After conducting covert (investigative) investigative actions (hereinafter - NSDS) in criminal proceedings, investigators interrogate the persons involved in their conduct as witnesses. The interrogation of such persons in the procedural status of a witness is consistent with Part 2 of Article 256 of the Criminal Procedure Code of Ukraine: "Persons who conducted covert investigative (search) actions or were involved in their conduct may be questioned as witnesses."
During the pre-trial investigation, there are also situations when the investigator recognizes the interrogated witness as a victim. For example, a person involved in the control of a crime provides his own money for the mark. After the NSDC, the investigator confiscates the money during the search, and the person applies for recognition as a victim in order to obtain the right to file a civil lawsuit and receive compensation.
It seems to be a normal situation that does not cause difficulties during the pre-trial investigation. The question arises during the trial, as the procedure for the participation of a witness and a victim in a court hearing is different. So what are the rules for questioning a person in court: the rules for questioning a witness or a victim?
The role of the victim
In accordance with paragraph 2, part 3 of Article 56 of the CPC of Ukraine, the victim has the right during the proceedings to participate in the proceedings and direct verification of evidence. In fact, the victim can be in the courtroom throughout the court hearings, comment on the evidence and testify. At the same time, the witness is summoned to a specific court hearing in order to obtain evidence, after which, by default, the presiding judge must remove the witness from the courtroom. A witness may be left in the courtroom only at the request of the court (Part 15 of Article 352 of the CPC of Ukraine).
The victim is interrogated in court according to the rules of interrogation of a witness. However, the CPC of Ukraine does not provide for the right of the parties to criminal proceedings to determine the authenticity of his testimony, as provided for in the case of questioning a witness.
The role of the witness
The role of a witness is limited to giving court testimony. And the witness tells about events which he perceived directly. That is why he cannot take part in the examination of evidence during the trial in order to give the court unbiased testimony. In this regard, Article 346 of the CPC of Ukraine stipulates that before the trial, the presiding judge orders the removal of witnesses from the courtroom. The legislator has created such a rule in order to protect the consciousness of the witness from information that may affect his consciousness. The prosecutor's announcement of the indictment, testimony of the accused, examination of other evidence may affect the witness and force him to change the testimony given earlier.
In addition, the parties to the criminal proceedings have additional opportunities to determine the authenticity of the testimony of a witness (Part 1.2 of Article 96 of the CPC of Ukraine):
- ask the witness questions about his ability to accept the facts about which he testifies, as well as about other circumstances that may be important for assessing the reliability of his testimony;
- provide testimony, documents confirming his reputation, in particular, his conviction for knowingly false testimony, deception, fraud or other acts confirming the dishonesty of the witness.
- to ask questions about the testimony given earlier, which do not agree with his current testimony (Part 4 of Article 96 of the CPC of Ukraine).
Thus, the CPC of Ukraine opens wide opportunities for the parties to criminal proceedings to discredit a witness. Instead, the procedural status of the victim in this case will be beneficial for both the prosecutor and the victim: there will be no unnecessary questions from the defense.
Procedural conflict
Let's imagine the situation: during the trial of criminal proceedings under Part 3 of Article 368 of the Criminal Code of Ukraine, the court examines a video in which the accused receives from the person who conducted the NSDD, illegal benefit. The victim was present at the court hearing, who recorded the transfer of illegal benefits to a hidden camera and questioned about these circumstances as a witness.
The victim exercises his right to participate in the investigation of the NSDS materials and, together with other participants, reviews the video provided by the prosecutor. He then provides adjusted impressions based on what he sees in the video and what he hears from others. In this case, the person no longer tells about the events that he perceived directly.
However, if this person were interrogated in court in accordance with Article 352 of the CPC of Ukraine according to the rules of interrogation of a witness, he would not have the right to be in court, participate in the examination of evidence, listen to the explanations of the parties. It is also likely that the parties to the criminal proceedings could exercise their right to discredit the testimony of a witness.
The different procedural status of the victim and the witness determines the different procedures of interrogation. The possibilities of the parties to criminal proceedings in cooperation with such persons in court also differ. There is a procedural conflict: whether to remove the victim from the courtroom?
If removed, his right to participate in the proceedings is violated (Part 3 of Article 56 of the CPC of Ukraine). If left, the court will receive corrected testimony, and the defense will be deprived of the opportunity to discredit the person.
I believe that the presence at the hearing of the victim, interrogated at the pre-trial investigation into the circumstances of the NSDC as a witness, during the examination of evidence is contrary to the requirements of Article 346 of the CPC of Ukraine. According to this article, before the trial begins, the presiding judge orders the removal of witnesses from the courtroom. Therefore, such a person should be removed from the courtroom for at least the time of the examination of the NSDS materials.
Otherwise, such a person will in fact testify about the events that were the subject of the investigation during the trial. This will lead to a violation of the principle of ensuring the right to defense (Article 20 of the CPC of Ukraine) and the achievement of the task of criminal proceedings in terms of ensuring an impartial trial.
Dmitry Nikiforov, lawyer,
head of criminal law practice Bargen Law Firm
The article was published in the publication "Yurydychna Gazeta" dated May 29, 2018
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