The institute of state advocates – when it turns into the imitation of the right to a fair trial?
In the process of monitoring observance of human rights and main principles of justice during trials, the experts of International Society for Human Rights have often to deal with state representatives of a suspect (accused/defendant). The institute of state advocate supposes a possibility for a suspect to get an advocate in the case when, according to the law on criminal procedure, his, that is advocate’s, participation is mandatory, or the circumstances require presence of an advocate but the suspect (the accused) has not involved one, or when the suspect (the accused) has filed a petition requesting involvement of an advocate but, for lack of money, cannot afford him independently (article 49 of the Code of Criminal Procedure of Ukraine). .
From the point of view of the declared principles of equality of the parties in a trial and provision of a right to advocacy for the accused (article 129 of the Constitution of Ukraine), the necessity of existence of the institute of a state advocate is clear and fully corresponds to the task of exercising a fair trial. But if we try and view the situation from another side? For instance, the accused (the defendant) does not want to have any advocate and does not involve any due to this reason. The Code of Criminal Procedure of Ukraine stipulates that in the event that the suspect (accused) refuses from an advocate and in case when participation of an advocate is mandatory (according to article 52), the investigator, prosecutor, investigating judge or trial shall provide him with a state advocate (articles 49, 54 of the Code of Criminal Procedure of Ukraine).
And in this case there occurs a conflict. An advocate is obliged to represent the interests of a suspect (accused), but in some situations the very presence of an advocate (in the first instance, of a state advocate) does not correspond to the interests of one whom he is obliged to represent.
The case of V. Yanukovich has become one of the most high-profile legal cases of today which turns participation of a state advocate into a formality. On a certain stage of the trial on the case of high treason the former president of Ukraine has alleged that “it is not a court but a pure profanation. For me to be convicted within the shortest term, under the pressure exercised by citizen Poroshenko personally, there have been adopted special laws on conviction in absentia. This is a clear violation of the European convention on protection of human rights and fundamental freedoms. Apart from that, my submissions requesting provision of a possibility to participate in the trial in the mode of a video conference were refused” and recalled his advocates having indicated that their presence in court was obsolete. Following the order specified by criminal procedure, considering complexity of the case and gravity of the attributed crime, V. Yanukovich was provided with a state advocate.
Experts of ISHR monitor this judicial process and indicate that treatment by court of the state advocate was not more loyal than of the official advocates of the accused. Thus, it appears that V. Meshechek, a state appointed advocate, not only represented the interests of the person who declared in public that in this court he did not want to have anyone who would represent his interests (calling into question motivation and correspondence of a chosen way of advocacy to the interests of the defendant) but also was put into a situation where he was doomed to violate the rules of the lawyer’s ethics and Standards of the secondary legal assistance quality in a criminal case (in the part of necessity of personal meetings with the client); the court, in its turn, did not take into account a complex situation that the state advocate had got into, and reduced the time for familiarization with fifty volumes of the case to such limits that V. Meshechek had to refuse from the case and explain his refusal by lack of sufficient qualification.
Another regular session of the trial on the case of high treason of V. Yanukovich took place on 6 September. A new state advocate, M. Gerasko, was appointed. He does not have any connection with “the client”, cannot agree upon any defense strategy with him, does not have enough time for familiarization with a complex and cumbersome case of ex-president of Ukraine. The court has already refused a petition of the advocate requesting a three month term for familiarization with fifty volumes of the case, and has granted M. Gerasko only two weeks for studying the materials. This situation practically fully mirrors the situation with the previous state advocate of V. Yanukovich (as is known, afterwards it had resulted with advocate V. Meshechek having recused himself). M. Gerasko has already stated he had no intention of being a “statist” in the trial, where participation of an advocate, in his mind, was a formality.
So what have we been witnessing for the last three months: an attempt to imitate a fair justice or the institute of state advocacy being put to the test?
Expert council of ISHR