Yaroslav Zeykan, EQUITY partner, told the Legal High School students about the peculiarities of a lawyer's work with clients during a pre-trial investigation and lawyer ethics. He recalled that on April 13, 2012, the Verkhovna Rada of Ukraine adopted the Criminal Procedure Code of Ukraine, and noted that this Code took a huge step from the Soviet-style inquisitional process to the competitive Anglo-American system.
Based on his own experience as a judge, the lecturer emphasized that the Soviet criminal process was based on three postulates:
- the principle of attribution of guilt, which is contrary to the presumption of innocence;
- the principle of objective truth, although in courts it is not the truth that is established, but the proven or unproven guilt of a person;
- the priority of testimony of a witness or the accused, given during the pre-trial investigation, before the testimony given in court.
At the same time, he demonstrated with practical examples that the shameful traditions of Soviet justice in many respects remain in force to this day.
According to Yaroslav Zeykan, the shortcoming of the 2012 Criminal Procedure Code of Ukraine is the lack of safeguards against non-compliance with the law by the parties to the criminal process. He also noted that the prosecution has significantly more powers than the defense. The statistics provided by the lecturer show that in 2020, 784,096 criminal proceedings were registered, in 2019 — 840,447, in 2018 — 915,431. At the same time, only 234,816 people were officially recognized as victims in 2020, and 300 in 2019. 000, in 2018 — 344,780. In this way, about 800,000 cases were initiated, and only 234,000 people were victims, respectively, the rest of the cases, in which there is no victim, were initiated by the prosecutor's office and investigative bodies. Therefore, it is not surprising that 54% of the proceedings were closed on rehabilitative grounds, that is, there was no crime or event of the crime. In practice, this means that during the initiation of these proceedings there were suggestions of corrupt acts.
According to the lecturer, it is precisely the shortcomings of the legal technique of this Code that are responsible for the fact that the investigating judge does not have sufficient opportunities to dispose of completely groundlessly initiated cases. That is why we currently have 9 million criminal cases, which is more than China with its 1.5 billion population. It is not surprising that the investigation does not cope, and will not cope with such a mass of cases, because the investigator is physically unable to investigate 200-300 cases in compliance with the procedures provided for by the Code of Criminal Procedure of Ukraine.
Speaking about the relationship between a lawyer and a client, the lecturer noted that in Ukrainian realities, a lawyer is a legal opponent of the authorities, so an overly active lawyer is often identified with his client and they try to find a way to limit his rights or bring him to justice.
Based on examples from his own practice, Yaroslav Zeykan identified three stages of a lawyer's work during a pre-trial investigation.
The first is when materials are collected against a person for the initiation of a criminal case. At this stage, the lawyer can advise the person, provide legal assistance and exercise other powers, such as submitting a request for the presence of registered criminal cases against the client.
The second is when it becomes known that a criminal case has been registered against a person and an investigation is underway. At this stage, in addition to the measures of the first stage, the lawyer conducts an active search for facts and circumstances that exonerate his client, although he has not yet been charged. In addition, people who may become witnesses or potential suspects in the case are trained, including the rules of conduct during interrogation.
Yaroslav Zeykan considers the third stage to be the main one and it starts from the moment when a person is suspected. The Criminal Procedure Code of Ukraine provides for the right to provide written and oral explanations for the suspicion and the indictment, although lawyers often neglect this opportunity in order not to reveal the defense strategy prematurely. The lecturer advised the students of Legal High School to write the explanation in such a way that it cannot be used against the client. "In the explanation, it is necessary to record committed violations and facts that are subject to refutation. At the same time, all actions of the lawyer should be carried out at the most beneficial moment for the client," he emphasized.
Yaroslav Zeykan believes that the basic principle of factual defense in our conditions is the standard of proving guilt beyond a reasonable doubt, defined by Article 17 of the Criminal Procedure Code of Ukraine. This standard also applies during the pre-trial investigation, so the lawyer must use all factors to refute the accusation, order examinations, present his own evidence, etc.