Keep an eye on publicity
"In high-profile cases the task of the defense is to forget about resonance, to focus on the details and to do its work" OLEKSIY MENIV, PARTNER AT SHKREBETS & PARTNERS ATTORNEYS-AT-LAW, EMPHASIZES
— Anti-corruption policy was decisive for criminal law in 2016, but was this trend maintained in 2017?
— The "anti-corruption boom" continues in the field of criminal law: in support of this trend it is enough to recall the fact that last year the National Anti-Corruption Bureau of Ukraine (NABU) created territorial administrations in Kharkiv, Odesa and Lviv. I think that this trend will continue for some time, because the fight against corruption is an uncompromising demand on time and society. Anti-corruption policy only raises fears when its tools are not used for their intended purpose, but as a way to eliminate competitors.
— Which legislative anti-corruption mechanisms were put into practice and demonstrated their effectiveness?
— Anti-corruption mechanisms, such as limiting the application of provisions of Articles 69 and 75 (imposition of more lenient punishment or exemption from a sentence via probation) of the Criminal Code of Ukraine to "corrupt" crimes did not, I believe, contribute to the achievement of objectives set by the legislator. At the same time, the institution of agreements for admission of guilt, which is not anti-corruption in its nature, can be considered an effective instrument in combating corruption. Since the peculiarity of most corrupt criminal proceedings is that the suspect or accused has a wide range of opportunities that can negate the work of the prosecution, it is important to find a compromise in such cases.
As an attorney, I can't really assess the results of the work of anti-corruption mechanisms, i. e. mandatory declaration of income of officials and their relatives, restriction on employment and prevention of conflicts of interest. However, the quality of legislative regulations of these issues gives rise to a great many controversial situations, and hence, work, for us lawyers.
— How can the NABU’s operations be assessed in terms of effectiveness of the pre-trial investigation in so-called corrupt criminal proceedings?
— The biggest mistake in any dispute or contest is underestimating the opponent. Even when the NABU was being created, it was clear: the "life" of attorneys in criminal proceedings will not become easier. But based on my own experience, I can say: the NABU’s detectives showed themselves in their work as real professionals. The results of their work are qualitatively different from the "fruits" of the activities of other pre-trial investigation bodies, and they understand what they do and for what. It is necessary to pay attention to the attitude of detectives towards the defense: it is restrained, respectful and courteous.
Initially, the idea of creating NABU had both supporters and opponents, who are still debating on the Internet and in the media. I'm neither. In this question, the main thing is the professionalism of the people doing their job, everything else no longer matters.
— Recently, the issue of establishing the Supreme Anti-Corruption Court in Ukraine has acquired not only internal social and political resonance, but also international resonance. Your vision: does the domestic judicial system really need a new supreme specialized court, and how fundamental is its creation for business and foreign investors?
— It seems to me that the issue of creating the Supreme Anti-Corruption Court is not so much in the legal framework as in the political realm, and, thus, the decision regarding it depends primarily on the political situation. The formation of a new institution is not a problem in itself, it is more difficult to ensure its work in accordance with the principles that have been declared. Objectively, the creation of a new court will not bring the expected effect.
The conclusion drawn by the Venice Commission, announced in October last year, regarding draft laws on the creation of anti-corruption courts, previously registered in Parliament, contains rather interesting theses. Without minimizing the significance of conclusions of this authoritative expert institution, I do not share the principled position held by the Commission to create an anti-corruption court as an "independent and separate institution from the existing structure of judicial power." This approach contradicts the principle of separation of powers set out in the current Constitution of Ukraine.
— We have repeatedly witnessed high-profile criminal proceedings, many of which, as practice shows, have no prospects in courts. What are the features of protection in such cases, particularly when it comes to economic or official crimes?
— The work of defender in resonant cases is essentially no different from the work in other cases. The peculiarities of such cases are not in the work of the attorney, but in the work of the prosecution. Often, due to heightened public interest, the prosecution submits criminal proceedings for public debate, having previously formed a loud slogan, which quickly reaches the masses. As a consequence, negative public opinion is formed prematurely in relation to a defendant, and gaps and errors in the work of the pre-trial investigation bodies and prosecutor's offices are always easy to blame on corruption in courts.
As practice shows, the louder the slogan, the flimsier the position of the accusation and the evidence on which it is built, either vicious, or procured with significant violations of the provisions of the Procedural Law. In high-profile cases the task of the defense is to forget about resonance, to focus on the details and to do its job, first and foremost using the mistakes made during investigation, which lurk behind big words and figures, as well as the political expediency to imprison another "corrupt official".
The publicity surrounding a suspect can also make adjustments to the tactics used by the defense. In particular, public accusations require their refutation in public. In this case, the attorney is initially at a disadvantage because his/her job is to analyze the details. Unfortunately, the details are not always of public interest.
— Do the attorneys of defendants in high-profile criminal cases feel pressure from law-enforcement agencies? What forms does it take, and how can it be resisted?
— The pressure on attorneys in criminal cases is, to some extent, always present. The most odious case in our practice was the conducting of searches of attorneys, and it was a big operation with simultaneous searches at five addresses: in two office premises and three apartments — at the place of residence of attorneys. As banal as it sounds, but the pretext for conducting the searches was the search for client documents transferred to the law union under an agreement on rendering legal assistance, which relate to attorney-client privilege. At the same time, the same investigating judge adopted the orders to grant a permit to conduct searches at all five addresses, and each order stated that the documents were available at each address.
Systematic impartial statements made by representatives of the Prosecutor General's Office of Ukraine in respect of some attorneys or advocacy in general can be considered as pressure from law-enforcement agencies.
The problem of identifying the attorney with the client is also among the most urgent ones. Unfortunately, we are confronted with this not only from people without a clear idea of the Bar’s functions, but also (and even first and foremost) from law-enforcement agencies.