Weekly analysis for 24 – 30 April

Court hearing of criminal proceedings by a single judge

Event

On April 23, the Verkhovna Rada adopted as a whole the Law “On amendments to Article 31 of the Criminal Procedure Code of Ukraine on improving the administration of criminal proceedings” (Law № 3655), which excludes the provision providing mandatory collegial court hearing of criminal proceedings in the first instance of the High Anti-Corruption Court (HACC) and supplements the Code with new requirements for such hearings.

CPLR’s expert assessment 

Article 6 of the European Convention on Human Rights and Article 28 of the Criminal Procedure Code of Ukraine (CPC) guarantee everyone the right to a trial within a reasonable time. According to the CPC, reasonable time are objectively necessary for the performance of procedural actions and the adoption of procedural decisions, Furthermore, reasonable time limits are one of the preconditions for the inevitability of punishment, since by ensuring their compliance, the prosecutor, investigating judge, and court make every effort to minimize the risk of closing the proceedings due to the expiration of the time limits for prosecution.

However, from the beginning of its operation in 2019, the HACC has faced an objective issue in terms of ensuring reasonable time limits for criminal proceedings. For its first instance, part 12 of Article 31 of the CPC of Ukraine provides for special procedure – hearing by panel of three judges. Thus, a separate panel of different judges of this court is formed each time for hearing corruption or corruption related criminal proceedings.

Among other aspects affecting the duration of the trial, the timely hearing of cases was hindered by the need to gather at one time in one place both the prosecution and defense parties, as well as three judges who are also hearing other proceedings and during this time may be in the conference room as part of another panel, or using their right to vacation, etc. Thus, the legal requirement for mandatory collegial court hearing of proceedings in the first instance by the HACC has created additional objective reasons for procedural delays.

According to the general rule provided for in part 3 of Article 31 of the CPC, courts of general jurisdiction hearing criminal proceedings by a single judge. However, in case the criminal offense is punishable by imprisonment for a term exceeding 10 years, the accused (or one of them) may file a motion for hearing such a proceeding by a panel. After the Law № 3655 enters into force, this rule will also apply to HACC judges.

The Law № 3655 also introduces special conditions for hearing of criminal proceedings involving persons who have held or are currently holding certain positions. Thus, another condition for court hearing of criminal proceedings by a panel may be a motion filled by an accused who is:

– the President of Ukraine, whose powers have been terminated;

– Member of the Parliament of Ukraine;

– Prime Minister of Ukraine, member of the Cabinet of Ministers of Ukraine;

– Secretary of the National Security and Defense Council of Ukraine;

– Prosecutor General, Deputy Prosecutor General – Head of the Specialized Anti-Corruption Prosecutor’s Office;

– Head of the Security Service of Ukraine;

– Director of the State Bureau of Investigation;

– Director of the National Anti-Corruption Bureau of Ukraine;

– Head of the National Agency on Corruption Prevention;

– Head of the Antimonopoly Committee of Ukraine;

– Head of the National Bank of Ukraine;

– Head of the Accounting Chamber;

– Head of the State Property Fund of Ukraine;

– Head of the Central Election Commission;

– The Ukrainian Parliament Commissioner for Human Rights;

– Head or a judge of the Constitutional Court of Ukraine;

– Head of the Supreme Court;

– Head of the highest specialized court;

– Head of the High Council of Justice.

It should be emphasized that this rule applies not only to the High Anti-Corruption Court and the proceedings under its jurisdiction but it is general for all courts. Thus, if, for example, a court of general jurisdiction is hearing the issue of bringing an MP to criminal liability for сomitting state treason, the accused person may fill a motion for hearing of such proceeding by a panel of judges rather than by a single judge.

Before the adoption of Law № 3655, some experts expressed fears that it would negatively affect the courts of general jurisdiction and even worsen the state of combating corruption. However, we cannot agree with this vision for a number of reasons.

Firstly, as mentioned above, the HACC currently hearing all criminal proceedings by a panel, regardless of the gravity of the offense and the identity of the accused. Among the “clients” of this court are not only the former Head of the Supreme Court, but also lawyers, members of regional councils, judges, prosecutors, etc. The transition to a court hearing by a single judge will allow the Anti-Corruption Court to consider more proceedings simultaneously and deliver verdicts faster. As a result, less proceedings will be closed due to the expiration of the time limits for prosecution and greater number of corrupt officials whose guilt were proven in court will be fairly punished.

Secondly, the amendments to the CPC affect the courts of general jurisdiction to a small extent. For these courts, the rule of court hearing by a panel of judges at the request of the accused is already existed. If we take into account the personality of the accused, the list of positions provided in Law № 3655 is not extensive as to significantly increase the workload of courts of general jurisdiction.

Moreover, the law does not have retroactive effect and this principle is further enshrined in the final provisions on amendments to Article 31 of the CPC. In other words, the proceedings will be hearing by the courts in the same composition as before the entry into force of the Law № 3655.

The Parliament’s Main Scientific and Expert Department in its opinion regarding the draft law notes that Ukraine is among the “leaders” in terms of the number of applications to the ECHR and the number of judgments recognizing violations of the principle of reasonableness of the terms of court proceedings. Therefore, the amendments proposed by the Law № 3655 are extremely important not only for the effective fight against corruption, but also for Ukraine’s international image and European integration. These amendments strengthen the guarantee of the right to a fair trial within a reasonable time.