to a seizure order, shall be considered part of the defense in criminal proceedings.
2. The mandatory participation of a defense attorney is ensured in criminal proceedings against persons for whom a motion has been filed to conduct a special pretrial investigation or special judicial proceedings—from the moment the motion is filed.
3. If an investigator or prosecutor misses the deadline for filing a motion to temporarily restrict the exercise of a special right or to temporarily seize documents, the investigator or prosecutor must file such a motion within 24 hours after the deadline has expired.
4. The investigator or prosecutor is required, upon a motion by the defense, the victim, or a representative of the legal entity against which the proceedings are being conducted, the complainant, any other person whose rights or legitimate interests are restricted during the pretrial investigation, as well as a person providing professional legal assistance to the complainant or such other person, to provide them with the materials of the pretrial investigation for review.
5. It is necessary to provide that a representative of a legal entity against which proceedings are being conducted also has the right to challenge failure to comply with reasonable time limits in accordance with Article 308 of the Code of Criminal Procedure of Ukraine.

At the same time, it is clear that it is not only the rights of representatives of legal entities that require clarification, as further amendments to the Code of Criminal Procedure are urgently needed for other participants in the proceedings as well. In this regard, Denys Ponomarenko proposes a comprehensive set of legislative innovations:

1. Establish a clear list of rights, including the right to professional legal assistance, for any other person whose rights or legitimate interests are restricted during the pretrial investigation.
2. A person against whom a notice of suspicion has been drawn up but has not been served due to the person’s whereabouts being unknown shall be served with the notice of suspicion no later than 24 hours after their whereabouts are established.
3. REPEAL the obligation of the accused to provide accurate information to a representative of the probation service necessary for the preparation of a pretrial report.
4. Provisions must be made to ensure that the defense counsel has the right to participate in procedural actions conducted with the participation of the suspect or accused, as well as in other procedural actions—with the permission of the investigator, prosecutor, investigating judge, or court.
5. It is necessary to provide that the applicant has the right to review the materials of the pretrial investigation in accordance with Article 221 of the Code of Criminal Procedure of Ukraine and Article 290 of the Code of Criminal Procedure of Ukraine.
6. A witness has the right to personally record their testimony in the interrogation protocol.
7. Evidence obtained during the execution of a warrant authorizing the search of a person’s residence or other premises is inadmissible if a defense attorney was not permitted to be present during that investigative (search) action. It should also become standard practice that the prosecution must conduct continuous audio and video recording of any procedural action carried out in a person’s residence or other premises.
8. Temporarily seized property shall be returned to the person from whom it was seized, pursuant to a prosecutor’s order, if the prosecutor deems such seizure to be unfounded—within 24 hours of the issuance of the order. Additionally, it must be provided that temporarily seized property shall be returned to the person from whom it was seized, in the event that a motion to seize such property is denied by a ruling of an investigating judge or a court, by a prosecutor, or by another person acting on the prosecutor’s behalf—within 24 hours of the ruling being issued.