Рight to information in misdemeanour proceedings - analysis of practitioners experience in Croatia

The author of the article emphasizes the lack of regulation of the issue about the scope of the inalienable personal procedural rights of suspects and accused (defendants) within national criminal procedural legislation. The implementation of these rights can not be entrusted to other persons, in particular, their defense attorneys, legal representatives. Such procedural rights are called undelegated, since they are exercised directly by suspects and accused (defendants). Special attention is paid to the fact that such a gap in the law can not negatively affect the legal regulation of the procedural status of both suspects, accused (defendants), and other participants in the criminal proceedings, to whom the legislator delegates the rights of the latter, namely: a defense attorney, a legal representative, persons in respect of whom it is supposed to use coercive measures of a medical or educational nature or there was the issue about their application, their legal representatives. It is stated that there are no studies in modern procedural science, containing a close to exhaustive list of undelegated procedural rights of suspects and accused (defendants). We set the goal to single out a group of inalienable personal rights of suspects and accused (defendants) within the totality of their procedural rights that are exercised solely by them and can not be delegated to other participants in the criminal proceedings. The group of the above procedural rights includes such rights of suspects, accused (defendants) as: to be clearly and timely informed about their rights provided by the Criminal Procedural Code, as well as to obtain their explanation; to waive the right to counsel at any time of criminal proceedings; do not say anything on the merits of suspicion, accusations against them or at any time refuse to answer questions; to give explanations, testimonies in terms of suspicion, accusations or to refuse at any time to provide them; to demand compensation for damage caused by unlawful decisions, actions or omission of the agency involved in carrying out operative and search activities, pre-trial investigation, of a prosecutor’s office or courts, in the manner prescribed by the law, as well as restoration of reputation in case if suspicion, charge have not been confirmed; to conclude a guilty plea agreement or a reconciliation agreement with the victim. The procedural right of a suspect to state his testimony during the interrogation with his own hand is undelegated one. As for an accused (defendant), he can not delegate other participants in the criminal proceedings to exercise his right to receive clarification on the procedure for the preparation and use of the pre-trial report, refuse to participate in the preparation of the pre-trial report; to participate in the preparation of the pre-trial report, to provide information to the representative of the probation authority for the preparation of such a report, to submit own comments and clarifications. The author has grounded the purpose of the indicated procedural rights of suspects and accused (defendants).

The problems of litigation stages become ever more pressing for their participants, as amendments to the criminal procedural legislation in effect are very frequent. The developing a legal position on one or the other law-related situation, to say nothing about exclusive legal issues, is not something that can be done in a day, and the situation where the judges do not have the same position on an issue is especially upsetting. The legal issue of ability (inability) by the accused, by the convicted to withdraw the appeal or cassation appeal of the defense lawyer is one of those. The fact is obvious and undeniable that in the court practice, this issue was already being resolved multiple time, yet no clear single legal position was developed for the problem. Thus, the panel of judges of the Second Judicial Chamber of the Court in its decision as of 10.05.2018 in case No. 462/4125/16к (proceedings No. 51-357км17) concluded that, by virtue of the requirements of Part 1 of Art. 403, Art. 432 of the Criminal Procedure Code of Ukraine, the petition of the convicted person to refuse the cassation appeal of the defense lawyer cannot be considered in the court of cassation, since another person applied, and not the person who filed the complaint. At the same time, the decision of 03.07.2018 of the panel of judges of the First Court Chamber of the Cassation Criminal Court of the Supreme Court (case No. 448/208/15к, proceedings No. 51-3132км18) contains the opposite conclusion. In particular, that the suspect, the accused or the convicted person has the right to carry out procedural actions and refuse a complaint filed in his interests, unless the participation of a defense lawyer is mandatory or the person is in such a vulnerable position that calls into question the voluntariness of such actions. Similar legal positions have been expressed in other judgments of the Court. Due to the disagreement of the panel of judges of the Second Judicial Chamber with such conclusions, on September 17, 2020, the decisions of this situation were submitted to the Joint Chamber for consideration, and a corresponding appeal was sent to the members of the Scientific Advisory Council. My own considerations, as a member of the Scientific Advisory Council at the Supreme Court, were set out in the scientific opinion of 25.12.2020, so I will try to share them also with the scientific community and a wide range of practicing lawyers. Based on the results of the scientific and practical search, it was proved that the current statement of Part 1 of Art. 403 of the Code of Criminal Procedure of Ukraine requires immediate alignment with the procedural rights of a suspect, accused, convicted person, acquitted person. As well as a defense attorney and with the requirements of such principles of criminal proceedings as discretion, ensuring the suspect, the accused have the right to defense, the adversarial nature of the parties and the freedom to present their evidence and in proving their credibility before the court. The criminal procedural law cannot and should not provide for the obligatory refusal of a cassation appeal by a defense attorney, presented in the interests of an accused, a convicted person, exclusively by the same person - a defense attorney. The participation of a defense attorney in criminal proceedings does not limit the procedural rights of both the suspect, the accused, and the convicted, acquitted. The accused, the convicted person has the right to withdraw the appeal or cassation complaint of the defense lawyer. Restriction of the right to withdraw an appeal or cassation complaint of a defense attorney by an accused or a convicted person may take place in two cases. In particular, if there are grounds for the mandatory participation of a defense attorney in criminal proceedings. And/or if the defense attorney proves that he/she has a justified conviction about the fact of self-incrimination by the accused or convicted , which gives him grounds to take a position that will be different from the will of the accused, convicted, including when appealing court decisions in the appeal and cassation procedure.

The chapter deals with strengthening procedural rights in criminal proceedings as a consequence of mutual recognition. It is divided into eight sections and includes concluding observations at the end. Section 15.1 focuses on acceptance of procedural rights at the European Union level. While Sect. 15.2 introduces the need for strengthening procedural rights, Sect. 15.3 analyses the Roadmap for strengthening procedural rights in criminal proceedings. Further, Sect. 15.4 focuses on the right to interpretation and translation, Sect. 15.5 focuses on the right to information, Sect. 15.6 focuses on the right of access to a lawyer and related rights, Sect. 15.7 focuses on presumption of innocence and the right to be present at trial and Sect. 15.8 focuses on procedural safeguards for children.

This chapter considers the secondary legislation that has been adopted by European Union institutions under Article 82(2) TFEU (Treaty on the Functioning of the European Union) in the field of procedural rights in criminal proceedings. Article 82(2) TFEU is included in the Lisbon Treaty conferring to the EU express competence to adopt minimum standards on criminal procedure. The chapter first provides an overview of the EU Directive on the right to interpretation and translation, the right to information, the right of access to a lawyer, the right to legal aid, procedural rights of children, and presumption of innocence. It then discusses some of the key challenges in reaching agreement on EU standards on procedural rights in criminal proceedings, before concluding with an analysis of the transformative potential of EU law on procedural rights when viewed within the broader constitutional and institutional context of the EU.

This article purpose is to determine legal status content of the defense attorney of the suspect (accused) in criminal proceedings, to characterize the guarantees of his professional activity. For implementing the set goal, a set of general scientific methods was applied (analysis and synthesis, generalization, logical-structural approach, etc.). It was investigated that the guarantees of the professional activity of the lawyer (defense attorney) in criminal proceedings are represented by a set of international legal and national provisions that determine his rights and obligations in the event of his defense of the suspect (accused / defendant / convicted). The sources of the aforementioned guarantees are the Constitution, the Criminal Procedure Code, the Law “Law of Ukraine: On the Bar and Legal Practice”, and subordinate regulatory legal acts of Ukraine. The outlined legal guarantees determine the powers of the defense attorney in ensuring the right to defense and fair justice, they are used when obtaining evidence, to substantiate the legal position, to appeal procedural decisions, etc. The system of legal guarantees of the defense attorney in criminal proceedings is presented in the form of: 1) constitutional and criminal law provisions that provide grounds for criminal liability for violation of the right to defense, as well as for any illegal influence on its activities (Articles 397-400 of the Criminal Code of Ukraine); 2) general guarantees stipulated by the Law of Ukraine “Law of Ukraine: On the Bar and Legal Practice”, international legal acts and the practice of the European Court of Human Rights; 3) criminal procedural guarantees that give the defense attorney the right to represent the interests of the client, participate in procedural measures, submit motions, complaints, etc.; 4) special guarantees that determine the competence of the defense attorney in resolving narrowly defined issues (for example, initiating a forensic examination based on contractual relations).

The article highlights the problem of ensuring the effective functioning of the criminal justice system in Ukraine, especially in the context of modern challenges, such as martial law and social transformations. The study of the implementation of criminal proceedings tasks as an effective means of combating criminal-illegitimate abuses by individual participants is relevant. The complex nature of criminal proceedings tasks is considered, which include not only the fight against crime, but also the urgent need to protect the rights, freedoms and legitimate interests of all persons involved in the criminal process. It is proven that criminally unlawful abuses, which can be committed primarily by persons vested with power, pose a significant threat to the fairness of justice and the achievement of its goals. The article substantiates the need for a deep understanding of the essence of the tasks of criminal proceedings, enshrined in the Criminal Procedure Code of Ukraine, as well as the criminological and criminal-legal nature of possible abuses by individual participants in criminal proceedings in order to develop effective mechanisms for counteracting the commission of criminal offenses in the field of justice. The concept of due process of law as a fundamental guarantee of respect for the rights of participants and its connection with the principle of the rule of law is analyzed. International experience, in particular that of England and Wales, is studied in ensuring a fair resolution of criminal cases, including equality of parties and respect for human rights. The article analyzes the problem of abuse of procedural rights, which, despite the absence of a direct prohibition in the Code of Criminal Procedure of Ukraine, is recognized as a general legal principle, which is confirmed by judicial practice. The author argues that the insufficient legal certainty of the concept of "abuse of law", especially in the professional activities of individual participants in criminal proceedings, creates difficulties for the legal qualification of such actions. Various forms of criminally unlawful abuse are considered, in particular, both abuse of power during criminal proceedings and abuse of procedural rights to delay the process. Special attention is paid to the problem of criminally unlawful abuse by the prosecutor. It is concluded that the implementation of the tasks of criminal proceedings is directly related to the creation of a reliable system of countering criminally unlawful abuse by individual (authorized to conduct the process) participants in criminal proceedings, who undoubtedly encroach on the rights and legitimate interests of participants involved in the criminal proceedings. The definitions of "tasks of criminal proceedings", "criminally unlawful abuses", "abuse of procedural rights", "due legal procedure" are analyzed. The feasibility of improving legislation on liability for criminally unlawful abuses, as well as means of counteracting criminally unlawful abuses in criminal proceedings, is established. Directions for increasing the efficiency of judicial control are indicated, and it is also proposed to restore the institution of a separate court decision, taking into account positive international experience. Keywords: criminal proceedings, tasks of criminal proceedings, participants in criminal proceedings, criminology, means of counteracting criminal offenses in relation to participants in criminal proceedings, criminally unlawful abuses, abuse of procedural rights, due legal procedure, counteracting criminally unlawful abuses in criminal proceedings, rule of law, fairness of justice.

The article examines the problematic issues of the lawyer’s functions in the criminal process. The purpose of the article is the doctrinal definition of the lawyer’s functions in the domestic criminal process based on the results of the analysis of the doctrinal interpretation of the concept of function in the criminal process, the doctrinal understanding of the status of the lawyer and defense and their functions in the criminal process. On the basis of the analysis of scientific sources, as well as the provisions of the national procedural legislation, the concept, content and types of functions of the lawyer in the criminal process were investigated. The author’s definition of the concept of criminal procedural functions is formulated. It has been proven that a lawyer performs three functions in a criminal trial: defense; representation; advisory and legal assistance. These functions are defined and their content is disclosed. The function of protection as a type of advocacy consists in ensuring the protection of the rights, freedoms and legitimate interests of a suspect, accused, defendant, convicted, acquitted, a person in relation to whom the use of coercive measures of a medical or educational nature is expected or the question of their use in criminal proceedings is being decided, a person, in relation to which the question of extradition to a foreign state (extradition) is being considered, as well as a person who is criminally liable in criminal proceedings. The function of representation as a type of lawyer’s activity is to ensure the implementation of the rights and obligations of the client in the criminal process, namely the implementation of the rights and obligations of the victim, civil plaintiff, civil defendant and witness. The function of advisory and legal assistance as a type of advocacy consists in providing legal information, consultations and clarifications on legal issues, legal support of the client’s activities, drafting statements, complaints, procedural and other documents of a legal nature, aimed at ensuring the realization of rights and freedoms and legitimate interests of the client, preventing their violations, as well as assisting in their restoration in the event of a violation. It is proved that in comparison with Art. 48 of the Criminal Procedure Code of Ukraine of 1960, in the Criminal Procedure Code of Ukraine of 2012 (Articles 46–54), the legislator significantly expanded the list of grounds for which a defense attorney, after being involved in criminal proceedings, has the right to refuse to perform his duties. It is emphasized that the current Code of Criminal Procedure of Ukraine significantly improved the legal status of the defender, compared to the Criminal Code of Ukraine of 1960, which is manifested, in particular, in the establishment of additional procedural rights and a special procedure for his entry into criminal proceedings.

The article examines the institution of a lawyer’s investigation in criminal proceedings, as well as the activity of a defense attorney in collecting evidence within the framework of criminal proceedings, which should be regulated as fully and qualitatively as possible (as far as possible) in order to implement such principles of criminal proceedings as the presumption of innocence, ensuring the suspect’s right for the defense, competition of the parties, and these principles should apply not only at the stage of the trial, but also at the stage of the pre-trial investigation. Attention is drawn to the fact that currently, in practice, in the absence of legislative regulation of the procedure for the inclusion of information collected by the defense counsel in the materials of criminal proceedings, the defense counsel has to make a reasoned request to officials who are conducting criminal proceedings. It is noted that evidentiary information collected by the defense attorney on his own without involving the materials of the criminal proceedings cannot be used in the process of proving and substantiating the position of the defense in the criminal proceedings, i.e. become evidence in the full sense of the word. In this regard, it is proposed to make changes to the Criminal Procedure Code of Ukraine regarding the procedure for the inclusion of information collected by the defense attorney in the materials of criminal proceedings, including the procedure for providing it by the defense attorney and the procedure for receiving it from the defense attorney by the inquirer, investigator, prosecutor, and court, specifying that no the right, and the duty of persons conducting pre-trial investigation in criminal proceedings to attach evidentiary information to the materials of criminal proceedings. It is pointed out the need for regulatory regulation of the specified legal relations in view of the importance of the development of the institution of evidence collection by the subjects of criminal proceedings, including the defense attorney; since his activity in this field is necessary for the practical implementation of the principle of adversarial criminal proceedings, equality of the parties, as well as for objective pre-trial investigation and trial of each specific criminal proceeding.

Procedural rights are generally regarded as an aspect of the rule of law and detached from substantive rights. Procedural rights, as entry points for supporting substantive rights, play an irreplaceable role in helping substantive rights come into practice, when an interference occurs. For instance, broad access to information promotes better decisions by mobilising a demand for sustainable solutions to problems. However, procedural guarantees of information and participation can prove insufficient to protect the environment if a fully informed society decides to sacrifice environmental quality in order to advance economic or cultural considerations. Nevertheless, people should be involved in decisions that potentially affect them. To empower people with procedural rights could be a better guarantee for their involvement. Historically, after the 1972 Stockholm Conference on the Human Environment, environmental scholars and activists began to consider human rights in a more instrumental fashion, identifying those rights whose enjoyment could be considered a prerequisite to effective environmental protection. They focused in particular on the procedural rights of access to environmental information, public participation in decision-making, and access to justice and remedies in the event of environmental harm. This was confirmed by “Our Common Future” (the Brundtland report) published in 1987. And then, the World Commission on Environment and Development (WCED) adopted a list of proposed legal principles for environmental protection and sustainable development, the first of which reads “ all human beings have the fundamental right to an environment adequate for their health and wellbeing ”. Principle 6 specifically concerns the right to information and equal access and due process in administrative and judicial proceedings. After these, the Convention on Trans-boundary Effects of Industrial Accidents was the first international treaty to contain the three procedural environmental rights, which are the right to information, the right to participation and the right to access to remedies (Article 9). Three months later, these three procedural environmental rights were approved in Principle 10 of the Rio Declaration on Environment and Development. It says that: “ Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.

Introduction. Improving the effectiveness of criminal procedural activities within the framework of the modern adversarial model of criminal proceedings is the main direction in the administration of justice in criminal cases. The key role assigned to the court in the process of organizing and conducting the trial of criminal cases, due to its obligation to create equal conditions and opportunities for the exercise of procedural rights by the parties during the trial, actualizes the appeal to the problems of providing the court with appropriate procedural means of error-free criminal procedural activity, the result of which should be the decision of a lawful, reasonable and fair decision. The court’s focus on ensuring the equality of the parties at all stages of the adversarial trial should have a positive impact on the effectiveness of achieving the objectives of this stage and minimize judicial errors. Theoretical Basis. Methods. The research was carried out on the basis of the use of classical doctrinal foundations and modern theoretical developments of the category of “competitiveness” in criminal proceedings. In the course of the work, basic general scientific and private scientific methods of scientific cognition were applied, such as: dialectical, historical, systematic, formal legal, comparative legal, method of procedural modeling and others suitable for the study of such a stage of criminal proceedings as a trial. Results. Based on the basic concepts of competitiveness in modern Russian criminal proceedings, the main elements of the modern adversarial model of judicial proceedings in criminal proceedings are characterized. Based on the analysis of the current criminal procedure legislation and judicial practice, the main stages of ensuring by the court the requirements of competitiveness and equality of the parties in court proceedings, which need increased attention of subjects of judicial activity in order to strengthen the level of protection of the rights and legitimate interests of the parties defended by them in an adversarial trial, are identified and analyzed. Generally, the adversarial model of judicial proceedings is defined as a form of criminal procedural activity of the court and equal parties, implemented through the use of procedural means suitable for organizing the competition of equal and equivalent parties regarding a dispute about the guilt of the defendant. Discussion and Conclusion. The stage of judicial proceedings in modern criminal proceedings, of all the stages of the criminal process, most fully corresponds to the features of the adversarial model of the organization of criminal procedural activity. In an adversarial trial, maximum guarantees of the realization of the rights of participants in criminal proceedings are concentrated, supported by conditions provided by the court for a full-fledged procedural competition of equal parties. The provision by the court of guaranteed criminal procedural rights of the parties, implemented in the form of adversarial proceedings, takes place at all stages of the trial using appropriate procedural means. Increasing the effectiveness of the parties’ participation in the judicial investigation is possible by specifying in the law the right of the chairman to issue a notification of the need to provide additional materials.

The article traces the genesis, negotiations, and content of Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and European Arrest Warrant (EAW) proceedings. Inspired by Salduz case law, the Directive sets detailed rules on access to a lawyer from the earliest stages of proceedings, including during questioning and investigative acts, and introduces safeguards on confidentiality, derogations, and remedies. It also innovates by granting requested persons in EAW cases the right to appoint a lawyer in the issuing state. The author highlights the political compromises among Member States and with the European Parliament, noting that the Directive constitutes a milestone in the EU roadmap on procedural rights, balancing high protection standards with prosecutorial interests.

The paper raises the issue of waiver (replacement) of a state defense lawyer by a suspect (accused) who provides free legal aid in criminal proceedings. The author analyzes the provisions of the current legislation in Ukraine, which regulates the provision (replacement) of a lawyer, compares and analyzes the practice of courts in the application of the law, focuses on the issue of determining the criteria for the quality of services provided by a lawyer, studies the view on this problem through the decisions of the ECHR (European Court of Human Rights), and also suggests ways to solve this problem by amending the current legislation and presents a fundamentally new approach to the procedure of waiver (replacement) of a lawyer in criminal proceedings. In the paper, the author notes the problem in the legislative definition of the possibility of waiver (replacement) of the lawyer and, as a result, the uneven application of the law occurs in practice by the courts; it is proposed to amend the specific procedural rules that regulate these relations, namely, to detach the issue of waiver (replacement) of the lawyer into a separate process, the author justifies the need for such detachment and decision-making by the investigating judge. The author notes that the issue of refusal (replacement) of a lawyer during a pre-trial investigation with a legally defined adversarial proceeding is decided by the prosecution-the investigator (prosecutor), which is in itself wrong and can affect the choice of a lawyer, his tactics and methods of defense. The proposed changes, in the author's opinion, solve the problem of inconsistency in the application of the law in terms of waiver (replacement) of a defense lawyer by a suspect (accused), determine the unity of approach in solving these issues, preserving the defendant's right to choose freely a lawyer and protecting him from disclosing the chosen line of defense to the prosecution.

Although national laws implementing Directive 2013/48/EU on the right of access to a lawyer provide a legal framework, the protection of the rights of suspects must be carried out by defence lawyers in their day-to-day practice. National legal frameworks may be internally inconsistent or may fall short of European Union requirements. Research shows that, for these or other reasons, defence counsels may encounter a variety of difficulties in fulfilling their role at police interviews, which often leads them to adopt a passive approach. An approach focused on adherence to new regulations appears insufficient to prepare lawyers for this role. It is essential that lawyers are given practical tools to effectively fulfil their role, especially where regulations do not provide any guidance. To this end, a new practical training programme has been developed and piloted in four countries, with these initial experiments providing promising results.

Safeguarding fundamental procedural rights in the context of security concerns has been topical in the EU ever since the increased threats of terrorism post-9/11. This Article revisits the landmark case law on Kadi, which provided the premise for balancing due process rights and security concerns in the context of restrictive measures. The focus of this Article is on the specific procedural right of access to the file. The Article begins with a description of the legal framework on restrictive measures to the extent it is necessary for understanding the production and flow of information in the sanctions context. It then proceeds to scrutinise the development of the right of access to the file in this context through the Kadi cases and subsequent case law. The Article moves on to deal with the new developments in the Rules of Procedure of the General Court, which introduced a new closed procedure in cases concerning security related information or evidence, something that has clear implications for the targeted person’s right of access to the file. The amendments to the Rules of Procedure challenge the traditional role of the Court and, so it is argued, pose some challenges to its legitimacy.

This paper outlines the study of special knowledge use by defense attorney in criminal proceedings and its specificity. It is noted that defense effectiveness is directly determined by correct tactical decisions made within the criminal proceedings, namely structuring the defense algorithm to achieve the desired result. Selection of such tactical solutions depends, in particular, on the level of defender’s special knowledge or one’s awareness regarding its application by other authorized parties. The aim of this paper is to determine the specificity of special knowledge use in criminal proceedings by the defense attorney. Paper provides a linguistic and academic interpretation of the «special knowledge» concept. Authors note that it is necessary to take into account the purpose of its use (that is, not only for investigation, solving or prevention of criminal offenses, but also for the protection of rights, freedoms and legitimate interests of the suspect, accused and other subjects under Article 45 (1) of the Criminal Procedure Code of Ukraine) while defining the content of the specified concept. Attention is also paid to forms of special knowledge application by the defense attorney in criminal proceedings. It is emphasized that one may support the investigative process and justification of defense position based on the opinion of a specialist or expert with such justification grounded for the prosecution party. Author concludes that specificity of special knowledge use by the defense attorney in criminal proceedings stipulates: ability to directly apply it (independently), but with limits in comparison to pre-trial investigation bodies, and indirectly (involve a specialist or forensic expert (or request their opinions) via an investigator, inquirer, prosecutor, investigating judge, court to); use of knowledge backed by well-known constitutional principle «everything is allowed unless expressly prohibited by law» - authorized persons of pre-trial investigation bodies, though, use it only in accordance with a specific clause from a legal act of a different hierarchical level (based on legal force).