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31 July 2017, 23:10

Where to move? Changes in the practice of criminal law

Mykyta Nuralin
Mykyta Nuralin the lawyer of VB PARTNERS, the national expert of the Project of the Bar Association of Ukraine " Effectiveness of Disciplinary Authorities in Court System"

Social, political and economic developments in the country have given new impetus to the practice of white-collar crime in Ukraine.

Changes in market

In recent years many law firms have introduced or strengthened the practice of criminal law or white collar crime. Why legal market suffers from these changes, and why the state contributes thereto?

These changes result from both inter-market and external factors. Since 2014 many companies have chosen the path of niche specialization in this field and rejected others. This is particularly due to the economic crisis, a decrease in budgets for external advisors and  number of M&A projects. All this stimulated the law firms to develop their practices of criminal law.

It is necessary to highlight among the reasons of such actions the fact that after the state regime was changed, first, pressure on business by the prosecution has not decreased. Some specialists even believe that it has significantly increased. If earlier business was pressured mainly through proceedings related to allegedly evading taxes, now all those who "are needed" finance terrorism.

The authorities do not forget about lawyers. All known the cases of numerous searches both in offices of independent lawyers, and in a large bar associations. This is one reason only-  providing legal services and legal aid.

Secondly, customers are tired of corruption and require the quality legal assistance. They concluded that it is much more efficient and cheaper to employ an attorney in order to protect their interests than ever to pay bribes. This fact evidences improvement of society and growing need in professionals.

Start of work of the National Anti-Corruption Bureau of Ukraine also gives hope for combating corruption in Ukraine. Of course, some of human beings do not see the positive in their work. But I do not agree with such an opinion. My guess is that the NABU detectives are real investigating officers, id est, an investigative and analytical work is in first place in their activity, and only afterwards recording all actions.

In my opinion, the work of NABU and Specialized Anticorruption Prosecutor’s Office is currently the best example in the work of law enforcement bodies. Of course, there are also the errors which have been repeatedly emphasized by all who desired. However, I believe that these agencies make a significant contribution to solving such problem as corruption.

Third, the National Bank of Ukraine declared for the past three years more than 90 banks as insolvent. One or more criminal proceedings were initiated in view of almost every bank, which results in the need to protect thebanks’ shareholders and management in criminal process, simultaneously understanding all banking subtleties.

Please note that not only an "internal" work of law enforcement became more intense, but also cooperation at international level became more active. Thus, in recent years Ukraine has sent a record number of requests for search through Interpol channels - about 1,700 of  10,000 Interpol announcements are Ukrainian ones. As a result, the legal market is actively developing a complete line –client protection before the authorities of the International Criminal Police (regarding data access, challenging notices of detection, etc.) and representation in cases of extradition.

All this affected changes on market. However, the practice is not changed by only legal market.

Changes from authorities.

Practice is also changed by the legislator.  So, on March 16, 2017 amendments to the Criminal Procedure Code of Ukraine came into force and effect. Lawmakers (we say lawmakers, butunderstand - General Prosecutor’s Office of Ukraine) have given name to them regarding an improvement of mechanisms aimed at fulfilling the tasks of criminal proceedings. Need in convicting Yanukovych and others was announced as very important objective. However in fact the submitted bill significantly restricted the rights of Ukrainian individuals. Egregious provisions, in particular concerning the extension of pre-trial investigation and detention were excluded due to pressure of public and advocacy.

The adopted law introduced seven subsequent changes:

1. The period of familiarization with the materials of criminal proceedings (after they were opened to the defense) is not included in the investigation period.

Nobody paid attention when preparing and accepting the law, but now with this edition, preventive measures may not be extended at the stage of review, since the validity of preventive measure may be extended only within the period of pre-trial investigation or already in court.

As a result of this change an interesting practice begins now, including as to the release of persons from detention at this stage, because there are no reasons to extend the  period of detention. In other words, the prosecution outbattled itself.

2. The procedure is established in view of calculating the total period when combining the criminal proceedings. There are two types – absorbing and adding the terms, depending on the time of filing and investigation of several proceedings. But the wording is so bad that at the request of law enforcement officials the practice of the presence of "permanent suspect” may arise.

3. New grounds are fixed to issue a wanted notice in view of suspect. If he or she is outside of Ukraine, and fails to appear without good reasons at the investigator’s request, provided he was properly notified thereof, he or she may be announced wanted.

These changes are positive, if they apply in an ideal system. But it is clear that in most cases, despite the gravity of causes of inability to appear before the investigator, the suspected will be announced wanted. 

4. Now pre-trial investigation in a criminal proceeding may be conducted by a mixed way: regarding some suspects – according to general rule, concerning  the others – under the procedure of special (in absentia) pre-trial investigation. 

5. Meanwhile, the period was prolonged as to the possibility to apply the procedure of special pre-trial investigation - until the establishment of the State Bureau of Investigation.

Although the period was extended, but in fact politicians make themselves safe from the possibility to use the procedure for investigation in absentia against them in the future.

6. Some changes have attitude to the Guilt Admission Agreements  Institute. In particular,  possibility was introduced to enter into a guilt admission agreement in view of serious crimes committed by a group of individuals or criminal organizations. The compulsory condition – exposing by the suspected of criminal actions committed by other participants and providing the exposing evidence, not just evidence. This mechanism may not be used only in view of the crime organizer.

7. Probably the only 100% positive change was the introduction of possibilities to enter into guilt admission agreements in the event of damage as caused to the state and other persons simultaneously. Earlier agreements may be entered into, if only public interests were breached or if damage was caused to the victim. When combining, the agreements could not be applied, which resulted in the need to conduct a full pre-trial investigation and proceedings. However, such an agreement could be entered into only with the consent of all victims.

In general, these changes should solve old problems of investigation. However, time will show, whether or not they create new problems for them.

Changes by lawyers.

Currently the protection strategies as used by lawyers in criminal practice have also changed.

Some lawyers decided to use a loud PR  by providing publicity to the cases through the media and Internet. In some cases you need it, when the prosecution distorts the facts and creates a negative attitude to the suspect or accused. However, in others – such a publicity is not required, and is, in my opinion, unnecessary.

Other attorneys decide to use public pressure. As we see in many high-profile cases civic activists are engaged in actions which may be regarded as pressure on the court. And they do not always appear on their own initiative.

However, the lawyers, who use a load loud PR or activists, should not forget to provide clients with really skilled defense. The main thing consists in fact that the report concerning provided legal aid and fee, accordingly, does not consist only of the posts on Facebook and involvement of "support group.”

On the other hand, many old problems may be settled due to changes as to strengthening the lawyers’ rights and guarantees. These changes are already developed and discussed by lawyers for more than a year. We hope that after completing the work aimed at amending the procedural codes, the Council for Judicial Reform will return to these issues. It seems that agreed positions are now formed. In particular, in view of strengthening the lawyers’ rights it should reinforce the right to:

  1. Free access to the premises of court, prosecutors, law enforcement bodies, penal institutions at any time, if client is detained in those premises.
  2. Identified access to any public registers, Uniform Register of Pre-trial Investigation and court automated workflow system. Exception - only state secrets.
  3. Collect evidence by any means and methods not prohibited by law.
  4. Interrogate witnesses with their consent.
  5. Applypermitted technical means without any permit.

However, it is important to strengthen the guarantees of lawyers’ activity, since incompliance therewith causes damage primarily to clients, but not lawyers. So we are now offering as follows:

  1. To provide the Appellate Court with a power to grant permits for measures to ensure the criminal proceedings or investigation relative to lawyers.
  2. To ensure an inability to withdraw at a time of search the materials containing the lawyers’ secret. There are two options. Conclusion on availability or absence of lawyer’s secrets will be made by the council’s representative or a court under a separate procedure.
  3. To prohibit to collect information in any form and in any way as tocontacts, correspondence and other communications between lawyer and client. In case of fixing such contacts - records should be destroyed, and their use will be illegal.

Therefore, to solve some problems as to conducting an appropriate, efficient and quality protection it is necessary to ensure adoption of these rights and guarantees. Each of us should make every effort to achieve positive changes in the practice of criminal law.

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