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Annotation: Implementation of the special court proceedings of criminal process in Ukraine by parliament should facilitate the aim of most fair, prompt and efficient proceedings. However the issue of procedural and legal nature of these institutions remains debatable. That’s why the emergence of practical problems related to the implementation of the special proceedings necessitates the improvement of the rules which govern it.
Keywords: special proceedings, «in absentia», absent criminal proceedings, the accused, national, international, interstate search.
The Criminal Procedure Code of Ukraine (hereinafter − CPC) provides for the court hearing the participation of the parties of criminal proceedings. This is like a key for realization of their rights and responsibilities and the respect for the principles of criminal proceedings (in particular, such as equality before the law and the courts, access to justice, the right to protection, competition and freedom of disclosure of evidence to the court and prove of their cogency).
In view of this criminal proceedings as a general rule carried out with the necessary participation of both the prosecution and the defense. It’s not important only the presence of a professional participant of the defense (defender) who features the participation in the trial may be the subject of a separate thorough investigation but the presence of an accused whose personal participation in criminal proceedings in accordance with art. 20 of the CPC is an element of the right to protection. The presence of the accused in the courtroom provides an opportunity for the realization of his / her procedural rights, obligations, also full and comprehensive investigation of the evidence.
However after the enactment of CPC the human rights activists faced with the problem of actual impossibility as for achieving the tasks which mentioned under art. 2 CPC. For example in a case where some person hide from the investigating authorities and courts to evade criminal responsibility. This problem necessitated to make the amendments to the CPC.
The first legislator’s attempt to realize the idea about the trial in the absence of the accused was made on the 16th of January, 2014 when the Ukrainian parliament adopted the Law “About the amendments to the Criminal Code of Ukraine (regarding absentee criminal proceedings)”. A new chapter 41-1of CPC “Distance criminal proceedings” included the pre-trial investigation and court proceedings without the suspect / accused who was duly notified of the date, time and place when will be the investigation actions or judicial trial. Nevertheless should be a legitimate reason, e.g. accused did not appear more than twice in succession or he did not inform about the reasons of failure or notify reasons were deemed unreasonable. This formulation standards of CPC created the legal possibility of criminal proceedings against a person without his / her knowledge and therefore without its participation but with the mandatory participation of counsel for the defence. Although this chapter included some provisions that could facilitate for a fair trial (in particular, the minimum terms of receiving summons or notice in the case of residence abroad, the mandatory participation of defense counsel, etc.). However certain rules of procedure contained the danger of depriving citizens of legal opportunities to realize their procedural rights. That’s why principles implementation of criminal proceedings was put into question. Due to the risk presence of the suspect / accused rights violations, the rules of criminal proceedings in absentia existed in the criminal procedural legislation of Ukraine is not a long time: from the 16th to the 28th of January 2014 and was repealed by the Law of Ukraine “About the recognition of some invalid laws in Ukraine”.
At the same time lawmakers did not leave attempts to introduce procedures for pre-trial investigation and trial in the absence of the accused. On the 7th of October, 2014 the Law of Ukraine “About the amendments to the Criminal and Criminal Procedural Codes of Ukraine regarding the inevitability of punishment for certain crimes against national security, public safety and corruption offenses” introduced the procedure of special pre-trial investigation and special trial “in absentia” which allowed the proceedings in the absence of the accused in the case of certain reasons.
The main purpose of the article is implement a comprehensive legal analysis of judicial review about «in absentia» and identification of key risks limiting the powers of the accused. For this plan to perform the following tasks:
1) identify prerequisite amendments to the CPC and initiate special proceedings; 2) examine art. 323 CPC and others to establish standards PDAs and legal content about the new order of the proceedings;
3) identify the main problems of the use of special proceedings.
The issue of the special proceedings raises many questions among theorists and practitioners in the field of criminal procedure. The criminal innovation was the subject of many research among eminent jurists including: I. Hlovyuk, E. Kuchinsky, V. Cinderella, I. Chernichenko, L . Udalova.
Prerequisite for the introduction of a test procedure was the emergence of a large number of criminal proceedings in which the accused fleeing abroad. Execution proceedings against such people burdened with a number of legal formalities: first, you need to establish, on the basis of reliable evidence, the fact of being in a foreign country; second, make a request for extradition to the competent authorities of foreign countries; thirdly, make extradition which has certain difficulties associated with the fact that a foreign state can not agree on its implementation. Special problems arise in the criminal proceedings against persons who are situated on the temporarily occupied territory of Ukraine because these lands continue to be an integral part of the state (art. 1 of the Law of Ukraine “About the rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine”) so extradition of criminals who are there, is impossible. In such circumstances the prospects for solving problems of the criminal proceedings normally are vague and the court loses its ability to protect the rights of victims. As noted in the explanatory note to the bill, the main objective of innovation is “ensure the inevitability of people punishment who are fleeing on the temporarily occupied territory of Ukraine or in the area of anti-terrorist operation”. An additional argument is that legislators formally establishes a new, different from the correspondence criminal proceedings, special proceedings procedure applied in exceptional cases. The envisaged list of offenses for which the proceedings can be initiated as for the application procedure «in absentia» and clearly defined reasons for the special proceedings that were not previously envisaged, namely reason to declare a person in interstate and / or international wanted list.
Analyzing the legal mechanism of special proceedings, it should be noted that the possibility of its application arises only in case of simultaneous existence of three reasons. The first is that the procedure «in absentia» can be used in the proceedings concerning the specified circles criminally punishable acts, specific listed in ch. 2, art. 297-1 CPC. In particular, these crimes against national security of Ukraine and crimes against the peace and security of humanity and international law set in the Section I and XX of the Special Part of the Criminal Code of Ukraine, premeditated murder, crimes related to terrorism and corruption offenses. The second reason is a fact proved by the authorized as for the accused’s evasion in order to appear in court. It means that accused did not attend for a challenge without a good reason more than twice. Human’s avoidance for an arriving at the call may be brought only if the accused previously has been properly notified of the judicial hearing. In this context we should say that the legislator in order to avoid violations of the accused’s rights provides a summons. In addition to actions specified in art. 135 CPC − sending summons to the last known residence of the accused, additional steps are carried out under ch. 3 art. 323 CPC − publication the information about the summons in the media. Application of this method allows to say that all methods used to report a person. Accordingly presumed that the accused is notified about judicial sitting. The third reason as for use of special proceedings is to declare a person in interstate and / or international wanted list. A simultaneous existence of provided grounds (except when it is not permissible to use a such procedure, for example when the accused is a minor), the prosecutor may file a petition for a court on the implementation of special proceedings in respect of the accused. Based on the review petition the court pass a resolution which accepts the request and appoint a judicial proceeding in order «in absentia» or which denies the request. It should be noted that initiating the question of special proceedings which was denied the prosecutor loses the opportunity to re-apply to the court with the same request, except for new circumstances show that the defendant running from court to evade criminal responsibility and declared in interstate and / or international wanted list. In addition the CPC does not provide for an appealing against the decision of the court to refuse the application of the special proceedings. It is worth to mention one crucial detail concerning the trial on the accused who are hide on the temporarily occupied territory of Ukraine. After all, along with amendments to the CPC, the initiators of the bill also made changes to the laws “About the rights and freedoms of citizens and legal regime on the temporarily occupied territory of Ukraine”, “About the administration of justice and criminal proceedings in connection with the anti-terrorist operation”. Under the provisions of the above acts the non-appearance of accused to the court after challenge who situated on the temporarily occupied territory of Ukraine, does not require confirmation by ads in interstate or international wanted list. The decision accepted by an investigator will be enough to declare a circulation of a person in the state. It should be noted that the application of the Act seems problematic because it contradict the contents of ch. 3art. 323 CPC which states the requirement to declare a person is in interstate and / or international wanted list. In addition, ch. 3 art. 9 CPC clearly indicate that it has the supreme legal force than other laws. Accordingly creates the potential of serious practical problems when announcing only nationwide search for people who are situated on the temporarily occupied territories as a base for the special proceedings.
Other issues are also attracted the attention. Criminal Procedure Law provides to find a person by declared for a search if a person fails to appear for a challenge without good reason more than twice and the inspection of the last place of residence, work, questioning people who might know where the person. However it should be noted that the implementation of these measures is not sufficient to say that a person evaded the challenge and that is the need to declare for a search. Moreover the opinion of the investigator, prosecutor or court about the impossibility of tracing person may be too subjective. For example, do not exclude the situation when a person has no close relatives and neighbors or friends do not know about the place of stay because of a long trip or isolated lifestyle. Authorized people are often do not consider the possibility of such circumstances and make the wrong conclusion about the person’s absconding. They talk about the need for declaring for a search at the time when the accused is not actually fugitive. It is a possible case when witnesses may forged or give false testimony. All of these circumstances and the fact that the judge did not fully check the actions of the investigator to search for the person causing concern that declare a person in search can be arbitrary and used purely in order to form a basis for initiating the issue of special proceedings.
You should also pay attention to the fact that the main task of the legislator is the administration of justice against those who evade from participating in the proceedings and the successful implementation of the decision on them is at risk of default. It cause of some provisions of the CPC which are not consistent with the norms of international laws. For example, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime which operates in Ukraine since 1997, p. «F» ch. 4 art. 18 provides that confiscation may be refused if the request relates to a confiscation order which stems from the decision taken in the absence of the person against whom the order was made and the requested party proceedings, in which was made a decision did not provide the minimum rights of defense. Accordingly there is a situation that makes it impossible for the court executions, particularly in corruption crimes.
Summarizing all the above, it should be noted the CPC grounds for the application of the special proceedings sufficiently detailed and defined, creating the risk of ignoring some important aspects. In view of this, at present there is an urgent need to improve the procedure «in absentia» by making a number of changes to the CPC and other laws.
- Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1997: Electronic resource. − [Access]: http://zakon4.rada.gov.ua/laws/show/995_029.
- Criminal Procedural Code of Ukraine. April 13, 2012 // Supreme Council of Ukraine. − 2013. − № 9-10, № 11-12, № 13. − Art. 88.
- About the amendments to the Criminal Code of Ukraine (regarding absentee criminal proceedings): Law of Ukraine on January 16, 2014 // Supreme Council of Ukraine. − 2014. − № 22. − Art. 805.
- About the ceasing to be invalid some laws of Ukraine Law of Ukraine on January 28, 2014 // Supreme Council of Ukraine. − 2014. − № 22. − Art. 881.
- About the amendments to the Criminal and Criminal Procedural Codes of Ukraine regarding the inevitability of punishment for certain crimes against national security, public safety and corruption offenses: Law of Ukraine dated 7 October 2014 // Supreme Council of Ukraine. − 2015. − №1. − Art. 2.
- About the rights and freedoms of citizens and legal regime in the temporarily occupied territory of Ukraine Law of Ukraine on April 15, 2014 // Supreme Council of Ukraine. − 2014. − № 26. − Art. 892.
- The administration of justice and criminal proceedings in connection with the anti-terrorist operation: Law of Ukraine on August 12, 2014 // Supreme Council of Ukraine. − 2014. − № 39. − Art. 2009.
- The explanatory note to the Law of Ukraine “On Amendments to the Criminal and Criminal Procedural Codes of Ukraine regarding the inevitability of punishment for certain crimes against national security, public safety and corruption offenses”: electronic resource. − [Access]: http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_2?id=&pf3516=4448%E0&skl=8.