Cover Story (#12 December 2015)

Keeping a Cool Head

The criminal justice system in Ukraine has to be profoundly transformed as the policy of harmonization with the EU is at the heart of every reform in the country. Many politically sensitive questions that we asked our speakers Vitaliy Serdyuk and Olga Prosyanyuk, partners of AVER LEX attorneys at law, are considered with a precise legal point of view. The conversation probably proved that the first rule of a defense attorney is to keep a cool head in this sophisticated area of criminal justice.

UJBL: What difficulties exist in the defense of criminal justice clients by you as criminal defense lawyers? Why do they occur?

Vitaliy Serdyuk: In our previous interviews, we mentioned that the work of defense lawyers in criminal proceedings has changed considerably due to the rise of the publicity level of the law-enforcement authorities of Ukraine.

Unfortunately, in the majority of cases public opinion about the high efficiency of the activity of the law-enforcement system is based not on their actual achievements in investigations but on the loud statements of their representatives spread through the mass media (i.e. about great criminal schemes being revealed, illicit money flow being halted or officials being publicly detained).

However, the actual investigation of the above-mentioned circumstances in fact starts after such information has already been spread through briefings, publications and posts in the social networks, etc.

Taking into account the fact that the version of the prosecution and the individuals actually designated as guilty were announced publicly, the further pre-trial investigation is narrowed down to gathering only those materials, which correspond with the announced version. Such version can often be supported with no document at all. So, the defence has to protect their clients against suspicion (accusation) based not on the evidence collected during the investigation but on the publicly announced but groundless version of a persons doubtless guilt.

We also have to note the growing number of violations, and sometimes disregard of the attorneys professional rights and guarantees. Among the most indicative violations made by the law-enforcement authorities we can mention: the failure to recognize the procedural status of an attorney as the defender (representative) of a person, and actual coercion of a person to involve lawyers from the free legal aid center despite this persons desire to be represented by a lawyer of his/her own free choice.

UJBL: The issue of recovering the previous regimes assets, which has caused massive public outcry, is actually deadlocked now. Why did the process slow down?

Olga Prosyanyuk: Taking into account the latest amendments to the current legislation of Ukraine1, assets are funds, property, as well as property and other rights which can be seized or actually seized in criminal proceeding or which were confiscated by a court decision.

It means that while considering what assets should be refunded the first criteria that should be taken into account is whether the asset being analyzed meet the criteria prescribed by the criminal proceeding legislation but not solely the fact that such asset belongs to person, who held certain positions in a state power bodies in the past.

At the same time, now we have only loud statements of the law-enforcement authorities that significant amount of money, which belong to the officials of the previous regime as confirmation of their achievements in the investigation of resonance cases.

To avoid misunderstanding, seizure of assets does not mean depriving a party to the right to property, instead only imposing temporarily restriction of the right to dispose of such property until the moment when the final decision will be issued by the court. On the other hand, the irrevocable withdrawal of the property for reparation of the damages caused by the crime is possible only by the court decision.

At the same time, such decision according to the legislation should be based only on the evidence, which objectively prove, in particular, that the property was acquired by committing a crime. This, in turn, requires the real results of the investigation, which confirm the illegality of the persons action and the damage caused by such actions.

UJBL: The possibility of officials of the previous regime who are suspected of corruption appealing against sanctions as well as being released from distrain for ill-gotten assets is being widely discussed at the moment. How would you comment on this from the point of view of current legislation? Are any amendments to legislation expected to be introduced in the near future?

V. S.: As for international legal sanctions, it is worth mentioning that the possibility of successfully appealing against a sanction is mainly the result of the actions taken by Ukrainian government authorities, particularly by the Prosecutor-Generals Office of Ukraine.

It should be taken into account that international authorities do not always have the possibility to check information mentioned in the application of the government authorities of a particular country.

Having received an application in which the state power authority states the persons involvement in the illegal conversion or the state property by malversation in respect of a gross amount complicity as justification for implementing a restriction on a persons property rights for reparation of the damages caused to the state, the addressee assumes the submitter has enough appropriate evidences of a persons guilt to draw such conclusions. That is why the decision to seize funds or other property is made being based only on the information mentioned in the application.

If a person whose rights were restricted files a complaint or a claim for the annulment of the taken measures reffering that, firstly, information given in the claim (application) of the state authorities does not correnspond the real circumstances; secondly, the fact of illegal origin of funds or in general a persons involvement in any illegal activity has no reasonable proof the competent authority considering the issue can draw the conclusion that the prosecution of the person has a political nature and any measures of restriction toward a person will be unlawful and groundless.

For the reasons mentioned above it will be more accurate to talk about improving the efficiency if the activity of the law-enforcement authorities, fostering their efforts to collect facts which really matter for revealing the objective truth in each of the case.

UJBL: What is your attitude toward the introduction of trial by jury as an instrument of more transparent judicial proceedings?

O. P.: We have mentioned before that the lack of trust in the judicial system is a result of the low quality of the court decisions, which does not meet the requirements of the persons right to a fair trial and to an effective remedy.

Thus, the key issue is the ability trial by jury to adopt a court ruling which meet both the criteria of justice and legal requirements.

But will the public representatives (the jury) be able to objectively and impartially evaluate facts keeping a cool head, provide proper evaluation of the evidence mentioned above and their importance for revealing the truth in the case without professional experience and knowledge, minimize the emotional effect on the final decision? This question refers especially to so-called political cases when the accused person is a current or a former official the position of whose doubtless guilt has already been formed by the prosecution through the media even before the actual investigation has begun.

Thus, introducing trial by jury will result in an increase of the public trust in the judicial system only if the decisions approved by it correspond the objectives of the criminal proceedings: everyone who committed a criminal offence were prosecuted in proportion to his guilt, no one innocent were accused or convicted, and no one were subjected to ungrounded procedural compulsion and that an appropriate legal procedure applied to each party to criminal proceedings .

UJBL:Nowadays all reforms of national legislation provide for harmonization with the EU legislation. What did Ukrainian lawmakers manage to achieve for criminal law? And what, in your opinion, is a far cry from the European practice requiring profound changes?

O. P.: Of course, as Ukrainians chose the pro-European way of development this lead in particular to the need for legal reform to approximate Ukrainian legislation to legislation of the EU. The criminal procedural legislation is not an exception.

While analyzing the agreement-based criminal proceedings implemented by the provision of the new Criminal Procedural Code of Ukraine the role of the attorney (defender) varies significantly depending on the type of agreement.

In my opinion, such provision of current legislation contradicts with European principles, as it restricts the right of the suspect (accused) to defense and professional legal assistance.

Upon the analysis of the experience of European countries, a significant gap in the CPC of Ukraine can be identified. Namely, the absence of a defender in the process of agreement conclusion, which, in fact, violates the rights of both a defendant and a victim, depriving them of the right to legal assistance. Thus, it is a defender or representative of the victim, who can explain the content of the agreement and the legal consequences for each of the party. Thats why the procedural rights of the defender (representative of the victim) should be defined at the stage mentioned above. The circumstances of some cases may also require the participation of other specialists. In my opinion, having eliminated the differences related to the status of the attorney (as a defender or representative of the victim), the legislator will actually meet the requirements of the European principles and standards.

UJBL: Many experts are warning against the criminal liability of legal entities concept as an instrument of solving commercial conflicts and a source of corruption. What do you think about this?

V. S.: On 23 May 2013 the Ukrainian Parliament adopted the Act of Ukraine On Amendments to Certain Legislative Acts of Ukraine regarding Implementation of the Action Plan for the Liberalization of EU Visa Regime for Ukraine concerning the Responsibility of Legal Entities (the Act). It refers to the importance of implementation of the European conventions and recommendations on fighting terrorism and money laundering. Nevertheless, it has no recommendation added to confirm the necessity of amendments proposed by the draft itself. As to conventions, it should be noted that the international acts prescribe the implementation by the countries (participants of conventions) of the liability of legal entities for corruption offenses, financing terrorism and laundering of money obtained from drug trafficking. However, these international legal documents do not require specifically criminal liability of legal entities.

Taking into account the fact that the implemented concept is, putting it mildly, crying out for improvements, contradicts recommendations and conventions taking into account that today the law-enforcement authorities are under the control of the politicians or (and) an oliarchic clan, I tend to agree with the reservations expressed by experts: under current conditions such liability will be used as a measure for achieving justice and prosecution of the guilty, but mostly for as a massacre against dissidents and competitors. I think that the implementation of the institute of the criminal liability of the legal entities will be reasonable only after the legal acts will be reworked significantly.

UJBL: What foreign practices of fighting corruption could be adopted by Ukraine?

O. P.: Of course, in order to achieve significant results, we should adopt the best issues from each country which defeated corruption and create our own unique strategy for solving this problem. I would like to turn your attention to the most vivid examples of some countries.

The Republic of Singapore: establishing the salary of a civil servant at a market level; lowering the level of discretion held by civil servants which results in reduction of the number of permits and signatures on documents.

The Republic of Poland: establishing an authority dealing with the termination of illegal activity in the financial sector and a database for all empowered government institutions which are fighting against the use of illegal sources of income; equipping courtrooms with video cameras and microphones to enable the recording of the process of court sessions and each participants behavior, namely, a judge, a secretary of court sessions (court recorder), a prosecutor, a defender.

The Federal Republic of Germany: creating the Register of Corrupt Companies (a company on this register forfeits the right to fulfill government orders and is a subject of the watchful control of law-enforcement authorities); destruction of material, financial base of criminal groups through confiscation of property and establishing the legal base which enable laundering of criminally obtained money and other property.

The Kingdom of Sweden: high ethical standards for administrators; open access to documents of internal use; an independent and efficient justice system.

The Peoples Republic of China: use of the death penalty for corrupt crimes (the most severe and most efficient approach to win the corruption supported, according to an opinion poll, by one third of Ukrainians).

UJBL: Today one can see forcing of adoption of anti-corruption legislation. Particularly, on 10 November three laws at once were adopted in their second reading and are being prepared for signing by the President, namely, on property distrain, on enhancement of the special seizure concept and on the National Agency of Ukraine on Identification, Investigation and Management of Assets derived from Corruption and other Crimes. How would you comment on the key provisions of these acts? How can it influence the application of CC and CPC of Ukraine?

V. S.: In my opinion, the Act of Ukraine On Amendments to the Criminal Procedural Code of Ukraine regarding Property Distrain Aimed at Elimination of Corruption Risks when Used is premature. The provision of the abovementioned Act give the opportunity for the interested persons to use the controlled and dependent law-enforcement agencies as a mean of unfair competition.

Special attention should be paid to the excessive number of subjects, whose property can be seized, the absence of clearly designated criteria for information about the possession, usage and disposal of the property that should be seized.

Moreover, in my opinion, the provisions about the preliminary seizure under the decision of the Director of the National Anti-corruption Bureau does correspond the requirements of the Constitution of Ukraine (Articles 8, 41), which guarantee protection of the legal rights and interests of citizens. In addition, part 2 of Article 131 CPC of Ukraine prescribe the limited list of measures of ensuring the criminal proceeding, which does not include the preliminary seizure.

The Act of Ukraine On Amendments to the Criminal Code of Ukraine regarding Improvement of Special Seizure Concept Aimed At Elimination of Corruption Risks prescribes the confiscation of a third partys property illegally obtained, in cases provided by part one of Article 961 of CC of Ukraine, free of charge or in exchange for the sum considerably lower than market rates, particularly if the person was or must have been aware of the fact that the ownership transfer has been conducted in order to avoid seizure or special seizure.

Such formulation excludes the opportunity to implement the procedure of special confiscation toward illegally obtained property alienated to a third party, if such party was aware (or should have been aware) that such property is obtained illegally and bought such property in an exchange for the sum at the (or even above) market rate.

It should be noted that the CC of Ukraine specifies that abovementioned data on the third party must be stated in a judicial proceeding based on sufficient evidence, which is an inadmissible provision for CC of Ukraine, which contain the rules of the substantive not a procedural law.

The Act of Ukraine On Amendments to the Criminal Procedural Code of Ukraine as to Fulfillment of EU Recommendations touching Implementation of the Liberalization Action Plan as to Clarifying the Order of Jurisdiction of Pre-trial Investigation carries out the EUs recommendations on the restriction of the powers of the Security Service of Ukraine as for the pre-trial investigation of criminal acts regarding national security and defense related to terrorism, preventing organized crime and fighting it, particularly as to the clear separation of order of jurisdiction of offences among pre-trial investigation authorities. The amendments of the abovementioned Act can be evaluated only positively, bearing in mind the pro-European development of the country.

UJBL: Should any changes in the activity of defense lawyers be expected when the Anti-corruption Bureau and the Prosecutors Office start their work?

V. S.: Yes, we expect changes due to formation of the new body of pre-trial investigation, in which the rights of clients should be presented and defended.

We hope that increasing liability of the officials will result in enhancing the guarantees of the professional activity of attorneys. The complaints against the actions (decisions) or inactivity of the particular official will not be considered by such official himself (herself) or by their chiefs, but by independent and impartial experts of the special body. I hope that such procedure will ensure that the filed complaint will be considered objectively and necessary measures in response will be taken on each of the grounded complaint if there are legitimate reasons for such measures as by now most of such complaints are being left without any attention (regardless of their reasonableness).

1 The Draft Act of Ukraine On the National Agency of Ukraine for Identifying, Tracing and Management of Assets derived from Corruption and other Crimes adopted by the Verkhovna Rada of Ukraine on 10 November 2015. The Draft has been not signed by the President of Ukraine for the moment of the publication.


AVER LEX

Key facts:

    Year of establishment 2012

    Number of lawyers/partners 20/5

    Core practice area

    • Criminal law and process
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