An important component of the defense at the pre-trial investigation in accordance with Art. 20 of the Code of Criminal Procedure may be the submission of explanations for suspicion. Usually lawyers do not use this opportunity and there are serious reasons for this. Submission of such explanations stimulates the prosecution to take active actions and counterbalance the objections presented by the defense. The prosecution has an opportunity to see the defense strategy and prepare for its rebuttal. There are also tactical opportunities to counter the defenders.
About the explanation for the suspicion
Example. One of the participants in the case against T., who declared gas from Russia, was constantly summoned as a witness from Dnipropetrovsk to Kyiv and conducted boring and identical in content interrogations, which apparently did not provide any benefit to the investigation. But the requirement to constantly come to Kyiv and give evidence on the same questions hung over him with the sword of Damocles and psychologically pressured the witness. As well as the constant threat of possible arrest, which the investigators constantly reminded.
The large-scale investigation (121 investigators) tried to do everything scientifically: they consulted with psychiatrists, calculated the days when a person had the lowest level of psychological activity (the corresponding phase of the cycle was at the lowest level), used the well-known method of "good" and "bad" investigators. All this exhausted the witness and led him to the Stockholm syndrome.
In fact, the investigation had its own problems. They seized several thousand volumes of various documents, but did not know where to begin. Finally, the witness was told: you claim that you are innocent of anything. Pick up the documents (5-6 volumes) that prove your innocence, and we will give you peace of mind. The witness did so. Brought five volumes of materials, which contained the addresses of the accounts of the banks of the island of Nauru, the English banks with which the transactions were carried out, etc.
The witness was arrested on the same day. He was charged and until he was released, he spent a whole year in the pre-trial detention center. These five volumes, like a searchlight, lit the way for the pre-trial investigation, that is, they answered the question of what to do and where to look.
Inquiries flew to the banks, interrogations of future defendants began, discrediting of people connected to the company began on television, and arrests followed.
Therefore, of course, there is a grain of rationality in the position of lawyers who do not submit an explanation for suspicion in accordance with Art. 20 of the Criminal Procedure Code in order not to arm the investigation with facts.
However, in tactical combat, such explanations can be used. But at the same time, one should act carefully, using timing and not giving the prosecution the opportunity to refute the defense positions and obtain additional information necessary for the investigation. Although sometimes even timing does not help, if the investigation has an incriminating bias.
An example of such an accusative bias is the case of F.
In the case of F. (who was a judge of one of the courts of Transcarpathia), the defense attorney found out the existence of an impeccable alibi of the accused, which could be confirmed by 18 people (mostly employees of the police, prosecutor's office, and tax service). The defense attorney warned the client that it is advisable to provide an alibi at the pre-trial investigation, as the police, prosecutor's office and tax service employees are dependent people and may succumb to the pressure of the investigation.
In the court session, when an alibi was declared, the police witnesses were put under pressure and they avoided appearing in court. However, six men confirmed the alibi of F.
Then the prosecutor asked for a break in court sessions and the next time, almost without any evidence, moved the date of the crime to another day. The court quickly agreed with this and passed the sentence, going beyond the limits of the sanction (from 7 to 12 years). F. was sentenced to three years suspended for one year. Appeals to the Supreme Court did not help. In this case, it was not a trial, but an execution. And, of course, if it is recognized that the crime was proven, then there were no sufficient grounds for applying such a mild punishment.
The prosecution often uses the mass media to discredit the suspect and emphasizes his refusal to testify during interrogations, which is the suspect's right. In such cases, it is possible to emphasize in the explanations the suspicion of violations of the suspect's rights already admitted by the prosecution, which cannot be corrected and used, in particular, in the public space.
For example, such a violation is the use of the suspect's name, and non-fulfillment of Art. 296 of the Civil Code, which prohibits such actions to be taken before the sentence enters into force. After all, the use of the suspect's name can cause irreparable damage to the reputation of the suspect or the accused person, which will be difficult to restore in the event of the closing of the criminal proceedings or the adoption of an acquittal by the court.
References to Art. 296 of the Civil Code can be accompanied by filing lawsuits in court for violation of the constitutional right to use the name, as well as an appeal to the ECHR as soon as possible with a complaint about the application of a preventive measure, where it can be substantiated, including, and a reference to the indication of future sentences from the political leadership, classifying them as interference with justice and violations of the Convention on the Protection of Human Rights and Fundamental Freedoms.
It is possible to recall the Decision of the ECtHR dated 07.25.2002. "Sovtransavto-Holding v. Ukraine", where it is stated: "80. The court can ascertain numerous acts of interference in the judicial process by Ukrainian authorities of the highest level.
Whatever the motives put forward by the Government to justify such acts of interference, the Court considers that such acts, taking into account their content and the form in which they were carried out (paragraphs 18, 20 and 24), are in themselves incompatible with the concept of "an independent and impartial court » in the sense of Article 6, Paragraph 1 of the Convention. The task of lawyers at the pre-trial investigation is to collect such information (if it exists), remembering that the ECHR more widely uses certain facts as evidence, unlike the CPC.
In explanations of suspicion in accordance with Art. 20 of the Criminal Procedure Code, it is also possible to submit a detailed critical legal analysis of the suspicion, which points to the fallacy and contrivance of this procedural document and the violation of the procedure of notification of suspicion. In the same place, it is possible to point to the politicization of the case, referring to the interviews of high-ranking officials (for example, the statement that adventures and sentences await the suspect). These statements can be interpreted as a violation of the principle of presumption of innocence. Such statements can justify the existence of an accusatory bias in the pre-trial investigation. The justification of the incriminating bias can also be confirmed by the behavior of the investigators, their ignoring of the appeals of the defense, the failure to consider motions and the decisions of the investigating judges in accordance with Art. 220 of the CPC of Ukraine.
As a rule, the pre-trial investigation body puts forward only one version of the accusation and collects evidence to confirm this pre-selected single version. At the same time, defense arguments regarding the person's innocence are rejected and not taken into account. These circumstances should be emphasized and the investigation should be burdened with requests to carry out certain investigative actions.
Inactivity of investigators and prosecutors should be appealed to investigative judges in accordance with Article 220 of the CCP. The defense must actively use its right to review the materials of the pre-trial investigation (Article 221 of the Criminal Procedure Code) and appeal the refusal to provide them in a timely manner.
At the same time, the lawyer prepares an appeal against the reported suspicion in accordance with clause 10, part 1 of Article 303 of the Criminal Procedure Code, and also appeals against the refusal of a request to conduct certain investigative actions.
In the explanations for the suspicion, it is possible to criticize the speeches of the Prosecutor General, other officials who gave interviews, revealing the secret of the investigation or committed clear violations of the presumption of innocence, as Prosecutor General Venediktova did: "…I suggest that the fifth president of Ukraine demonstrate respect to his fellow citizens by his own example to the law, to the established law enforcement agencies and reformed courts, and to exercise the right to defense in the manner prescribed by law and to prove one's innocence in court."
Such a position is not only a violation of the presumption of innocence (Article 62 of the Constitution of Ukraine, Clause 2 of Article 6 of the "Convention on the Protection of Human Rights and Fundamental Freedoms" and Article 17 of the Criminal Procedure Code), it is also a secret desire of the prosecuting authorities to "attribute" guilt, and you, the defendant and his lawyer, proved your innocence to the court. As we can see, the traditions of previous generations (the odious theory of attributing the guilt of Prosecutor General Vyshinskyi) seem to have terror in the minds of the living.
In the explanations, the principle of free evaluation of evidence can be criticized, which consists, in particular, in the fact that the investigator, prosecutor and investigating judge evaluate the evidence given in the suspicion during the pre-trial investigation according to their inner conviction, not limited by any formal instructions. At the same time, ignoring the comprehensiveness, completeness and objectivity of the evaluation of evidence from the position of presumption of innocence and a one-sided approach testify to the violation of Art. 94 of the CPC of Ukraine.
It is also possible to use the legal positions of experts and the legal positions of the Supreme Court, which can be interpreted in favor of the suspect, as well as point to the failure to take into account the circumstances that exonerate the suspect (Part 2, Article 9 of the Criminal Procedure Code).
Example. In the case in which suspicion was reported under Part 5 of Art. 191 of the Criminal Code only on the grounds that the company paid the gas supply late, the Supreme Court's position was emphasized in the explanation: "In this case, there is no criminal offense at all. The only fact that is available in the case is the late payment of the cost of gas under the contractual obligation. However, this fact is not evidence of the commission of the crime provided for in Art. 191 part 5 of the Criminal Code, which the Supreme Court repeatedly pointed out.
In the Decision "Nechiporuk and Yonkalo v. Ukraine" (para. 175), the ECtHR once again reiterated that the term "reasonable suspicion means that there are facts or information that can convince an objective observer that the person in question may have committed an offense . At the same time, the interpretation of the concept of "reasonableness" will depend on all the circumstances of the case" (Fox, Campbell and Hartley v. the United Kingdom (Fox, Campbell and Hartley v. the United Kingdom), § 32)]. In this case, such a fact does not exist.
Of course, the investigation ignored this objection of the defense, which gives grounds for the conclusion of bias and incriminating bias.
Such explanations can also be used in public speeches and interviews of lawyers. At the same time, the suspect can refuse to give an explanation and take a position of silence (this is his right, Article 42 of the Criminal Procedure Code) and indicate that he has already fully explained his position in the explanations for the suspicion, which the investigation does not take into account, contrary to the requirements of Article 9 of the CCP.
It happens that investigators collect information related to the private life of the interrogated, which is a violation of Article 15 of the Criminal Procedure Code. If such information becomes known to the defense, it can also be used in explanations of the suspicion and relevant requests to the procedural prosecutor.
Therefore, the statement of explanations for the suspicion is submitted in such an aspect that records the violations of the process admitted by the pre-trial investigation and limitations of the suspect's rights and in a form that excludes the possibility of using these explanations against the suspect. This martyrology of violations of the suspect's rights by the pre-trial investigation is in the future the basis for a thorough elaboration of explanations for the indictment.
In this way, the suspect and his defense counsel avoid the premature disclosure of defense data, which should be used only at the court hearing, and at the same time ensure a certain level of competitiveness even at the pre-trial investigation of the case and provide legal countermeasures to the prosecution within the limits of the procedural law.
Brief summary: During the defense at the pre-trial investigation, the lawyer can choose an active position, burden the investigation with motions, and in case of their ignoring, challenge them to the investigating judge. As a protective resource, you can use the provision of Art. 20 of the Code of Criminal Procedure the right to submit explanations for the suspicion, and later to challenge it. Explanations are presented in such a way as to avoid premature disclosure of the strategy and tactics of the defense and the facts that the defense intends to use only during the trial.