On July 6, 2020, Transparency International Ukraine started the main stage of High Anti-Corruption Court performance monitoring. The experts prepared their analysis for July 6 — October 8, 2020.
As part of this stage, 135 court hearings were attended (including those that did not take place). Among all the hearings attended, 78% took place, the others were postponed.
Given that 83 criminal proceedings are being monitored, 22% of the hearings being postponed are of some concern. The reasons for the postponement will be described below.
Looking at court proceedings in the first instance, on average, the share of procedural violations and violations of due process is low, at 8% (out of those cases where this indicator was relevant).
This result is generally acceptable and positively characterizes the quality of the court’s operation.
However, it should be noted that the deviation in some indicators raises concerns about the effectiveness of the court in the following procedural areas:
Are court materials and documents transferred through the court administrator?
This indicator was used in 60 court hearings in the first instance out of 72, the level of violations reached 28%, i.e. in almost a third of court hearings, documents and materials were not handed over through the court administrator.
Why is it important?
First, under the current Criminal Procedural Code standard, a court administrator may be involved, i.e. their participation is not an imperative norm. However, analyzing the functions of the court administrator, we can conclude that they have a special competence and powers connected with maintaining courtroom order. A separate power is ensuring individuals present in the courtroom observe the order.
Thus, a court administrator is a tool of ensuring order, and it is through them that the presiding judge fulfills their duty provided by Article 321, part 2 of the Criminal Procedural Code of Ukraine.
Referring to international experience, it should be noted that the Recommendation of the Committee of Ministers of the Council of Europe № R (86) 12 of 16.09.1986 states that the duties of judges and other court staff should be divided to ensure that judges perform mostly judicial duties, while other staff perform non-judicial functions to facilitate the judge’s judicial work. This approach is embodied in current legislation.
Thus, the recommendation would be to provide court administrators in every courtroom and ensure their participation in the process, which will significantly simplify the court’s work.
Application of measures against persons who resort to direct violations of procedural law.
This indicator was used in 12 court hearings in the first instance out of 72, the level of violations reached 33%, which confirms the previous point on increased engagement of court administrator in the judicial process.
On the one hand, it should be note that the court is sufficiently proactive in preventing the abuse of procedural rights; on the other hand, such a high level of inconsistency in the court’s response can originate from the fact that while the court does have powers to maintain order in the trial, the lack of staff members who should actually ensure this order affects the performance of this function.
One of the cornerstones of criminal proceedings is their speed.
During criminal proceedings, every procedural action or procedural decision must be executed or taken within a reasonable time. Reasonable time is time that is objectively necessary to perform procedural actions and make procedural decisions. Reasonable time cannot exceed the time limits for specific procedural actions or procedural decisions provided by this Code.
Everyone has the right to have the accusation against them heard in court or the criminal proceeding closed, as regulated in Article 28 of the Criminal Procedural Code of Ukraine.
Articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms also provide that anyone arrested or detained in accordance with the provisions of subparagraph (c) of paragraph 1 of this article shall immediately appear before a judge or other official authorized by law to exercise judicial power, and must be provided with a court hearing within a reasonable time or dismissal during the proceedings. Such dismissal may be conditional on guarantees to appear in court (para. 3, Article 5).
Everyone is entitled to fair and public trial of their case within reasonable time by an independent an impartial tribunal as established by the law, which will resolve the dispute concerning their rights and duties of civil nature or establish the validity of any criminal charges against them (para. 1, Article 6).
That is, international and national experience assumes that the status of suspect and accused is burdensome for a person who may directly (in the form of interim measures) or indirectly (in the form of social condemnation, personal experiences, etc.) suffer negative consequences.
It is worth noting that out of 30 postponed hearings, 9 did not take place due to the absence of the defense, 7 due to the absence of the suspect or accused, which is 53% of the total number of postponed hearings.
Only 1 hearing did not take place due to the absence of the prosecution and 2 due to leave or sick leave of the court, which is 10% of the total number of adjourned hearings.
This tendency on the part of the defense and the accused / suspects is mostly unclear and procedurally negative. Indeed, if we analyze the defense’s failure to appear in court, the most frequently cited reason is the engagement of the defense attorney in other courts.
While this reason is significant, we believe it cannot be considered good reason.
Article 17 of the Rules of Bar Ethics stipulates that while accepting an engagement to provide professional (legal) aid, a defense attorney must consider their ability to perform it.
In this case, “ability” also means weighing the time frame for providing legal aid.
Considering the fact that the High Anti-Corruption Court considers criminal cases, and criminal liability is characterized by the highest impact on the person, it would make sense to prioritize the defense of clients in the HACC.
Concluding this section, we should note that Article 27 of the Rules of Bar Ethics stipulates that a defense attorney must pay reasonable attention to every engagement regardless of the fee.
Thus, postponement of court hearings should only take place under “exceptional circumstances,” when a force majeure event occurs, not as part of regular practice.
Looking at the specific trends recorded during monitoring, we can name the following:
- deviations from the standards of procedural ethics;
- need to unify judicial practice in terms of plea agreement;
- deviation from the standards of reasonable suspicion when considering issues of choosing the interim measure.
Deviations from the standards of procedural ethics
During the monitoring, lawyers recorded deviations from the standards of procedural ethics and conduct exhibited by the parties.
One of the components of monitoring is conducting interviews and surveys with the parties to criminal proceedings. As of the moment of writing, information from the National Anti-Corruption Bureau and the Specialized Anti-Corruption Prosecutor’s Office. Based on monitoring findings, this deviation manifests itself in the following ways:
- failure to attend court hearings for reasons that may be considered invalid;
- submission of an unreasonable number of applications and petitions;
- statement of a significant number of court objections;
- provocative behavior of defense attorneys in court.
While the first form has already been considered in the report above, we will dwell on the following concerning the other three.
The standard of conduct of a defense counsel in court is to focus on the fastest and most complete investigation of all circumstances. Scholarly works also identify the following standards of defense attorney conduct and activity: 1) the rule of law; 2) non-governmental nature of defense; 3) independence; 4) self-government; 5) professionalism and competence; 6) confidentiality and legal privilege; 7) ethics and culture of behavior (cultural development of lawyers); 8) non-discrimination in advocacy; 9) specialization; 10) professional liability insurance of lawyers; 11) professional advertising; 12) special status of advocacy and lawyer (in public, private and public spheres); 13) procedural activity of a lawyer; 14) availability of lawyers’ services; 15) qualification and desire for knowledge and development; 16) guarantees of advocacy; 17) disciplinary liability of lawyers.
However, violations of the above standards were recorded during the monitoring. Example:
- In the court hearing of July 10, 2020, the defense counsel obstructed the free listener’s access to the hearing, in particular, threw personal belongings outside the courtroom and made insulting remarks. There was no reaction of the court and the court administrator to this situation, as they were absent in the courtroom at the time of the defense counsel’s actions.
In the same hearing, the defense attorney yelled repeatedly, interrupted judges when he disagreed with them, and while announcing challenges to the court, consciously spoke about irrelevant circumstances; accused the court of restricting his right to defense following remarks about his conduct, resorted to personal remarks about the judges. The presiding judge responded to these actions, in particular, she interrupted the defense counsel, asked to speak on the merits, not to violate the presumption of innocence, not to shout; noted that there were signs of abuse of procedural rights in the actions of the defense counsel; gave counsel another five minutes to file a challenge after a series of violations by counsel.
Finally, the defense counsel left the courtroom during the judges’ stay in the deliberation room, as he had another hearing in the same court, about which he warned the court clerk.
- On August 20, 2020, the defense attorney violated the standards of lawyer’s conduct by allowing himself to make inappropriate statements to the court, for which he received remarks.
- On August 20, 2020, the defense attorney violated the standards of lawyer’s conduct by allowing himself to make inappropriate statements to the court, for which he received admonitions.
- On July 9, 2020, an attempt was made to delay the process by demanding excessive time to get familiar with the case materials.
This list is not exhaustive, but only provided for the purpose of illustrating the abuses by the defense. It should be noted that Article 47 of the Rules of Bar Ethics clearly stipulates that in relations with other participants in the proceedings, the lawyer must: be restrained and appropriate; respond to incorrect actions or statements of these persons in the forms provided by law, in particular in the form of statements, petitions, complaints, etc .; be tactful during the interrogation of defendants, victims, parties to civil proceedings, witnesses, and other persons.
As of now, we have sent a proposal to Ukrainian National Bar Association to organize a methodological meeting on this issue, at the time of the report no response has been received from UNBA.
Thus, the problem of abuse by the defense of their rights and status harms the principle of legality and the rule of law and complicates the administration of justice by the court.
Need to unify judicial practice in terms of plea agreement
As part of its activities and to meet the requirements of paragraph 2 of Part 1 of Art. 32 of the Law of Ukraine “On the Judiciary and the Status of Judges,” which stipulates that one of the powers of the HACC is the analysis of judicial statistics, study and generalization of judicial practice, informing the Supreme Court on the generalization result, the HACC faces the issue of first significant generalizations of judicial practice.
The significance of plea agreements in the practice of criminal cases for corruption offenses is determined by the fact that the conclusion of agreements actually encourages the accused to procedurally useful behavior, in some cases helps to conduct pre-trial investigation in other criminal proceedings, and so on.
As part of the survey of SAPO employees, we identified a problematic issue regarding the conduct of such a generalization, namely – the generalization of case law in the field of concluding plea agreements.
We have identified a special focus area for work as part of the project — analysis of HACC case law in the context of plea bargains.
The SAPO also expressed readiness to carry out a number of methodological measures together with the HACC, during which the primary methodological approaches to plea bargains will be identified.
Deviation from the standards of reasonable suspicion when considering issues of choosing the interim measure
As part of interim measures monitoring, it was identified that the prosecution does not always sufficiently underpin risks affecting the choice of the interim measure.
The current CPC provides for the following risks:
- [Regarding the concealment of a person from the authorities: such data as the purchase of travel documents, deregistration, sudden dismissal, sale of property, etc . may attest to this;]
This indicator was used in 19 court hearings in the first instance, the level of violations reached 84%.
- [Regarding the destruction of evidence: attempts to steal, destroy, falsify physical evidence and documents; influence on specialists and experts, etc .;]
This indicator was used in 19 court hearings in the first instance, the level of violations reached 68%.
- [Regarding the commission of another criminal offense: this may be evidenced by: information obtained as a result of investigative and covert investigative actions on the commission of a criminal activity, preparation for a criminal offense, acquisition of items for criminal activity), the presence of previous convictions, connections with high-risk individuals, receipt of statements and notifications to law enforcement agencies that a person is preparing for a new criminal offense.]
This indicator was used in 16 court hearings in the first instance, the level of violations reached 69%.
- [Regarding the influence on witnesses: threats, bribery, persuasion of witnesses and victims, inclining them to give false testimony;]
This indicator was used in 22 court hearings in the first instance, the level of violations reached 55%.
- [Regarding obstruction of the investigation: any actual actions of the suspect that may affect the provision of a prompt, complete and impartial investigation and trial;]
This indicator was used in 22 court hearings in the first instance, the level of violations reached 50%.
Analyzing this figures, we can conclude that the prosecution does not provide sufficient justification of the aforementioned risks.
Paragraph 175 of the Judgment of the European Court of Human Rights in the case of Nechiporuk and Yonkalo v. Ukraine (Application no. 42310/04) of 21 July 2011 states that the term “reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offense.” (see the judgment in the case Fox, Campbell and Hartley v. the United Kingdom of August 30, 1990, para. 32, Series A, N 182). The purpose of detention for questioning is to facilitate the investigation of a crime by confirming or disproving the suspicions which gave rise to the detention (see Murray v. The United Kingdom, judgment of 28 October 1994, § 55, Series A, N 300-A). However, the requirement that the suspicion be based on reasonable grounds is a significant part of the guarantee against arbitrary detention and holding in custody. Moreover, in the absence of reasonable suspicion, a person may not under any circumstances be detained or held in custody in order to compel them to confess to a crime, to testify against others or to obtain from them facts or information which may give rise to reasonable suspicion (see judgment in Cebotari v. Moldova, N. 35615/06, para. 48, of November 13, 2007).
That is, in this case, it is considered appropriate for the free observes who carried out the monitoring to provide their own assessment of the validity and persuasiveness of the arguments of the prosecution.
Given the above, the approaches to proving risks stipulated by the CPC by the prosecution should be unified and better substantiated.
Based on the above, we offer the following interim recommendations:
To: The HACC:
Raise the issue of increasing the staff of court administrators with public agencies responsible for staffing the court.
To: The HACC:
Develop methodological principles for unification of practices to combat abuse of the law and procedural offenses.
Conduct an audit of lawyers’ compliance with the principles of professional ethics and adherence to the principles of procedural conduct.
Develop a system for monitoring and rectifying the instances of improper procedural conduct of defense attorneys in judicial proceedings.
To: The SAPO
Unify practices and measures for substantiation of risks considered in selection of interim measures.
The analysis has been prepared with the support of the International Narcotics and Law Enforcement Affairs department of the US Embassy in Ukraine. The views expressed herein are the sole responsibility of Transparency International Ukraine and do not necessarily reflect the official stance of the US Embassy.