Priority Areas of Criminal Justice Reform in Ukraine: the Vision of Advocates

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1 Priority Areas of Criminal Justice Reform in Ukraine: the Vision of Advocates Results of the Questionnaire from Advocates Kyiv, November 2014 Disclaimer: The opinions and statements made in this document are those of the advocates-respondents who participated in the Questionnaire. They are not approved by nor do they reflect the official position or views of the Ukrainian National Bar Association, the Coordination Centre for Legal Aid Provision, the Association of Advocates of Ukraine, the Association of Lawyers Providing Legal Aid, or the European Union.

2 НАЦІОНАЛЬНА АСОЦІАЦІЯ АДВОКАТІВ УКРАЇНИ The questionnaire, and preparation and publication of this report, were financed by the European Union, under the EU Project «Support to Justice Sector Reforms in Ukraine»

3 Priority Areas of Criminal Justice Reform in Ukraine: the Vision of Advocates Results of the Questionnaire from Advocates Kyiv, November 2014 Disclaimer: The opinions and statements made in this document are those of the advocates-respondents who participated in the Questionnaire. They are not approved by nor do they reflect the official position or views of the Ukrainian National Bar Association, the Coordination Centre for Legal Aid Provision, the Association of Advocates of Ukraine, the Association of Lawyers Providing Legal Aid, or the European Union.

4 TABLE OF CONTENTS Methodology 3 Section 1. General evaluation of criminal justice reforms by advocates 4 Section 2. Impartiality and accountability of the judiciary 5 Section 3. Adversarial process and the equality of arms 8 Section 4. Protecting the status and work of advocates 12 Section 5. Transparency, access to information, and public access in criminal cases 15 Section 6. Raising the qualifications of legal professionals in criminal cases 18 CONCLUSIONS 22 APPENDIX. Classification of answers to the survey 23

5 Methodology The questionnaire for advocates regarding criminal justice reform in Ukraine was carried out on behalf of the European Union Project Support to Justice Sector Reforms in Ukraine, in cooperation with the Ukrainian National Bar Association, the Coordination Centre for Legal Aid Provision, the Association of Advocates of Ukraine, and the Association of Lawyers Providing Legal Aid. The Questionnaire has been designed to study the opinions and positions of advocates who are practicing in the field of criminal law and procedure, and covers problems in the criminal justice system. Information obtained from this survey is being utilized as a basis for recommendations for criminal justice sector reform in general, and for developing a Justice Sector Reform Strategy for Ukraine. The collection of information took place during August-October The method for collecting data consisted of having individual advocates complete the questionnaire, in an anonymous fashion. The Kyiv International Institute of Sociology helped collect information and carried out analysis of the results obtained from the questionnaire. A total of 195 respondents participated in the survey. The advocates represented all regions of Ukraine, except for the Autonomous Republic of Crimea. The breakdown of background information from respondents was: 77 % employed in cities (100+) 60 % males, and 40% females Ages between 25 and 67 (average age 38) 41 % private advocates, 28 % providing secondary legal aid, and 31 % combining both these activities Half of the respondents participating in the survey have at least 5 years of service as advocates. Work experience in the area of criminal law and procedure averages 9 years. 3

6 Section 1. General evaluation of criminal justice reforms by advocates The Concept of Criminal Justice Reform of Ukraine, approved in 2008, proclaims the necessity of reforming the criminal justice system towards further democratization, humanization, and strengthening protection of human rights and fundamental freedoms in accordance with international legal instruments which set up legally binding obligations for Ukraine before the European and world community. Adoption of the revised Criminal Procedure Code of Ukraine was a significant step forward with respect to criminal justice reform. However, the reform process has not yet been fully implemented. How do advocates practicing in the area of criminal law and procedure evaluate the justice reform processes underway? According to the results from the questionnaire, most advocates (91%) believe that the current process of justice sector reform in Ukraine does not sufficiently consider the position and interests of the defense. This is partly related to the fact that the advocacy community has not yet articulated or officially stated its vision of desired changes, or the actions required to reform the handling of criminal cases, create a more adversarial system in criminal proceedings, and ensure the equality of arms and fair court proceedings. The survey is designed to improve this situation, by setting forth and disseminating the position of advocates concerning other actors and institutions, and by influencing development of the strategic action plan for advocacy, so that it reflects the interests and positions of all parties involved in the criminal process. Another focal point in the process of criminal justice reform is application of international standards and best practices. In the view of almost all advocates surveyed (98 %), Ukraine should make greater efforts to apply international standards and the model practices of foreign countries in the field of criminal justice. Chart 1.1. Evaluation of the criminal justice reforms by the advocates Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree 80% 18% 1% 1% Ukraine should make a greater effort to apply international standards and best practices. 47% 44% 7% 2% The legal reform processes currently underway do not take sufficient account of the position or interests of advocates

7 Section 2. Impartiality and accountability of the judiciary Most of the participating advocates (88 %) believe that judges do not always adhere to the principle of impartiality during court proceedings. This includes their decision-making process, and the way that they treat advocates and defendants. Only 10 % of the respondents consider that judges display impartibility and equality in a majority of the cases. Chart 2.1. Do judges fully exercise the principle of impartiality during hearings, including the way that they make rulings and the way that they treat advocates and defendants? Strongly Agree Somewhat Agree Somewhat Disagree Rather no Strongly Disagree 3% 7% 2% 55% 33% The answers show that practicing advocates often deal with judicial prejudice and the accusatory tendencies of legal procedures. According to the respondents, a considerable percentage of judges are inclined to admit illegal evidence or testimony if they are advantageous for the prosecution. Half of the questioned advocates (50 %) indicate that they frequently come across circumstances where judges recognize the admissibility of evidences obtained in violation of Article 87 of the Criminal Procedure Code (that is to say, in substantial violation of human rights and fundamental freedoms). Collaboration between judges and prosecutors is widespread in practice. Three out of four respondents (75 %) indicate that they often or quite often deal with ex parte communications between judges and prosecutors in the absence of defense counsel. A considerable percentage of advocates consider that informal communication between judges and prosecutors outside the courtroom is the most problematic practice which interferes with legal protections. Chart 2.2. Cases of judges violation of the principles of impartiality Very often Often Sometimes Rarely Never Have you ever faced circumstances where a judge engaged in improper ex parte communications with a prosecutor in your absence as an advocate? 47% 30% 16% 2% 4% Have you encountered circumstances where a judge admitted evidence or a confession which was obtained in violation of Article 87 of the Criminal Procedure Code of Ukraine (in violation of human rights and fundamental freedoms)? 22% 28% 24% 12% 14%

8 Advocates assert that one of the most direct causes for violation of the principle of impartiality and support for the prosecution on the part of judges is the professional discipline which they face for issuing acquittals. Almost all of the respondents (96 %) deem this practice to be wrong, and believe that a finding of not guilty should never serve as the basis for disciplinary charges against judges. In addition, judicial compliance with legislation and ethical norms is considered vitally important for securing the principle of impartiality. Practically all of the questioned advocates (99 %) agreed that judges ought to uphold criminal procedure law and follow the ethical rules pertaining to relations with all parties to the criminal process, both inside and outside of court. Regarding other aspects of ensuring the principle of impartiality in the judiciary, advocates strive for the equality of arms between prosecution and defense. 94 % of advocates want judges to make greater efforts to ensure that they have full and equal access to the materials of criminal proceedings which are required for preparing their cases, in competition with the prosecution. Nearly 93 % of advocates consider that judges should make greater efforts to ensure that advocates have more time for preparing their cases. In addition, most advocates (87 %) agree that greater measures are required to guarantee the independence of judges. Advocates consider the following measures to be important for promoting impartiality of the judiciary: elimination of the lifetime appointment of judges, election of judges by the community, the introduction of jury trials, ensuring the publicity of court proceedings, application of technical tools for recording proceedings, clarification of the legislative framework for judicial accountability, periodical testing of the independence of judges and performance evaluation, and adequate financial security for judges. Thus, advocates believe that enhancing the impartiality and accountability of judges requires legislative changes covering formal practices (for instance abolishing the sanctions for investigators, prosecutors, and judges in cases of acquittal, ensuring greater equality of arms in practice), the elimination of certain informal practices, and ensuring greater compliance with legislation and the rules of ethics. Chart 2.3. Measures towards ensuring impartiality and accountability of judges Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Ruling of acquittal should not serve as a reason for judges facing a professional discipline. Judges ought to uphold criminal procedure law and rules of ethics concerning relations between parties of the process equally both inside and outside of court. Judges should make greater efforts to ensure that advocates, in comparison to prosecution, have full and equal access to materials of criminal proceedings, which are required for preparing their cases. Greater measures are required to protect the independence of judges and ensure that they are impartial arbiters of law and fact in criminal proceedings. Judges should make greater efforts to ensure that advocates have enough time for preparing their cases. 89% 7% 2% 2% 87% 12% 1% 76% 18% 5% 1% 61% 25% 8% 6% 58% 34% 6% 2%

9 Section 3. Adversarial process and the equality of arms One of the fundamental requirements for fair legal proceedings is equality between prosecution and defense. Evaluating the Criminal Procedure Code of Ukraine, adopted in 2012, 59% of advocates point out that it lacks adequate mechanisms for establishing an adversarial process, equality of arms between prosecution and defense, and ensuring the right to a fair trial. All of these issues need to be addressed. Chart 3.1. Do you believe that the new Criminal Procedure Code Of Ukraine goes far enough towards establishing an adversarial process, equality of arms between prosecution and defense, and the right to due process? No 17% Uncertain 1% Yes 4% Somewhat 36% Not so Much 42% Advocates almost unanimously (99 %) agree that the prosecution and defense should enjoy guaranteed equality of arms in criminal proceedings. Furthermore, practically all of the questioned advocates (97 %) noted that at the present time the defense, in comparison with the prosecution, enjoys a considerably narrower scope of rights for performing its respective tasks, and that the powers of defense to collect evidence need to be broadened. 7

10 Chart 3.2. Ensuring equality of arms Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Prosecution and defence should enjoy guaranteed equality of arms in criminal proceedings. 97% 2% 1% 75% 22% 1% 2% Powers of the defence to collect evidence should be broadened According to the survey, two-thirds of advocates (67 %) frequently face different types of infringements of their rights when performing their professional duties. About 46 % of advocates face situations in their legal practice where their clients are informed that they are under suspicion directly before the indictment is sent to court. Some 46 % of the questioned advocates assert that they often or very often are unable to receive equal and fair access to materials of proceedings, due to obstacles created by the prosecutor or investigator. Some 30 % of advocates experience situations where prosecutors or investigators deny them sufficient time to study the case materials. Chart 3.3. Violation of the rights of the defence Very Often Often Sometimes Rarely Never Have you ever faced a situation where your client was informed about a suspension directly before sending the indictment act to the court? 25% 21% 22% 9% 23% Have you ever been unable to obtain equal and fair access to materials of the proceedings because of a prosecutor or investigator? 21% 24% 31% 14% 10% Have you ever been deprived of sufficient time to become familiar with the file, evidence, or the results of investigations by a prosecutor or investigator? 11% 19% 31% 20% 19%

11 One of the most frequently cited examples of unequal treatment by judges relates to rulings on the admissibility of evidence, which frequently favor the position of prosecutors and rarely favor the position of the defense. According to the respondents, in 59 % of cases judges rarely or never found evidence to be inadmissible upon the request of the defense, whereas the figure is 49 % for the prosecution. Chart 3.4. How often is evidence ruled to be inadmissible at the request of Very Often Often Sometimes Rarely Never 3% 6% 33% 49% 9%... the prosecution 7% 19% 24% 28% 22%... the defence With regard to the powers of the prosecution in criminal proceedings, 92% of advocates believe that prosecutors should not face professional discipline (namely dismissal) in case of a ruling of acquittal by the judge. Also, 83 % of advocates agree that prosecutors should be deprived of their so-called general supervisory powers (this is foreseen under the new Law of Ukraine on the Public Prosecutors Office), and that prosecutors should focus exclusively on criminal prosecution. Most advocates view certain behavior of prosecutors in court unfavorably (such as the use of mobile phones at hearings, and not wearing appropriate attire or uniform). 72 % of the advocates answered that prosecutors should not be allowed to use mobile phones at hearings, while 28 % of advocates are against such a prohibition. Two-thirds agree that the prosecutor s office should take appropriate measures when a prosecutor participates in court proceedings without a uniform, while one-third do not see this as necessary. 9

12 Chart 3.5. Powers of the prosecution in criminal cases Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Prosecutors should not face professional discipline (for example, dismissal) in case a defendant is found to be not guilty. 75% 17% 4% 4% Prosecutors should be deprived of general supervisory powers and should focus exclusively on prosecuting criminal offenses. 46% 37% 13% 4% 51% 21% 23% 5% At court prosecutors should not be allowed to use their mobile phones or similar devices at hearings. Appropriate responsive measures should be taken in respect of the prosecutors who attend court hearing without appropriate attire or uniform. 31% 35% 26% 8% In order to ensure equality of arms, it is necessary to eliminate the accusatory bias of judicial proceedings, eliminate the enforcement of statistical requirements for prosecutors and law enforcement personnel, oblige prosecutors to submit all collected evidence to the court (and not only that which prosecutors believe proves guilt), and forbid out-of-court communications between prosecutors and judges. In addition, it is important to eliminate any forms of pressure regarding decision-making on working level prosecutors from their superiors, and reduce their individual workload. Finally, advocates emphasize the importance of applying the rulings of the European Court of Human Rights and widening the scope of rights of the defense. 10

13 Section 4. Protecting the status and work of advocates According to the respondents, protecting the status and work of advocates is a priority aspect of criminal justice reform in Ukraine. The most urgent demand of the defense regards access to information concerning criminal proceedings. 98% of respondents agreed that advocates should have the same access to information in criminal proceedings as prosecutors and investigators, including the database of the Integrated Register of Pre-Trial Investigations. Another pressing issue is the need to protect advocates from undue interference in their professional work (98% of advocates support this position; 76 % - absolutely and 22 % - partly). The majority of advocates (43 % fully and 44 % rather) agree that they should personally make greater efforts to prevent disclosure of and access to attorney-client confidential information by unauthorized parties, particularly information stored in electronic format. Other means for improving the work of the defense relate to creating better opportunities for confidential communication between advocates and defendants. According to the survey, 73 % of advocates (38 % fully and 35 % rather) agree that the right of the defendant to have confidential communication is limited in practice by the duration of communication, and is aggravated by the procedures for admitting advocates to custodial areas. Around 68 % of advocates believe that there should not be any limits on the number of advocates which can be engaged by one defendant in criminal cases. Chart 4.1. Priorities of protection of status and work of advocates Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Advocates should have the same access to information concerning criminal proceedings (such as database of the Integrated Register of Pre-Trial Investigation) as prosecutors and investigators. 76% 85% 22% 13% 2% 1% 1% Greater measures should be taken to protect advocates from the undue interference in their professional work. Advocates should personally make greater efforts to prevent disclosure of and access to attorney-client confidential information by unauthorized parties, particularly information stored in electronic format. In practice, the right of the defendant to the confidential communication is limited by the duration of communication and is aggravated by the procedure of admission of the advocate to custody. 43% 38% 36% 32% 35% 43% 27% 23% 12% 2% 4% 5% There should not be any limit to the number of advocates, which can be engaged by one defendant in criminal cases

14 The majority of advocates in different regions of Ukraine do not experience problems with recognition of their special professional rights. 46 % of the respondents fully agree and 29 % rather agree that when conducting their professional duties, advocates enjoy special professional rights which are recognized throughout the country. However, one out of four advocates does face problems with the recognition of rights on the territory of Ukraine. Chart 4.2. When conducting their professional duties advocate have special professional right, which should be honoured on a national basis throughout the territory of Ukraine. Strongly Disagree 2% Somewhat Disagree 23% Strongly Agree 46% Somewhat Agree 29% Respondents believe that the measures which are most necessary to protect the status and work of advocates include: Enhancing security guarantees for advocates, including the right to carry fire-arms, immunity, having necessary equipment in the rooms for confidential communication with clients, improving the protection mechanisms against criminal prosecution Protecting advocates, including respecting attorney-client confidential information, preventing wire-tapping of telephone conversations, prohibiting secret investigative procedures for advocates Providing social protections for advocates, including making them eligible for paid vacations and sick-leave, and social guarantees upon retirement Strengthening the status of advocates: including recognizing them as full and essential parties to the proceedings, both on the legislative level and in practice Respecting non-interference in the professional work of advocates by any supervisory state bodies, and a transparent and favorable system of taxation for self-employed persons 12

15 Section 5. Transparency, access to information, and public access in criminal cases Advocates very strongly support open trials, broad access of the public and journalists to court hearings, and the recording of court proceedings. Practically all of the respondents (97 %) agree that journalists should have access to court hearings, and that procedures for ensuring the participation of mass media in open court hearings should be transparent. Furthermore, 96 % of advocates consider that every trial should be open to the public, unless there are compelling legal reasons to the contrary, which are justified by law and specified in a motivated ruling by the judge. The introduction of specially designated and trained court officials who are responsible for public outreach and the dissemination of important information about the courts and court cases is fully supported by 53 % of advocates, and rather supported by another 36 %. Nearly the same percentage of advocates support the idea that judges, court personnel, and security officials should undergo special training concerning how to make hearings more accessible to the public. Chart 5.1. Transparency of court hearings Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree 68% 29% 2% 1% There should be transparent procedures for participation of media in open court hearings. Every trial should be completely open to the public, unless there are compelling legal reasons to the contrary, which are justified by law and specified in a motivated ruling by the judge. 64% 32% 3% 1% Courts should have specially designated and trained officials who are responsible for public outreach and the dissemination of important information about the courts and court cases to all interested parties. 53% 36% 10% 1% Judges, court personnel and security officials should receive special training concerning how to make hearings more accessible to the public. 51% 39% 9% 1% The majority of respondents approved all suggested measures for promoting judicial transparency, and found them to be significant. One of the most important measures is to ensure that courts respect and comply with the official schedule of judicial trials, which is extremely important for 81 % of the respondents, and rather important for another 17 %. Furthermore, more than 90 % of respondents consider that the following actions are essential for promoting 13

16 the transparency of legal proceedings: providing full and complete advance information concerning the scheduling and location of hearings through electronic means, ensuring the availability of video recordings of court proceedings upon appropriate request, facilitating public access to trials (in particular equipping courts with sufficient facilities for public attendance), and placing court calendars before the security point to promote easy public access to information. Somewhat less importance is given to full access to court hearings in criminal cases for civil society organizations, which was considered important by 84 % of respondents, but not important by 16 %. More than three-fourths of the advocates (77%) find the placement of information concerning the professional background of judges on court premises and official websites to be important. 68 % of respondents consider the availability of special facilities and information for journalists specializing in coverage of criminal cases to be important. With regard to promoting transparency, access to information, and public access in criminal cases, advocates also mentioned the following measures: imposing strict responsibility for unreasonable denials of access to information and unmotivated rulings on case handling, through special court hearings, conducting court hearings only in designated courtrooms (never in judge s offices), timely notification of court hearings, placement of all important information on official court websites, efficient compliance with the schedule of court hearings, and communication with civil society and the mass media through press-conferences. Chart 5.2. Actions for promotion of transparency and public access to criminal justice system Not So Important / Not Important Somewhat Important Very Important Availability of strict measures for ensuring courts respect and stick to the official schedule. 2% 17% 81% Placement of full and comprehensive information concerning the scheduling and location of hearings is fulfilled in advance through electronic means. 4% 25% 71% 5% 33% 62% Availability of video recording of court proceedings upon appropriate request. Sufficient court facilities for public attendance at trials and appropriate measures to ensure hospitability for visitors. 11% 34% 55% 14% 34% 52% Placement of court calendars before security to promote easy public access. Full access to penal proceedings for civil society organizations, so that they can perform oversight, monitoring and reporting on the results. 16% 38% 46% Information concerning the professional background of judges of the court is available on the premises and via the court website. 23% 32% 45% Special facilities and information for journalists who specialize in covering penal cases. 32% 37% 31% 14

17 Section 6. Raising the qualifications of legal professionals in criminal cases Advocates fully understand the need to raise the level of professionalism of all legal professionals (parties) in the proceedings. 98 % of respondents are convinced that advocates should raise their level of professionalism and preparation for court hearings, and 96 % highlighted the need to raise the level of professional qualifications of investigative judges. Chart 6.1. Necessity of raising professional level of the parties of the proceeding Strongly Agree Somewhat Agree Somewhat / Strongly Disagree 71% 27% 2% Advocates need to raise their level of professionalism and preparations for participating in court hearings. 64% 32% 4% Level of professional qualifications of investigative judges should be raised Respondents strongly support the idea of holding joint training with judges and prosecutors. 96 % of advocates agree that they should undergo joint training with judges, while 95 % favor such training with prosecutors, provided that the topic is suitable to this format. Chart 6.2. Necessity of joint training programs for advocates and prosecutors, advocates and judges Strongly Agree Somewhat Agree Somewhat / Strongly Disagree 74% 22% 4% Advocates should receive joint training with prosecutors, provided that the topic is suitable to this format. 66% 29% 5% Advocates should receive joint training with judges, provided that the topic is suitable to this format

18 One of the main priorities for specialized trainings is application of the Criminal Procedure Code of Ukraine in accordance with European Convention on Human Rights and Fundamental Freedoms, and in light of the practice of the European Court of Human Rights. 99 % of respondents consider this an important topic for training judges, and 93 % for prosecutors. 16 % of advocates consider their knowledge in this area to be poor, and another 44 % consider it only satisfactory. Advocates also want judges and prosecutors to receive more training on the adversarial process and equality of arms: 98 % consider these topics significant for training judges, and 85 % think that prosecutors lack sufficient knowledge in these areas. Generally speaking, advocates see the need to raise the qualifications of all legal professionals regarding the rules of evidence, the code of ethics for judges, the code of ethics for prosecutors, the rights and obligations of defense, and issues relating to application of the Criminal Procedure Code. Chart 6.3. Priority subjects of training for judges Very Important Somewhat Important Not Important 85% 13% 2% The adversarial process and securing equality of arms between prosecution and defense. Application of the Criminal Procedural Code in accordance with European Convention on Human Rights and fundamental freedoms and in light with the practice of the European Court of Human Rights. 82% 17% 1% 77% 21% 2% Rules of Evidence 52% 41% 7% Judicial Ethics 52% 38% 10% The work and rights of advocates

19 Chart 6.4. Subjects for raising qualification of prosecutors Need Training Possess Good Knowledge Application of the Criminal Procedural Code in accordance with European Convention on Human Rights and fundamental freedoms and in light with the practice of the European Court of Human Rights. 93% 3% Equality of arms between prosecution and defense 85% 10% Rules of Evidence 81% 8% Due process of law for defendants in penal cases 80% 12% Prosecutorial ethics 74% 9% The Criminal Procedure Code 70% 6% 48% 34% Securing defense counsel through appointment 17

20 Chart 6.5 Level of Advocate s Knowledge Poor Fair Good Excellent Application of the CPC in accordance with the European Convention on Human Rights, and in light of the practice of the European Court of Human Rights 16% 44% 31% 9% 8% 31% 44% 17% The Code of Ethics for advocates 4% 26% 52% 18% Rules of Evidence 3% 24% 60% 13% The Criminal Procedure Code Specificities of conducting defense by advocates providing free secondary legal aid 4% 22% 53% 21% 3% 17% 60% 20% Equality of arms between prosecution and defense

21 CONCLUSION According to the survey, the overwhelming majority of advocates are convinced that the current process of justice sector reform in Ukraine does not adequately take their position and interests into consideration. Criminal justice in Ukraine, according to advocates, is still based on an accusatory bias, and advocates cannot adequately exercise their right to effectively protect their clients. Thus, within the criminal justice reform process, more attention should be paid to goals such as ensuring the impartiality and accountability of the judiciary, implementing the principles of adversarial process and equality of arms, protecting the status and work of advocates, and ensuring the transparency and publicity of court proceedings. The survey reveals that in practice, advocates often face bias from judges during court proceedings, including the way that they make rulings. They consider it customary for judges to admit evidence collected illegally (especially if this benefits the prosecution), and often face collaboration between judges and prosecutors. Essential measures for ensuring the impartiality of judges, according to the advocates, include eliminating their liability for issuing acquittals, and establishing effective monitoring mechanisms to ensure their compliance with provisions of the legislative framework and the rules of ethics, particularly concerning relations between parties inside and outside the court. Another key element of ensuring judicial impartiality is public oversight: advocates greatly support measures to expand and facilitate the access of civil society and mass media to court hearings and court rulings. It is also very important to implement the principle of equality of arms between prosecution and defense in practice. The results of the survey confirm that advocates uniformly perceive their rights to be much narrower than those of the prosecution. One of the major demands of defense counsel is open access to information concerning criminal proceedings: practically all of the respondents agree that advocates should enjoy the same scope of access to information on criminal proceedings as prosecutors and investigators, (including access to the database of the Integrated Register of Pre-Trial Investigations). The next urgent requirement is greater measures for the protection of advocates from undue interference in their professional work. In addition to introducing changes to the criminal justice system, it is important to carry out professional training of all parties to criminal proceedings. This should focus on international standards and best practices in the field of criminal justice, application of the Criminal Procedure Code of Ukraine in accordance with the European Convention on Human Rights and Fundamental Freedoms and in the light of the practice of the European Court of Human Rights, full implementation of the principles of adversarial process and equality of arms, consistent application of the rules of evidence, and full adherence to the rules of professional ethics. 19

22 APPENDIX. Classification of answers to the survey Table 1. The legal reform processes currently underway do not take sufficient account of the position or interests of advocates. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 1 Table 2. Ukraine should make a greater effort to apply international standards and best practices. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 1 Table 3. Greater measures are required to protect the independence of judges, and ensure that they are impartial arbiters of law and fact in penal cases. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 2 20

23 Table 4. Do judges fully exercise the principle of impartiality during hearings, including the way that they make rulings and the way that they treat advocates and defendants? Absolutely yes Rather yes Rather no Absolutely no TOTAL RESPONSES Hard to say / Uncertain 5 Table 5. Ruling of acquittal should not serve as a reason for judges facing professional discipline. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 0 Table 6. Have you encountered circumstances where a judge admitted evidence or a confession which was obtained in violation of Article 87 of the Criminal Procedure Code of Ukraine (in violation of human rights and fundamental freedoms)? Very Often Often Sometimes Rarely Never TOTAL RESPONSES Hard to say / Uncertain 4 21

24 Table 7. Judges should make greater efforts to ensure that advocates have enough time for preparing their cases. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 1 Table 8. Judges should make greater efforts to ensure that advocates, compared to prosecutors, have full and equal access to the materials of criminal proceedings which are required for preparing their cases. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 1 Table 9. Judges should uphold criminal procedure law and rules of ethics concerning relations between the parties, both inside and outside of court. Strongly Agree Somewhat Agree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 1 22

25 Table 10. Have you ever faced circumstances where a judge engaged in improper ex parte communications with a prosecutor in your absence as an advocate? Very Often Often Sometimes Rarely Never TOTAL RESPONSES Hard to say / Uncertain 7 Please indicate the importance of training for judges on each of the following subjects. Table 11. The adversarial process and securing equality of arms between prosecution and defense. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 1 Table 12. Judicial ethics Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 7 23

26 Table 13. Application of the Criminal Procedure Code in accordance with the European Convention on Human Rights and Fundamental Freedoms, in light of the practice of the European Court of Human Rights. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 2 Table 14. Rules of evidence. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 1 Table 15. The work and rights of advocates. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 3 24

27 Table 16. Prosecution and defense should enjoy guaranteed equality of arms in criminal proceedings. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 0 Table 17. Have you ever been unable to obtain equal and fair access to materials of the proceedings because of a prosecutor or investigator? Very Often Often Sometimes Rarely Never TOTAL RESPONSES Hard to say / Uncertain 3 Table 18. Have you ever been deprived of sufficient time to become familiar with the file, evidence, or the results of investigations by a prosecutor or investigator? Very Often Often Sometimes Rarely Never TOTAL RESPONSES Hard to say / Uncertain 2 25

28 Table 19. Prosecutors should be deprived of general supervisory powers and should focus exclusively on prosecuting criminal offenses. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 1 Table 20. Appropriate responsive measures should be taken against prosecutors who attend court hearings without appropriate attire or uniform. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 4 Table 21. Prosecutors should not be allowed to use their mobile phones or similar devices at hearings. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 2 26

29 Table 22. Prosecutors should not face professional discipline (for example, dismissal) in case a defendant is found to be not guilty. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 0 Please indicate the level of knowledge, which prosecutors have regarding the subjects listed below. Table 23. Equality of arms between prosecution and defense. Possess good knowledge Need training Hard to say TOTAL RESPONSES Hard to say / Uncertain 2 Table 24. Due process of law for defendants in penal cases. Possess good knowledge Need training Hard to say TOTAL RESPONSES Hard to say / Uncertain 1 27

30 Table 25. Securing defense counsel through appointment. Possess good knowledge Need training Hard to say TOTAL RESPONSES Hard to say / Uncertain 2 Table 26. The Criminal Procedure Code. Possess good knowledge Need training Hard to say TOTAL RESPONSES Hard to say / Uncertain 3 Table 27. Application of the Criminal Procedure Code in accordance with the European Convention on Human Rights and Fundamental Freedoms, in light of the practice of the European Court of Human Rights. Possess good knowledge Need training Hard to say TOTAL RESPONSES Hard to say / Uncertain 2 Table 28. Rules of evidence. Possess good knowledge Need training Hard to say TOTAL RESPONSES Hard to say / Uncertain 1 28

31 Table 29. Prosecutorial ethics. Possess good knowledge Need training Hard to say TOTAL RESPONSES Hard to say / Uncertain 1 Table 30. Do you believe that the new Criminal Procedure Code of Ukraine goes far enough towards establishing an adversarial process, equality of arms between prosecution and defense, and the right to due process? Absolutely yes Rather yes Rather no Absolutely no TOTAL RESPONSES Hard to say / Uncertain 4 Table 31. Does the defense have enough time to study the materials in criminal proceedings? Absolutely enough Rather enough Rather not enough Absolutely not enough TOTAL RESPONSES Hard to say / Uncertain 3 29

32 Table 32. Powers of the defense to collect evidence should be broadened. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 2 Table 33. Have you ever faced a situation where your client was informed about a suspension directly before sending the indictment act to the court? Very Often Often Sometimes Rarely Never TOTAL RESPONSES Hard to say / Uncertain 6 Table 34. It is necessary to raise the professional qualifications of investigative judges. Strongly Agree Somewhat Agree Somewhat Disagree TOTAL RESPONSES Hard to say / Uncertain 4 30

33 Table 35. Defendants should not be placed in metal or glass cages in the courtroom, except under circumstances caused by the social danger of the accused, his/her risk of avoiding justice, or other reasonable circumstances of public safety or proper administration of justice. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 2 Table 36. How often is evidence ruled to be inadmissible at the request of the prosecution? Very Often Often Sometimes Rarely Never TOTAL RESPONSES Hard to say / Uncertain 8 Table 37. How often is evidence ruled to be inadmissible at the request of the defense? Very Often Often Sometimes Rarely Never TOTAL RESPONSES Hard to say / Uncertain 4 31

34 Table 38. What practices in criminal proceedings or barriers to the defense do you find most problematic? There is an answer Hard to say / No answer 74 TOTAL RESPONSES 195 Table 39. Greater measures should be taken to protect advocates from undue interference in their professional work. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 4 Table 40. In practice, the right of the defendant to confidential communication is limited by the duration of communication, and is aggravated by the procedures for admission of the advocate to custodial areas. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 6 32

35 Table 41. Advocates should personally make greater efforts to prevent the disclosure of and access to attorney-client confidential information by unauthorized parties, particularly information stored in electronic format. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 7 Table 42. Advocates should have the same access to information concerning criminal proceedings (such as database of the Integrated Register of Pre-Trial Investigation) as prosecutors and investigators. Strongly Agree Somewhat Agree Somewhat Disagree TOTAL RESPONSES Hard to say / Uncertain 3 Table 43. When conducting their professional duties advocates have special professional rights, which should be honored on a national basis throughout the territory of Ukraine. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 9 33

36 Table 44. There should not be any limit to the number of advocates, which can be engaged by one defendant in criminal cases. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 8 Table 45. Every trial should be completely open to the public, unless there are compelling legal reasons to the contrary, which are justified by law and specified in a motivated ruling by the judge. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 2 Table 46. There should be transparent procedures for the participation of media in open court hearings. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 3 34

37 Table 47. Judges, court personnel and security officials should receive special training concerning how to make hearings more accessible to the public. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 3 Table 48. Courts should have specially designated and trained officials who are responsible for public outreach and the dissemination of important information about the courts and court cases to all interested parties. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 2 Please indicate the importance of each of the following subjects for transparency and public access to the penal justice system. Table 49. Sufficient court facilities for public attendance at trials and appropriate measures to ensure hospitability for visitors. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 3 35

38 Table 50. Availability of video recording of court proceedings upon appropriate request. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 3 Table 51. Full and complete information concerning the scheduling and location of hearings is provided in advance through electronic means. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 3 Table 52. Availability of strict measures for ensuring that courts respect and stick to the official schedule. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 2 36

39 Table 53. Full access to penal proceedings for civil society organizations, so that they can perform oversight, monitoring and reporting on the results. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 4 Table 54. Placement of court calendars before security to promote easy public access. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 2 Table 55. Information concerning the professional background of judges of the court is available on the premises and via the court website. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 34 37

40 Table 56. Special facilities and information for journalists who specialize in covering penal cases. Very important Somewhat important Not so important Not important TOTAL RESPONSES Hard to say / Uncertain 5 Table 57. Advocates need to raise their level of professionalism and preparations for participating in court hearings. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 5 Table 58. The Code of Ethics for advocates needs to be a) strengthened and developed through consultative processes, and b) made into a practical guide for their conduct under a wide range of circumstances. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree TOTAL RESPONSES Hard to say / Uncertain 8 38

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