Criminal Proceedings: Does the Adversarial Principle Work?
Published in Yurydychna Gazeta, issue 26 (628).
Author: Serhii Yaroshenko, Attorney-at-Law, Colares
The key task of criminal procedure law is to ensure the protection against criminal offence, as well as the protection of rights, freedoms and legitimate interests of parties engaged in criminal proceedings. Herewith, in actual practice, it can be accomplished only provided that the parties have equal rights, that is, when a criminal case is handled according to the principles of adversarial trial system.
The adversarial system emerged in contrast to inquisitorial procedure, where a single body (person) performed the functions of the prosecution, the defence, and a judge. In Ukraine, a number of adversarial principles were set forth in the Statute of the Criminal Procedure of 1864.
Adversarialism in criminal proceedings is a fundamentally new concept in Ukraine. It has emerged as a result of Ukraine’s development as a rule-of-law state and adoption international democratic standards applied in criminal proceedings.
While the Criminal Procedure Code adopted in 1960 was still in force, the adversarial principle was applied only during a trial. The adversarial and disposition principles were first included in the Constitution of Ukraine adopted in 1996 (Article 129, clause 3, paragraph 4). In 2001, the lawmakers supplemented the old Criminal Procedure Code with Article 16-1 and introduced the said principles in the criminal process.
The key task of criminal procedure reform is to establish the adversarial principle and the principle of equality of parties to a trial
Later on, the criminal procedure reform focused on the implementation of the adversarial principle and the principle of equality of the prosecution and the defence. The new Criminal Procedure Code (Article 22) adopted on 13 April 2012 set forth the adversarial principle. It states that criminal proceedings shall be adversarial, that is, the defence and the prosecution both make their own statements, protect the rights, freedoms and legitimate interests using any legal means provided by the said Criminal Procedure Code. The parties have equal rights to collect and submit to court any items, documents, and other evidence, file petitions and complaints, and as well execute other legitimate rights.
Therefore, it makes sense to speak about the full extension of the adversarial principle on pre-trial investigation. This became possible due to the strengthening of judicial control over the respect of rights, freedoms and legitimate interests of anyone engaged in criminal proceedings by introducing investigating judges who deal with wide range of procedural issues.
Adversarialism is an important feature of judicial systems in rule-of-law states and a driving factor in criminal proceedings. Herewith, adversarialism is of crucial importance for the defence since it is by default at a disadvantage.
Today, most scholars and practitioners agree that adversarialism is based on the following key elements:
- Separating the functions of the prosecution and the defence; handling any case with the involvement of various participants;
- Providing the prosecution and the defence with equal procedural rights;
- Active (leading) role of a judge (jury) in criminal proceedings;
The Criminal Procedure Code formally gives equal rights to the parties
Those who support the opposite point of view, see the main point of the adversarial principle in the division of the procedural functions between the court and the parties, with the passive procedural position of the judiciary.
The main point of the adversarial principle is that parties to criminal proceedings are aimed at the execution of their right to substantiate and defend their statements. It is a set of rules established by law aimed at making criminal proceedings adversarial, including procedural requirements, methods of their execution, tasks and legitimate interests.
The adversarial concept stipulates that the parties are provided with a complex of procedural rights, and by executing these rights, they can establish the facts confirming suspicion or accusation or, vice versa, completely or partially refute them, mitigate the punishment, or prove that the suspect (accused) is not guilty.
However, the adversarial principle stipulated in the Criminal Procedure Code is not properly implemented in actual practice.
Adversarialism is clearly a matter for concern for the defence
The established adversarial principle faces a number of problems in regard to its implementation in actual practice arising in the course of examining the evidence. The Criminal Procedure Code of Ukraine establishes unequal rights for the prosecution and the defence when it comes to the implementation of procedural mechanisms for collecting evidence, where the defence in unable to fully exercise its right to obtain all evidence to prove the defendant is not guilty, to defend its position, protect the rights, freedoms and legitimate interests of the defendant. Basically, the defence is at a disadvantage, while the prosecution gets the upper hand.
During a pre-trial investigation, the defence is at a disadvantage, as compared to the prosecution, since the defence has no right to conduct any investigation. Therefore, the investigating judge during the pre-trial investigation and/or the court during the preparatory proceedings has to ensure that the defence has exercised its right to collect and submit evidence. To proceed with n investigation, including a covert investigation, all the prosecution has to do is file an application with an investigating judge, while the defence has no right to conduct any such activities.
According to the Criminal Procedure Code of Ukraine (Article 95, paragraph 8), the parties have the right to request comments from the participants of the proceedings and other parties (upon their consent), which are not a source of evidence. We believe that such comments should be a source of evidence. The ability to exercise this right is provided by paragraph 4 of the said article, provided that the court can substantiate its conclusions only using the testimony obtained during the hearings or as prescribed by Article 252 of the Criminal Procedure Code. The court may not substantiate its decisions using any evidence obtained by investigators, prosecutors, or use such evidence as a reference. Thus, there are grounds for treating any such comment as a source of evidence that can be used as proof in a trial. Taking into account the aforesaid, if participants (or other parties) refuse to provide comments at a request of the defence, it would be reasonable if the investigating judge requires providing such comments in accordance with Article 252 of the Criminal Procedure Code of Ukraine.
It is far too soon to speak about the proper adversarial process and the equality of parties
A defence lawyer can to file a petition with an investigating officer or prosecutor. In accordance with Article 202 of the Criminal Procedure Code of Ukraine, the latter have an obligation to respond to such petitions within 3 days. However, a party can address an investigating judge only to if such party wants to challenge the investigator’s or prosecutor’s response, and the investigating judge will examine this application within 3 days. In this case, there is obviously no adversarialism or equality of parties here.
It is important that the Criminal procedure Code established the new rules for conducting searches. In particular, the law states that a search can be conducted only on grounds of a ruling of the investigating judge of a court at the registered address of the pre-trial investigation agency. Prosecutors and investigators have been banned from re-applying for conducting searches in the same premises, unless any new facts are indicated in a search motion. Article 236 of the Criminal Procedure Code was supplemented with a new rule, according to which any search may be conducted only in the presence of a lawyer or counsel, a person authorized to conduct a search has an obligation to admit a lawyer or counsel to the place where such search is conducted, and it is required that a search conducted in a person’s home or other property be audio and video recorded.
Defence lawyers should be admitted to the premises being searched
According to the Criminal Procedure Code, provided that the are sufficient grounds for expert examination, experts can be commissioned by an investigating judge at a request of a party to criminal proceedings. The investigating judge determines an independent expert or an expert institution. As a rule, judges choose among state expert institutions and deny motions filed by defence lawyers requesting a private expert to be appointed.
It appears that any engagement of unauthorised persons (such as investigating officers and/or injured parties) in a motion hearing, where a judge selects a restraint measure (Criminal Procedure Code, Article 1930), contravenes the adversarial principle and therefore, deprives a suspect of his or her right to fair trial, as provided for by the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6).
In criminal proceedings, the prosecution has no obligation to satisfy the defence’s legitimate request to acquire the relevant evidential information contained in the source of evidence, which as well obstructs the adversarial principle from being implemented.
However, the Criminal Procedure Code establishes a number of procedural restrictions for criminal trial participants (such as the defence, the court) that prevent them from exercising their functions when working with documents drawn up as a result of covert investigative activities. It appears that this provision clearly contravenes paragraph 3, Article 290 of the Criminal Procedure Code of Ukraine stating that the prosecutor or the authorised investigating officer has an obligation to provide access and authorisation to copy or describe, as appropriate, any material evidence, or parts thereof, documents or copies thereof. In addition, due to this provision, the defence appears to be on unequal terms with the prosecution, since the law does not restrict the prosecution’s right to make copies or describe any materials the defendant, the suspect (the accused) intends to use as evidence in court (the Criminal Procedure Code of Ukraine, Article 290, paragraph 6).
Most attorneys do not get access to state secrets
Basically, only few lawyers get access to state secrets. With limited access to covert investigation materials, one can reasonably doubt whether there a criminal trial, where the prosecution uses these materials as evidence, is actually adversarial.
The next problem is that the adversarial principle is not complied with when it comes providing evidence by the parties to criminal proceedings: Article 22 of the Criminal Procedure Code of Ukraine states that the prosecution and the defence maintain their statements. According to Article 347 of the Criminal Procedure Code, at the beginning of a trial, a prosecutor reads out the charges or a petition for medical treatment, and a civil claimant reads out a civil lawsuit. Thus, these participants of criminal proceedings can present their statements to court and submit their arguments, and as a result, their next procedural activities become substantial and logical. Herewith, the defence does not present its statements at the beginning of a trial. The accused only responds to a question whether the charges are clear, whether the accused pleads guilty and whether he or she wants to testify. Therefore, the defence cannot present its statements to court before the debate stage, which creates the impression that the evidence is not substantial and lacks any logic.
The author believes that harmonisation of local legislation with the EU standards plays the key role in the development of adversarial system in Ukraine in pursuance of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights.
Harmonization of Ukrainian legislation with the EU standards is the key to the due adversarial proceedings:
The ECHR case law suggests that equality before the law and court and adversarialism are a key to due process. In the modern world, adversarialism in legal proceedings is a criterion of democracy, civility, and fair trial. Herewith, the ECHR’s interpretation of the term “adversarialism” is somewhat narrower than that used by Ukrainian scholars. Article 6 of the European Convention on Human Rights states that everyone has the right to fair trial and parties are equal before the law, and therefore, the right to adversarial trial includes the right to be informed about any evidence provided or recorded by the other party and to comment on it.
Thus, the adversarial principle has been given attention in the ECHR case of Borgers v. Belgium. The judgment in this case dated 30 October 1991 contains the interpretation of the adversarial principle, according to which adversarialism means that any party to a trial has a right to get familiar with all evidence and comment on it, including the evidence provided by “the independent representative of the national legal system” with a view to influence the court.
Another interpretation of the adversarial principle appears in the ECHR judgment dated 20 February 1996 in the case of V. v. Belgium. The court ruled that adversarialism means that parties to criminal proceedings have the right to get themselves familiar with any evidence or comments included in the case and comment on them. Herewith, the ECHR judgment dated 16 February 2000 in the case of F. v. the United Kingdom, certain mechanisms for the implementation of this principle were established. The court as well ruled that pre-trial investigation officers have the obligation to notify the defence of any evidence they have obtained with regard to the case, both exculpatory and accusatory.
Adversarial process in the only option for rule-of-law state
In the modern rule-of-law states, there is no alternative to adversarial process. History shows that the adversarial principle in legal proceedings is deeply democratic. Adversarialism has always been characteristic of democratic states, where the equality of people, real economic and political freedoms, and protection from arbitrary rule are the pillars of society. Therefore, it is important that judicial reform in Ukraine leads to establishing of adversarial system common in rule-of-law states with developed institutions of human rights protection.