The right to Defence
The CPCU provides for mandatory participation of a defence counsel in criminal proceedings. Such functions may be performed only by an advocate listed in the Unified Register of Advocates of Ukraine, or in respect of whom the Unified Register of Lawyers of Ukraine does not contain information on suspension or termination of their right to practice law[560]. The right to a defence counsel in criminal proceedings is granted to:
- a suspect;
- a person in respect of whom there is sufficient evidence to notify of suspicion of committing a criminal offence, but who has not been notified of suspicion due to their death;
- accused;
- convicted;
- acquitted;
- a person in respect of whom compulsory medical or educational measures are to be applied or the issue of their application is being considered[561];
Such persons may either choose a defence counsel on their own or exercise the right to receive free legal aid in accordance with Article 14 of the Law ‘On Free Legal Aid’[562]. Considering that the majority of criminal cases related to grave international crimes are considered in the absence of the suspect/accused or involve detained Russian military personnel who are unable to use the services of lawyers in Ukraine of their choice, a defence counsel from the free legal aid system is appointed to them by the investigating judge. He or she may be engaged for the entirety of the process or in a one-off procedural action.
In theory, the mechanism of free legal aid enables the suspect/accused to be properly represented and protect their rights in the process. Certain actions within criminal proceedings require the mandatory presence of a defence counsel, a stipulation put in place to ensure the admissibility of evidence.
Defence lawyers with experience in cases under Article 438 of the CCU indicate the challenges they have encountered: negative public reaction to the defence of the accused/suspect; lack of established case law, consequently guidance; lack of access to the suspect/accused; the need to acquire new knowledge and skills; and overt or covert bias among the judges, which inevitably results in a guilty verdict, negating the purpose of an effective defence. The defence lawyers also highlight the negative public perception of adequate defence to persons accused of war crimes. The stereotypical association of a defence lawyer with their client is particularly evident in such cases, impacting how defence lawyers are perceived in this context[563].
The greatest threat for the defence lawyers in conflict-related cased is to their life and health[564]. This is especially true when clients choose their own defence counsels[565]. On the other hand, engagement of defence lawyers from the state’s free legal aid system may raise questions over their personal impartiality. The state, in this case, acts as a customer of services, controls the quality and limits their provision, which in turn may become a factor affecting defence counsel’s strategies and decision in the process. In addition, a lawyer may be affected by the consequences of the armed conflict, which may be felt in the course of his or her work as a defence counsel for a Russian military officer charged with grave international crimes. For example, after 24 February 2022 there were cases where lawyers sided with the prosecution during court hearings[566] or did not draw the court's attention to the need to thoroughly investigate all circumstances of the case during the public trial of the Russian servicemen[567].
Similarly, instances of violations of the right to defence in cases of Russian prisoners of war are cited in the Report of the Office of the UN High Commissioner for Human Rights (OHCHR) on the Treatment of Prisoners of War and Persons Hors De Combat in the Context of the Armed Attack by the Russian Federation Against Ukraine. For example: ‘...Although all the defendants were assigned free legal aid lawyers, in a number of cases, they could only meet them for the first time or consequently during court hearings, which often took place via teleconference. These defendants were thus deprived of the right to speak confidentially with their lawyers before the hearings and the right to prepare a defence. Moreover, some interviewees claimed their lawyers sided with the prosecutors, advising them to plead guilty for a swifter release as part of an exchange. POWs were told by prosecutors, SBU officers, and sometimes their lawyers, that if they did not plead guilty, the investigations and court proceedings in their case would last for years with little prospects of release upon exchange’[568].
Another scenario emerges in cases tried in absentia. Often, defence lawyers appointed from the free legal aid system play a role that is merely to ensure formal compliance with the requirements of the criminal procedure legislation. In some instances, defence lawyers in such proceedings do not actively participate in the process[569]. In these cases, the prosecution presents all information about the alleged illegal actions of the suspect or accused to the court, and the presence of a defence counsel is merely a procedural formality to ensure the legality of the entire process. In other trials, defence counsel actively present their case even in the absence of the accused. They use all the shortcomings and gaps of criminal and criminal procedure legislation, as well as prosecution’s shortcomings during the investigation, to strengthen the defence position[570]. However, such a proactive and earnest disposition may result in tragic outcomes from public hatred and persecution to murder[571].
At the same time, the national legislation of Ukraine and international standards[572] governing the legal practice safeguards are designed to ensure the independence and impartiality of a defence counsel in the process, the conditions for effective professional activity and proper defence. In particular, they provide for protection against interference with a lawyer's legal stance or association of the lawyer with the client, the counsel’s personal safety; a prohibition on holding defence lawyers liable for their statements in a case (including those reflecting the client's position) or comments in the media, as long as they do not breach the counsel's professional duties; and the possibility for a defence lawyer to refuse to represent a client in case of a conflict of interest[573].
Unfortunately, there were violations of the rights of lawyers working on cases related to the consequences of the war even before the full-scale invasion. For instance, the report of the Office of the United Nations High Commissioner for Human Rights titled ‘Human Rights in the Administration of Justice in Conflict-Related Criminal Cases in Ukraine’[574] cites 12 documented attacks against privately contracted lawyers between 2014 and 2020 which are believed to have been motivated by their professional activities. The report further expresses concern over the authorities' failure to prevent and investigate these incidents. Investigations into documented attacks mentioned in the report failed to lead to the identification or prosecution of perpetrators. Given the demand for justice and the general pain inflicted by the Russian aggression on Ukrainian society, the situation may potentially escalate after the full-scale invasion when thousands of cases on international crimes will be sent by investigative authorities to courts and public trials will begin.
The facts above and risks in criminal proceedings related to the consequences of the armed conflict in Ukraine indicate potential challenges to ensuring the right to a fair trial. Despite the negative public sentiment towards alleged perpetrators of grave international crimes, in order to ensure a legal process in line with international standards, it is crucial to ensure their effective implementation at every stage of the proceedings: from ensuring equal guarantees for the defence to amending relevant legislation. At the same time, training of lawyers in international humanitarian law and international criminal law is an important step along with the training of other participants in the criminal process[575].
