Interrogation of a witness by an investigating judge in a court session in the manner specified in Art. 225 of the Criminal Procedure Code (CPC), in the absence of the suspect's defense counsel, whose participation was not mandatory (Article 52 of the CPC), but in the presence of the victim and suspects who had a procedural opportunity to ask him questions, is not a violation of the right to defense. This conclusion was reached by the Supreme Court by the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation, after considering case No. 539/379/18 .
Does the questioning of a witness by an investigating judge in the absence of a defense counsel violate the right to defense: the position of the Supreme Court
The circumstances of the case
The three men caught up with the fourth man in the evening. One of the attackers obtained a passport of a citizen of Ukraine and introduced himself as a law enforcement officer. At this time, the other began to check the contents of the pockets of outer clothing in order to search for and seize the victim's property.
After that, the third asked to give him a mobile phone under the pretext of needing to make a phone call. When the victim reached for the phone, he grabbed the phone and kept it for himself. In turn, the victim asked to return his mobile phone, after which two of the attackers hit the man with hands and feet at least nine times in the head and body.
After that, the attackers seized a wristwatch, a gold ring and a mobile phone, causing damage to the victim in the amount of UAH 4,222.94.
According to the verdict of the Lubensk City and District Court of the Poltava Region dated July 4, 2018, the first person was convicted under Part 2 of Art. 187 of the Criminal Code of Ukraine (robbery committed by a group of persons following a prior conspiracy) to a penalty of imprisonment for a term of 7 years and 3 months with confiscation of property;
The second person was convicted under Part 2 of Art. 187 of the Criminal Code of Ukraine with the application of Art. 69 of the Criminal Code of Ukraine to the penalty of imprisonment for a term of 5 years. On the basis of Art. 75 of the Criminal Code of Ukraine is exempted from serving a sentence with a probationary period of 3 years.
By the judgment of the Poltava Court of Appeal dated July 28, 2020, the judgment of the local court regarding the exemption of the second person from serving the sentence was canceled and a new judgment was issued, according to Part 2 of Art. 187 of the Criminal Code of Ukraine is punishable by imprisonment for a term of 5 years with confiscation of part of the property belonging to him. In the other part of the sentence, it was left unchanged.
In the cassation appeals, the defense attorney requested that the judgment and decision of the appeals court be annulled and a new trial be ordered in the court of first instance.
The inconsistency of the court's conclusions with the actual circumstances of the case and the incorrect application of the law of Ukraine on criminal responsibility are pointed out.
They refer to the fact that during the interrogation of a witness in accordance with Art. 225 of the Criminal Procedure Code of Ukraine, there was no defense counsel, and therefore the testimony of the specified witness, which is the basis of the verdict, violates the right to protection of their clients. It was also believed that the defendants' right to defense was violated, as investigative experiments with their participation were conducted in the absence of the defense.
Justification of the position of the CCS: the panel of judges did not agree with the statements of the defenders. According to the materials of the criminal proceedings, the witness was questioned by the investigating judge in accordance with Art. 225 of the CCP. The audio recording of the witness' interrogation shows that his interrogation took place in the presence of the suspects, as well as the victim, who had the opportunity to ask the witness questions. At the same time, the defense counsel of the suspects was not present at this interrogation, but the suspects in their statements noted the possibility of questioning the witness without the participation of their defense counsel. According to the Court, in accordance with Art. 52 of the Criminal Procedure Code in this case, the mandatory participation of a defense lawyer is not provided for, and the materials of the criminal proceedings do not contain any objective data that after the explanation of the right to defense, the suspects had a desire to involve defense lawyers or had any obstacles in doing so contain Therefore, the verdict of the Lubensk City District Court of the Poltava Region dated July 4, 2018 and the decision of the Poltava Court of Appeal dated July 28, 2020 were left unchanged, and the cassation appeals of the defenders were dismissed.