Let’s Fight Racism Together

12.12.2008

Pre-trial Investigation (Rights of a victim during the pre-trial investigation)

Filed under: Uncategorized — legalantiracism @ 08:47

After you have been recognized as a victim in a criminal case, the official of a preliminary investigation agency, investigator or a judge is required to inform you of your rights in the case. These rights are prescribed by Article 49 of the CPC of Ukraine. In particular, you as a victim have a right to give testimonies on the case. You and your representative (if available) have a right to file the motions both before the finalization of the pre-trial investigation and afterwards. The procedure for the implementation of those rights is considered below.

At the pre-trial investigation stage, according to the CPC of Ukraine, both the victim and his legal representative, unlike the accused, do not have a right to see the materials of the case, before investigation has been finalized.

In the course of the pre-trial investigation, an investigator may call you for interrogation. The law provides that the procedure of interrogation of the victim in the criminal proceedings is the same as the one concerning witnesses (Article 171 of the CPC of Ukraine). According to the established procedure, the victim is summoned to the interrogation by a subpoena sent to him/her via mail to the address of the victim’s residence (Article 166 of the CPC of Ukraine). Note! Article 383 of the Criminal Code of Ukraine provides for criminal liability for intentional false testimony.

It is also important to note that testimonies provided after the initiation of a criminal case (in the course of the pretrial investigation) are given more weight during the judicial proceedings than the report on crime provided by you in the very beginning. Thus, once more, carefully and accurately expose all the circumstances of the incident during the interrogation(s). See Section «Documenting a crime» for your reference.

The investigator will ask you questions during the interrogation. Note that he does not have a right to ask questions which readily provide answers for themselves (Article 167 of the CPC of Ukraine). If you think that the investigator failed to ask you about some details, which you consider important to present an accurate description of all the circumstances, then don’t hesitate to take initiative and inform him of all the particularities. Furthermore, if you consider that a crime against you has been motivated by racism, be sure to inform the investigator about this. Give him/her a picture of the circumstances which led you to such a conclusion. Draw the attention of the investigator that these factors should be dully taken into account in the classification of the crime (for example the crime should be classified as an accumulation of crimes, defined by Articles 161CC of Ukraine and another provision of the general criminal character, where the latter should be applied with due regard to the Article 67 Para 1(3) of the Criminal Code of Ukraine.

Also remember that you have the  right to use an interpreter during all procedural actions of the investigation! (Article 128 of the CPC of Ukraine)

The results of the interrogation are documented in the Protocol. The investigator will provide you with the protocol for review and signature. Read it carefully (preferably with the interpreter’s assistance) before you sign it. If in your opinion some details are omitted in the protocol and misinterpreted, then insist on making the amendments to the protocol.

Remain calm during the interrogation; even if it seems to you that the investigator is hostile to you or preconceived. The mechanisms of complaining on the actions of the law enforcement agencies will be further considered.

The investigator may also invite you to participate in some other investigative measures, particularly in those, which are made upon your request.

Pre-trial investigation is finalized when the investigator 1) draws up a conclusion to indict; or 2) issues a resolution on closure of the criminal case (Article 212 of the CPC  of Ukraine).

Resolution on closure of a criminal case should contain a statement of the reasons to close the case. The authorities shall send you, as a victim, a copy of such a resolution by mail (Article 214 of the CPC of Ukraine). You have a right to appeal against such a resolution to the local prosecutor’s office according to the place where the investigation was carried out (Article 215 of the CPC of Ukraine). The decision of the police to close the case may also be appealed against at the local court (Article 236-5 of the CPC of Ukraine). If the investigation has been carried out by the prosecutor’s office (for example under Article 161 of the CC of Ukraine), then such a resolution may be challenged at the senior prosecutor’s office (Article 236 of the CPC of Ukraine) as well as in the court (Article 236-5 of the CPC of Ukraine).

The template of the appeal against the decision to close the case at the prosecutor’s office may be found in the Attachment № 6 hereof. The prosecutors’ offices (both district level Prosecutor’s Office as well as the one of senior level have an obligation to consider the relevant appeal and provide a motivated answer within three days upon receipt of the appeal. (Article 235 of the CPC of Ukraine).

Also pay attention to the fact that the appeal against the resolution of a pre-trial investigative body, investigator, or prosecutor on the closure of the case can be also lodged by you as a victim, or your legal representative at the local court according to the place, where the body, which issued it is located. See Attachment № 7 for the template of the appeal to the court. Note that such an appeal shall be filed within seven days after you have received a copy of the resolution or the notice of the prosecutor that your appeal was dismissed (Article 236-5 of the CPC of Ukraine).

Thus you can appeal against the resolution on closure of the case, if it is issued by the police, to both the prosecutor and the court. It is advisable to use all available mechanisms simultaneously.

Note that if you or your legal representative appeals to a court against such a resolution, then the judge is obliged to inform you about the time for the consideration of your appeal. You (your legal representative) have a right to take part in the consideration of your appeal and also provide reasons.

If your complaint is dismissed by the local court, you have a right to challenge this decision through the appellate review.

In case your appeal is granted by the court or prosecutor, the proceedings on the case shall be renewed by the respective resolution (Article 216 of the CPC of Ukraine).

Finalization of the pre-trial investigation by means of the conclusion to indict the accused.

In this case, the investigator recognizes the case to be due for referral to the court. In such a case, when the pre-trial investigation is over, the investigator shall inform you as a victim or your legal representative (if available). Starting from the moment of such a notification, you and your legal representative have a right to review the materials of the case. To be able to do this, you would have to file a motion requesting for permission from the investigator either orally or in a written form (Attachment №15). While reviewing the materials of the case, you have a right to take notes from them. After familiarizing yourself with the materials, if you consider that some facts have not been duly investigated or have been omitted, you can file a motion for an elaboration of the investigation (Attachment №16).

Filing a motion

The main addressee of the motions at the pre-trial investigation stage as well as after its finalization (but before the case has been referred to the Court) is the investigator. He resolves all the motions unilaterally and takes all the decisions on the direction and methods of the investigative actions and fully bears responsibility for the implementation of these activities. Apart from the investigator, the motions may also be addressed to the head of investigation department.

You can file a motion to conduct any of the investigative activities, stipulated by the Criminal Procedure Code, e.i.:

interrogation;

confrontation;

submission for identification (of a person or object);

search;

seizure (of exhibits);

detention of correspondence and information retrieval;

field observation, observation of premises, objects or documents;

simulation of the circumstances;

expertise (acquiring answer to the question which requires special knowledge)

If the crime in your opinion is racially motivated, you can file a motion to carry out investigative measures aimed at proving the existence of such a motive. It is important for such a motion to be reasonable and substantiated.

(Some written motion templates are found in the Attachments №13, №14 and 16).

Motions are to be considered and resolved by the prosecutor within three days, after he has received one. The investigator has to support the motion for ascertaining substantial circumstances of the case. The investigator is required to inform the pleader about the results of the motion after it has been considered. The grounds for rejection shall be substantiated by the investigator in the form of a resolution.

Civil claim

If you have suffered any moral and/or material damage as a result of the crime, you can file a civil claim within a criminal trial. The civil claim in such a case will be considered in line with the criminal case.

The compensation for the damage caused by a crime can be claimed in the course of the preliminary investigation, pre-trial investigation as well as at the beginning of the judicial hearing. However, it may not be filed within the criminal proceedings after the judicial investigation has started. The right to file a civil claim in a criminal trial and the specifics of its application shall be explained to you by the investigator. He/she should document the fact of informing you on this right by the protocol of interrogation or by sending such a notice to the victim by mail (Article 122 of the CPC of Ukraine).

If you claim compensation for moral and pecuniary damage at the pre-trial investigation stage, then the investigator either recognizes you as a civil claimant in the case or reasonably rejects you in recognition. The recognition of a person as a civil claimant in the criminal case at this stage should be confirmed by a resolution from the investigator (See Attachment  № 11).

However, even the issuance of such a resolution does not mean that a statement of a claim for compensation for moral and/ or material damage shall not be filed by you (your legal representative) to the court directly. You will be able to do it any time before the judicial investigation starts.  Statement of claim will only be considered by the court together with the criminal case.

List all the property you have lost as a result of the incident. Indicate the approximate price of each lost item (pecuniary damage). Provide the court with the evidence of your losses, e.g. bills, receipts from the purchase of some goods you have lost, doctors prescriptions etc. You also can provide contact information of people, who can testify in court and confirm the nature and the value of your losses.

You can also claim a compensation for moral losses. The evaluation of the moral damage is carried out by the victim him/herself. It should be based on the evaluation of gravity of pain and suffering you had to live through due to the crime. The factors for the evaluation might be actual suffering, disturbance of the way of life, psychological trauma etc. The evidence of the moral damage might be the medical certificates, photos, certificates on consultations of psychologist, as well as witness testimonies and others. Template of the statement of claim for compensation of moral and/or material damage can be found in the Attachment № 12.

Moreover even if in the beginning of the proceedings of the case you refused to make claim over any damage and this is reflected in the protocol, you can still file a civil claim to the court afterwards. Furthermore you can also file a statement of claim for compensation of damages separately from criminal proceedings. Note! If you have first filed a statement of claim separately and your claim was dismissed by the court, then within the criminal trial you cannot file a claim any more on this case.

A civil claimant in the criminal proceedings is exempted from the obligation to pay court duties.

The closure of the case by virtue of Articles 7 and 7-1 of the CPC o Ukraine (changed circumstances, active repentance, admission to bail, expiry of period of statute limitations etc.) does not relieve one from the obligation to pay compensation for punitive and pecuniary damage.

If in the course of the criminal proceedings you face the unlawful actions of the law enforcement officials

(Preliminary investigation agency officer(s), investigator(s), or prosecutor),

namely:

1) Obstruction in the enjoyment of your (your legal representative’s) rights prescribed by the law (See Section Pretrial investigation);

2) Any other violation of the provisions of the criminal procedure legislation;

3) Blackmailing;

4) Insult of your dignity etc.

at any of the stages of the criminal proceedings,

You have a right to complain against such actions to the prosecutor and the court, senior official within the agency at which your case is being investigated.

We advise you to complain simultaneously to both the court and the prosecutor.

Indicate the name and the position of the officer (in case of any contact with civil population, any law enforcement official is obliged to provide this information). In case you don’t know his/her name, indicate his/her place of work and the relationship with you, as a party to  a criminal case under the investigation.  Describe the substance of the violation of laws of Ukraine by him/her and the circumstances of such an  incident, indicating its date and time.

Note that any unlawful restrictions by the investigator(s) constitute the racial discrimination if imposed on you solely because of the perceived race, physical appearance, ethnic origin etc. Blackmailing, threats and insults can also constitute racial discrimination.

If you believe that any action of the police officer was based on differentiation between you and other persons, because of your perceived race, physical appearance, color of your skin etc. indicate this in your complaint.

According to Article 234 the complaints on the actions of the investigator(s) shall be considered by the prosecutor within the period of three days, after such a complaint has been received by the prosecutor. The complaint on the actions of the prosecutor, filed to the senior prosecutor shall also be considered within the same period of three days upon receipt.

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