CRIMINAL PROCEEDINGS: WILL EXPECTATIONS BE MET?

​CRIMINAL PROCEEDINGS: WILL EXPECTATIONS BE MET?

As is well known,  on July 1, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding the Simplification of Pretrial Investigations into Certain Categories of Criminal Offenses” dated November 22, 2018, came into force, introducing significant changes to the Criminal Procedure Code of Ukraine, including those concerning court proceedings for criminal misdemeanors.

At first glance, everything would seem more or less clear: according to Article 381 of the Code of Criminal Procedure of Ukraine, upon receipt of an indictment for the commission of a criminal misdemeanor, the court shall, within five days—or, in the event of a person’s detention, in accordance with the procedure provided for in Part 4 of Article 298-2 of the Code of Criminal Procedure of Ukraine—immediately schedule a hearing. The court shall consider the indictment for a criminal misdemeanor without holding a trial in a court session in the absence of the parties to the proceedings if the defendant does not contest the circumstances established during the preliminary investigation and agrees to the consideration of the indictment.

However, a number of questions arise.

First, regarding whether a preparatory court hearing is required. After all, on the one hand, the Code of Criminal Procedure of Ukraine stipulates that a trial shall be scheduled immediately. On the other hand, an amendment has been made to Article 314 of the CPC of Ukraine—“Preliminary Court Hearing”—which provides that: if it is objectively impossible to review the preliminary investigation materials in the manner provided for in Part 5 of Article 301 of this Code, the court, upon the motion of a party to the criminal proceedings, shall decide on the disclosure of the preliminary investigation materials to the parties to the criminal proceedings and shall issue a corresponding ruling to that effect.” In other words, this stage must still take place.

Second, there is a question regarding the consolidation of criminal proceeding materials. The Criminal Procedure Code of Ukraine provides for the possibility of consolidating criminal proceeding materials into a single proceeding or separating them into a separate proceeding, including materials relating to a misdemeanor and those relating to a felony. However, the procedure for conducting court proceedings following such consolidation is not specified. The pretrial investigation phase does provide for a procedure regarding crimes, which is logical.

Third, the court considers an indictment for a criminal misdemeanor without holding a trial in a court session in the absence of the parties to the proceedings if the defendant does not contest the circumstances established during the preliminary inquiry and agrees to the consideration of the indictment. In other words, the Code of Criminal Procedure of Ukraine does not require the opinion of the defense counsel, the victim, or the prosecutor to be established, although under the current version, the victim’s consent is required for such a hearing. The form in which consent must be given is not specified; however, to confirm its existence, it must undoubtedly be in writing.

At the same time, with regard to misdemeanors, a simplified court procedure is not the only option. The court has the right to schedule a hearing on the indictment for a criminal misdemeanor and to summon participants in the criminal proceedings to attend, if it deems it necessary. Although the Code of Criminal Procedure of Ukraine does not provide for this, the parties to the proceedings undoubtedly retain the right to file such a motion. In such a case, the general procedure for court proceedings applies. Let us focus on issues related to the examination of evidence.

As explained by the High Specialized Court of Ukraine in Information Letter No. 223-1446/0/4-12 dated October 5, 2012, “On Certain Issues Concerning the Conduct of Court Proceedings in First-Instance Criminal Proceedings in Accordance with the Criminal Procedure Code of Ukraine,” the scope of the evidence to be examined and the order of its examination (sequence) are determined by a court ruling and may be changed if necessary. In particular, the need to change the scope of evidence examination may arise from a finding that evidence is manifestly inadmissible, the emergence of new evidence (for example, when, in examining the circumstances of the case and verifying them with evidence, the court concludes that a forensic examination is necessary), and so on.

To what extent does this rule apply to proceedings concerning misdemeanors?

After all, Article 298-1 provides that, in criminal proceedings concerning criminal misdemeanors, in addition to the sources of evidence specified in Article 84 of this Code, also include statements by individuals, the results of medical examinations, expert opinions, and the readings of technical devices and equipment capable of taking photographs, filming, or making video recordings, as well as the photographs, films, and video recordings themselves. One of the criteria for the admissibility of evidence is proper collection procedure. The Criminal Procedure Code of Ukraine does not prescribe a procedure for collecting these sources of evidence (although it provides that these actions may be carried out prior to the entry of information into the Unified Register of Pre-trial Investigations). Therefore, it is currently unclear how the defense can challenge the admissibility of such evidence.

As the High Specialized Court of Ukraine explained in the same letter, after determining the scope and order of proceedings, the court begins the examination of evidence as provided for in Articles 351–361 of the CPC. Thus, the defendant and the victim are questioned first, followed by witnesses; expert opinions, physical evidence, and other materials are then examined.

The problems lie in the fact that:

- statements are not a source of evidence in court and, therefore, are not subject to examination at all, while all persons who provided statements are subject to questioning;
- the procedure for examining the results of medical examinations, expert opinions, and the evidence provided by technical devices and technical means capable of photography, cinematography, or video recording—or by the photographic, cinematographic, and video recording equipment itself—is not regulated. It can be assumed that the procedure for examining audio and video recordings—which applies to the evidence from technical devices and equipment capable of photographyand film recording, video recording, or devices for photography, film recording, and video recording—and the examination of documents—for the results of a medical examination.
- The procedure for examining an expert opinion is unclear. Article 360 of the Code of Criminal Procedure of Ukraine provides that during the examination of evidence, the court has the right to rely on oral consultations or written explanations from an expert, provided on the basis of the expert’s specialized knowledge. The expert may be asked questions regarding the substance of the oral consultations or written explanations provided. The first to ask questions is the person at whose request the expert was called, followed by other persons participating in the criminal proceedings. The presiding judge in the court hearing has the right to ask the expert questions at any time during the examination of evidence. However, this article does not address the expert’s opinion. Therefore, the procedural action within which the court will conduct such examinations (under Article 360 or Article 358—examination of documents) remains open (since questions may also be asked of the expert during the examination of documents).