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Research on the role of the investigating judge

During 2019 the ECHR specialists together with partners conducted research on the role of the investigating judge at the pre-trial investigation stage within the framework of the Human Rights and Justice initiative of the International Renaissance Foundation (presentation of the results of the study  – in the first quarter of 2020). The purpose of the study is to determine the role of the investigating judge in criminal proceedings and the efficiency of judicial control that he exercises. The research focuses on judicial control over the observance of human rights and freedoms at the stage of pre-trial investigation, which resonates with global trends in criminal justice. The investigating judge in Ukraine is responsible for the observance of human rights and freedoms-both pre-emptively (authorising investigative actions, etc.) and post-factum (reviewing complaints about the actions or omissions of the investigator, Prosecutor, etc.). In addition, the investigating judge may become proactive in certain cases: this is about his General duties to respect human rights (article 206 of the Criminal Procedure Code of Ukraine).

After all the legislative and institutional changes in Ukraine, the role of the investigating judge remains uncertain.

The Criminal Procedure Code does not systematise the powers of the investigative judge, and certain articles undergo changes, which significantly affects the the judges’ workload level and the quality of judicial control. For a certain time, the so-called “Lozovoy amendments” distorted the role of the investigative judge, obliging him to “technically coordinate” the decisions of the investigator, the prosecutors’ orders of expertise in criminal proceedings, and so on. This situation demonstrates the lack of understanding of the role of the investigative judge,  positioning him as an “annexe” to the prosecution, as a formal control over the legality of actions in particular. While studies have been conducted a desk review of legislation, statistics, scientific publications and quantitative and qualitative field tools applied: focus groups with investigators judges, the developers of the Code of Criminal Procedure, prosecutors, lawyers; a sampling of definitions of investigative judges regarding the election of preventive measures, seizure of property and the implementation of shared responsibilities for the protection of the rights and freedoms of the individual (in accordance with article 206 of the CCP of Ukraine), interviews with the selected relevant institutions, namely: the National school of judges of Ukraine, the Coordination centre for the provision of free legal aid.

The study allows us to see the existing systemic problems of judicial control of human rights during pre-trial investigation and offer specific recommendations, both organisational and legislative in nature, to address them. Development and implementation of standards, an innovative tool for implementing systemic changes in the field of criminal justice. In 2019 the ECHR specialists, together with partners from law enforcement agencies, as well as from various state and non-state organisations, within the framework of the Human Rights and Justice initiative of the International Renaissance Foundation, continued to work on the development and implementation of pre-trial investigation standards. Foreign experience shows that specific applied problems can be solved by creating pre-trial investigation standards that clearly define the roles of participants in criminal proceedings, define the main algorithms for their actions, allow them to resolve internal conflicts, and at the same time do not provide powers and do not oblige, but stay a General code of actions for law enforcement and justice agencies.

A team of about 20 people including investigative judges, prosecutors of different levels (PGO, SAP, Prosecutor’s office of the ARC), police investigators and NABU detectives, scientists, experts in the field of criminal justice worked on the development of standards. At the end of 2019, work began on their implementation (pilot projects) in some divisions of law enforcement agencies. Contact has been established with the Department of Procedural Guidance in criminal proceedings on torture and other serious violations of citizens’ rights by law enforcement agencies of the General Prosecutor’s Office of Ukraine for further implementation of pre-trial investigation standards.

 

Translation by Oksana Vashenko

Design by Olena Staranchuk

Andriy Orlean, Head of the Human Rights and Justice Programe