Let’s Fight Racism Together

11.12.2008

Referral of the Case to the Court

Filed under: Uncategorized — legalantiracism @ 08:50

After the investigation of the case is finalized in  the form of a conclusion to indict the accused, the investigator hands over the materials of the case to the prosecutor. The prosecutor reviews the materials and checks the compliance of the investigation process with the legal requirements. If the prosecutor approves the conclusion to indict, he reefers the case to the court. The registry of the court upon the receipt of the case, assigns it to a particular judge. The judge, after he  has received the materials of the case, will carry out the preliminary examination. In the course of such an  examination he/she takes the decision if the case satisfies the legal requirements to be admitted for  judicial consideration. The preliminary consideration is carried out by the judge unilaterally. The participation of the prosecutor in these preliminary proceedings is required. However, the presence of the other parties to the case, e.i. the accused, the victim and their representatives, is not obligatory. Nonetheless, according to Article 240 of the CPC of Ukraine the notification of all the parties to the case on the date and time of the preliminary consideration of the case by the court is required. Practice, however, shows that the requirement of this Article is often neglected and the victim as well as the accused does not receive such information.

Note! Although it seems that this stage of the judicial proceedings has only a «formal» meaning, it is nonetheless very important for the protection of your interests as a victim. Thus, if your opinion regarding the racist motive of the crime was disregarded during the pre-trial investigation, then at this stage you can file a motion for the change of the qualification of the crime to the one providing for stricter punishment for the perpetrator than is defined by the conclusion to indict.

Thus, if in your opinion the motive of the crime committed against you has been  racial, ethnic or other hatred, then indicate in the motion for the change of the classification of the crime for the plea to take this circumstance into account as aggravating according to the Article 67 Para 1(3) of the CC of Ukraine.

If you trace the features of the crime defined by Article 161 of the CC of Ukraine apart from the one it was classified under by the investigator, then file a motion to the court to classify the crime as the accumulation of crimes under Article 161 of the CC of Ukraine and the other Article of general criminal character. Remember that any motion should be reasonable! (The template of the motion on the alteration of the classification of the crime is found in the Attachment №17).

In case you consider it necessary to take the action outlined above, then you should stay alert and follow the progress of the case within the criminal proceedings. When the case is referred to the court, visit the court’s registry, find out the surname of the judge to whom your case has been assigned, try to find out the date and time of the preliminary consideration of your case from the court’s registry.

After the judge during the preliminary consideration of the case decides to designate the case for the judicial examination, then the measures defined by law and aimed at the preparation of the case for such an examination are being taken. The judicial examination of the case starts with the preparatory part of the hearing. During this all the preparatory measures are being finalized. In particular if the victim has not filed a civil claim (for compensation for moral and pecuniary damage) before he/she can do it during the preparatory part of the judicial hearing. You can find the template of the civil claim in the Attachment №12. This stage is followed by the judicial investigation. Note, that as soon as the judicial investigation has started you would not be able to file a civil claim any more.

The rights of the victim during the judicial examination of the criminal case are defined by Article 267 of the CPC of Ukraine. It, among other things, provides that a victim has a right to give testimonies; file the motions; express his opinion regarding the motions of other parties to the case; provide explanations regarding the circumstances of the case which are being examined; adduce the evidence; ask questions from the witnesses, expert, specialist and other attendees of the hearing; take part in the inspection of the place of the crime, exhibits, documents. The victim also has a right to take part in the forensic debates. Moreover, when the cases under Articles 125 and 126 Para 1 are considered the burden of supporting the charges lies on the victim him/herself.

When cases under other Articles are considered and if the prosecutor refuses to support the charges, then the victim still has a right to demand the continuation of the consideration of the case. In such a situation the burden to support the charges lies on the victim him/herself.

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