IMPLEMENTATION
OF THE CRIMINAL PROCEDURE CODE
IN COURTS MONITORING RESULTS SUMMARY
The publication presents the results of monitoring the application of the Criminal Procedure Code of Ukraine in Kyiv courts. The monitoring was conducted by the Secretariat of the Ukrainian Parliament Commissioner for Human Rights and the Institute of Applied Humanitarian Research from 5 July 2014 till 15 February 2015 with the support of the Democratization and Human Rights Programme in Ukraine, implemented by the United Nations Development Programme in Ukraine and funded by the Ministry of Foreign Affairs of Denmark, Council of Europe’s Support for the Criminal Justice Reform in Ukraine Project, funded by the Government of Denmark, as well as the Criminal Justice Reform and Anti-Corruption Program in Ukraine, the Office of Overseas Prosecutorial Development Assistance and Training (OPDAT) of United States Department of Justice founded by Bureau of International Narcotics and Law Enforcement Affairs, US Department of State. The opinions, conclusions or recommendations are those of the authors and compilers and do not necessarily reflect the views of the Ministry of Foreign Affairs of Denmark, United Nations Development Programme or other UN agencies, Council of Europe and the United States Department of Justice.
4
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
CONTENTS OBJECTIVE AND METHODOLOGY OF MONITORING..................................................................................... 4 KEY MONITORING FINDINGS AND CONCLUSIONS ....................................................................................... 6 ISSUES RELATED TO THE OPERATION OF THE COURT AND ITS STAFF ........................................................................ 6 NON-COMPLIANCE WITH THE CODE OF JUDICIAL ETHICS ............................................................................................. 7 APPLICATION OF THE CPC BY JUDGES .................................................................................................................................... 8 APPLICATION OF THE CPC DURING THE COURT TRIAL BY OTHER PARTICIPANTS OF CRIMINAL PROCEEDINGS ................................................................................................................................................................................... 9
MONITORING RESULTS SUMMARY
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
OBJECTIVE AND METHODOLOGY OF MONITORING Approval of the Criminal Procedure Code (hereinafter referred to as CPC) is one of the most important steps in reforming the criminal justice system in Ukraine which ensures the closest compliance possible of the criminal procedure regulations with international human rights standards. However, since the CPC came into force in November 2012, an important issue has arisen: does the CPC incorporate a sufficient number of mechanisms to avoid and prevent the violation of rights and freedoms of any participant in criminal proceedings? In this regard, at the beginning of 2014, the Ukrainian Parliament Commissioner for Human Rights initiated a project entitled Monitoring the Implementation of the New Criminal Procedure Code of Ukraine. Monitoring was conducted to determine the actual state of implementing the CPC regulations by the judges and other participants of court proceedings, provide a summary of relevant information, identify systemic violations, and prepare recommendations based on the research findings. Monitoring of court proceedings incorporated the use of an observational method aimed at obtaining data by trained researchers (observers) commis-
4
sioned to record certain facts during the court hearing (behaviour of trial participants, other circumstances thereof, etc.) guided by a custom-designed questionnaire. Before the launch of monitoring, observers underwent a relevant training session. The organizers selected a group of 28 observers with a law degree, professional experience and high motivation to take part in civil monitoring activities. Monitoring was carried out in 10 district courts of Kyiv and the Appeals Court of Kyiv from 5 July 2014 till 15 February 2015. A total of 1,628 observations (court visits) were conducted. However, materials of 1,288 observations were used for the analysis. It is explained by the widespread adjournment of court hearings or inability of the observers to visit the court hearing for one reason or another, or cancelation of the latter. Monitoring was conducted as a general monitoring (as opposed to thematic or special monitoring), i.e. it encompassed the criminal proceeding stages implied by the CPC and related to the court the trial in courts of the first instance and the appeals court. At the same time, the monitoring left out judicial proceedings which were closed in accordance with a court decision.
MONITORING RESULTS SUMMARY
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
THE SUBJECT OF MONITORING IN KYIV COURTS WAS THE FOLLOWING TYPES OF PROCEEDINGS court hearing by the investigating judge;
court hearing based on settlement agreements;
appeal hearing against the investigating judge’s decision;
court hearing on the merits;
preparatory proceedings;
appeal hearing against the trial court’s verdicts and decisions
TYPES OF PROCEEDINGS WHICH WERE SUBJECT TO MONITORING
210
138 123 195
court hearing by the investigating judge appeal hearing against the investigating judge’s decision
544
preparatory proceedings
MONITORING RESULTS SUMMARY
78
court hearing based on settlement agreements court hearing on the merits appeal hearing against the trial court’s verdicts and decisions
5
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
KEY MONITORING FINDINGS AND CONCLUSIONS ISSUES RELATED TO THE OPERATION OF THE COURT AND ITS STAFF During monitoring, observers recorded a range of drawbacks related to organizing the work of the court staff, and organizing and planning court hearings by the judges. These drawbacks include the following. INCREASED CONTROL OVER THE COURTHOUSE ACCESS The observers gained unrestricted access to the of visits to the district courthouses in courts and in of visits to the Appeals Court in Kyiv.
50% 20%
In the rest of the cases, the observers were requested their IDs by court police officers to enter their data into a special visitors journal; in 10% of visits, the observers had to provide reasons for their need to access the court hearing. Thus, justice accessibility for everyone, which includes, particularly, unrestricted access to courthouses, remains somewhat declarative in reality.
6
IMPROPER NOTICE OF THE PUBLIC ON THE COURT WEBSITE AND INFORMATION STANDS WITHIN THE COURTHOUSE OF THE DATE, TIME, AND PLACE OF COURT HEARINGS
26%
In of cases, information on stands in the courthouse contained serious inaccuracies in dates, time, or place of the court hearing. Often, discrepancies between the given and real information on the time and place of the court hearing were absolute.
74%
of information placed on websites was incorrect. Thus, organization of the work of the court staff is obviously improper regarding provision of the relevant information.
MONITORING RESULTS SUMMARY
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
LACK OF ACCESS TO THE COURT HEARING
DELAY OR ADJOURNMENT OF THE COURT HEARING
Judges and court officers refused to allow observers to attend open court hearings of the investigating judge in of instances, preparatory hearings – in of instances, court hearings on the merits – in of instances, and appeal hearings – in of instances.
On the average, the court hearing was delayed for one hour in of cases, and for 20 minutes in another of cases. Cases when the court hearing began with more than one hour delay were also common.
82% 55%
56% 55%
Court hearings by the investigating judge proved to be the most secret: one could attend them "mostly by chance" or "despite fierce resistance of judges and their assistants". Moreover, attention is drawn to the cases when judges ban recording of the court hearing by attendees, particularly with the use of cell phones, which, in its turn, violates Article 27 Clause 6 of the CPC. Thus, there is a significant violation of publicity and transparency of court proceedings as one of the main rudiments of criminal proceedings.
7 MONITORING
RESULTS SUMMARY
30% 30%
Observers named such reasons for untimely court hearings as poor planning and organization of judges’ work (their participation in other court hearings; unpreparedness to hear the case), late arrival of participants of criminal proceedings, delayed arrival of suspects (defendants) detained at the Kyiv Pretrial Detention Center.
NON-COMPLIANCE WITH THE CODE OF JUDICIAL ETHICS Observers recorded common cases of non-compliance of judges with the code of judicial ethics, particularly non-verbal communication with the audience, using cell phones and reading periodicals during the court hearing, inappropriate appearance, and improper attitude to participants of the hearing.
7
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
APPLICATION OF THE CPC BY JUDGES During court hearings, observers noticed that judges of the first instance and appeals courts quite often violated certain CPC regulations, demonstrated bias and partiality. During monitoring, the following instances were recorded: During the court hearing, nobody was informed about full recording of the court hearing, or about the terms thereof (in 25% of cases), thus violating Article 343 of the CPC
Investigating judges allow consideration of appeals against actions of the investigator or the prosecutor in the absence of the applicant, violating Article 303 of the CPC.
In about 65% of cases, judges just read out from the handbook of procedural rights and obligations and do not ask participants of the court hearing if they need the latter to be explained to them; they do not ask suspects (defendants) if they understand the rights and obligations, do not explain the latter to them, do not ask defendants if they understand the charges (violating the regulations of Articles 345, 347, 348 of the CPC).
Considering the issue of detention, in 51% of cases courts assessed the degree of risks identified by the prosecutor, qualifying for a person's detention, only on the basis of the prosecutor's opinion and without any other evidence.
Investigating judges rarely apply Article 206 of the CPC, defining the general obligations of the judge regarding human rights protection. In 90% of cases of a persons' detention without the decree of the investigating judge, investigating judges and Kyiv Appeals Court do not consider the issue of the period of arrival of the detainee to the court and the time of actual detention of the person. Hence, they do not consider the issue of possible violation of terms provided for by the procedure law for the investigating judge to pass a judgment on detention.
8
In 50% of observations, the appeals court granted applications of the parties on consideration of evidence, which proves that the investigating judges rather often unreasonably dismiss the said applications. There were common cases when the court, in violation of Article 314 of the CPC, conducted a preparatory hearing without the presence of participants of criminal proceedings, whose presence, according to the CPC, is mandatory. Only in 20% of cases, the court fully complied with the requirements of Article 474 of the CPC during consideration of agreements of admission of guilt and conciliation agreements, i.e. asked the defendant whether he or she understood that he or she was entitled to a fair court hearing with the use of all procedure rights under the CPC; whether he or
MONITORING RESULTS SUMMARY
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
she understood the consequences of conclusion of the agreement, nature of the charges and type of punishment to be used if the court approved such an agreement. Only in 54% of cases, the court enquired if the victim understood the consequences of conclusion and approval of the conciliation agreement. Almost in half of the cases (48%), the court at the beginning of the hearing did not pass a decree on the volume of evidence to be considered and the procedure for consideration thereof, which proves violation of the provisions of Article 349 Part 2 of the CPC by the court. The appeals court in more than 60% of the observed cases granted the application of the defendant on consideration of new evidence, which proves the digression of the local courts from the rule of objectiveness and impartiality in unreasonable dismissal of such applications, which constitutes a violation of the right of the defense to present evidence and prove its position to the court. During the announcement of the introductory and regulatory clause of the judgment, the judges do not comply with the requirements of Article 376 of the CPC on notifying the participants of the court hearing and mentioning the date of the announcement of the full text of the judgment therein, which can eventually impact the exercise of the right for protection of the interested person.
9 MONITORING
RESULTS SUMMARY
Upon announcement of the verdict the judges did not always explain to the defendant his or her right to consider the minutes of the court hearing, the right to provide written remarks, which is a violation of Article 376 of the CPC. The most frequent grounds for reversal or amendment of the trial court judgment was the presence of significant violations of the procedural regulations (in more than 40% of cases) and incomplete court trial (25% of cases). Almost in half of the cases, during the announcement of the decisions of the appeals court on refusal to grant the appeal petition of the defense, the court did not allow the attorneys to rebut the arguments, which is a violation of the requirements of Article 419 of the CPC.
APPLICATION OF THE CPC DURING THE COURT TRIAL BY OTHER PARTICIPANTS OF CRIMINAL PROCEEDINGS During the court trial, the prosecutors and, to a greater extent, the attorneys were rather passive in fulfillment of their professional duties, which obviously made an impact on the duration, completeness, and comprehension of the trial, particularly, compliance with the rights and liberties of the detainees.
9
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
The following instances were recorded: In 80% of the cases, during the preliminary hearing, none of participants of criminal proceedings raised an issue of continuation, amendment, or reversal of the preventive measure chosen for the defendant in the court. This can evidence improper fulfillment of duties by the prosecutor, non-exercise of procedural rights by the attorney, and absence of court control of the grounds for detention. Adjournment of the preparatory hearing due to non-attendance by attorneys was evidenced in 32% of cases, the court hearing in 9.8% of cases, and due to non-attendance of the prosecutor in 7.2% of cases, which proves the improper attitude of the parties to their procedural liabilities and protraction of proceedings. Delay in arrival of the suspects (defendants) detained at the Kyiv Pretrial Detention Center is one of the reasons for untimely commencement of the court hearing.
Passivity of the defense is obvious, particularly regarding the use of the CPC provision on raising the issue of improper evidence provided by the prosecution in court. In some cases, the court had to remind the parties of their obligation to prove their position and rebut the position of the opposite party. Prosecutors mostly explain the choice of detention or prolongation of detention by the risk of the suspect's fleeing from pretrial investigation bodies or the court and the gravity of the offence, not providing specific facts and not relying on evidence proving the actual possibility of the risk. In 43% of cases, the court held a decision on returning the indictment to the prosecutor due to discrepancies, which proves that the prosecutors do not comply with the requirements of the CPC for execution of an indictment. In particular, situations were common when during the court hearing it was determined that the indictment had been returned by the court several times, and each time, the prosecutor had only partly eliminated the discrepancies which had been determined by the court.
Thus, this monitoring did not reveal any problems to be solved by amending the CPC. Nevertheless, the monitoring findings showed that judges and the court administration do not always ensure compliance with the CPC regulations, violating, in particular, the grounds for publicity of court proceedings, the right to a defense, and rule of objectivity and impartiality. On the other hand, the defense and prosecution do not implement all the procedure opportunities provided to them by the CPC in the full measure to secure complete and comprehensive criminal cases consideration by the court.
10
MONITORING RESULTS SUMMARY
IMPLEMENTATION OF THE CRIMINAL PROCEDURE CODE IN COURTS
KEY MONITORING FINDINGS ISSUES RELATED TO THE OPERATION OF THE COURT AND ITS STAFF
?
?
Improper notice of the public on the court website and information stands within the courthouse of the date, time, and place of court hearings
Increased control over the courthouse access
? Lack of access to the court hearing
Delay or adjournment of the court hearing
NON-COMPLIANCE WITH THE CODE OF JUDICIAL ETHICS
.?.!!?.
non-verbal communication with the audience
using phones and reading periodicals
inappropriate appearance
improper attitude to participants of the hearing
APPLICATION OF THE CPC DURING THE COURT TRIAL. PROBLEMATIC AREAS Using a preventive measure in the form of detention
Examination of applications on consideration of evidence
11MONITORING
RESULTS SUMMARY
Preparatory hearing
Defenders' and prosecutors' failure to appear in court
Explaining to defendant his/her rights
Passivity of defenders
Reasoning of judicial decisions
Discrepancies in indictments of prosecutor
11
United Nations Development Programme in Ukraine 1 Klovsky Uzviz Kyiv, Ukraine Tel.: +38 (044) 253-93-63 Fax: +38 (044) 253-26-07 www.ua.undp.org