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Lawyer’s consultations Kyiv. Opinion about criminal proceedings in absentia. The issue of criminal proceedings in absentia appeared in the Criminal Procedure Code from 07.10.2014 No. 1689-VII, it deals with the inevitability of punishment for certain types of crimes contrary to the foundations of national security, public security and corruption crimes. The main point in this legislative novel is the right to carry out pre-trial investigation of crimes, to refer criminal cases to court and to consider cases in court without the direct participation of the accused in these processes.
This law helps in cases where a person, as stated in Art. 2 of the Code of Criminal Procedure of Ukraine are not implemented due to evasion from arriving at the authorities before a judicial investigation or trial, which eliminates the circumstances of her criminal prosecution and, as a result, the violation of the method of the principles of criminal proceedings on the inevitability of criminal liability, the rule of law, equality before the law and the court and others .
Chairman of the Supreme Court of Ukraine, Academician of the Ukrainian Academy of Sciences V.T. Malyarenko, in my opinion, correctly and objectively stated that many criminal cases against accused or defendants who have disappeared are constantly closed due to the expiration of the statute of limitations, that is, accused and defendants in Ukraine are increasingly using a gap in the law and the opportunity to avoid criminal liability for committed crime.
Victims of crime suffer for years, if not their whole lives, from the fact that the perpetrator who caused them trouble has not been brought to justice. That is, the right guaranteed by the Constitution of Ukraine to justice, to the protection of their life, health, property, honor and dignity remains just a declaration, a promise, and in fact, unfortunately, a mockery. The accused, who is hiding from the pre-trial investigation authorities and the court on the territory of a foreign state, becomes inaccessible for the application of criminal liability to her if she cannot be extradited for criminal prosecution on the territory of Ukraine, or if the foreign state on whose territory such a person is hiding, refuses to prosecute him in the framework of international cooperation.
The European Convention for the Protection of Human Rights Paragraph 3 of Article 6 of this Convention states that any person suspected of having committed a criminal offense has the following rights: to be informed immediately and in detailin a language that he understands about the nature of the accusation; have sufficient time to prepare their defense; defend himself in person, or through an elected or appointed attorney; question witnesses for the prosecution and have the right to call and question witnesses for the defence. So the experience of using the law that has been established in our country is not considered in European countries.
So in accordance with Part 1 of Art. 381 of the Code of Criminal Procedure of Ukraine, the court, at the request of the prosecutor or investigator agreed with the prosecutor, has the right to consider the indictment of a criminal offense without conducting a trial in a court session in the absence of participants in the trial, if the accused, who was represented by counsel, unquestioningly admitted his guilt, does not dispute the established pre-trial investigation of the circumstances and agrees with the consideration of the indictment in its absence, and the victim does not object to such consideration. However, the use of trial in absentia in simplified criminal proceedings regarding criminal offenses does not essentially solve the above-mentioned problematic issues of criminal proceedings.
Therefore, in conditions where a person intends in any way to avoid serving her with a decision or ruling on conducting criminal proceedings in absentia, or she cannot be extradited for criminal prosecution on the territory of Ukraine, or if a foreign state on whose territory such a person is hiding refuses its criminal prosecution within the framework of international cooperation, it is virtually impossible to bring her to criminal responsibility by applying the appropriate procedural form of criminal proceedings.
But in accordance with the wording of Part 2 of Art. 523-1 of the Code of Criminal Procedure of Ukraine, the decision to conduct criminal proceedings in absentia is made by the investigator in agreement with the prosecutor during the pre-trial investigation or by the court during the trial. Thus, I can state the fact that at the stage before the judicial investigation there is a violation of one of the key principles of criminal proceedings – competitiveness, since the decision to initiate the investigated procedural form of criminal proceedings is taken by one of the parties to the criminal proceedings – the prosecution, which puts the parties to the criminal process in an unequal procedural position, and also provides certain privileges to the prosecution, in comparison with one hundredrony of protection.
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