Safeguards under Criminal Procedure Law of Ukraine
The presumption of innocence determines the scope of the rights and guarantees provided by the Constitution of Ukraine and criminal legislation to someone who is being prosecuted[554]. In this context, the functions of law enforcement agencies and prosecutors are related to proving a person's guilt in committing a criminal offence. Considering that justice for the alleged conflict-related crimes in Ukraine is administered based on general criminal procedure rules, alleged perpetrators of grave international crimes have the same possibilities to protect their rights in criminal proceedings as any other individual facing criminal accountability.
Ukrainian criminal procedure law outlines fundamental rights and guarantees for all participants in the process. The legislation distinguishes two statuses for the perpetrator: a suspect (a person who has been notified of suspicion as prescribed by Articles 276–279 of the CPCU, or a person detained on suspicion of committing a criminal offence, or a person in respect of whom a notice of suspicion has been drawn up but not served due to failure to establish the whereabouts of the person, provided all measures have been used as specified by the CPCU to serve the notice of suspicion) and an accused (a person whose indictment has been submitted to the court as prescribed by Article 291 of the CPCU)[555].
Such persons in criminal proceedings have the right to:
- know of the essence of the criminal offence and the contents of the notice of suspicion or charge against them;
- receive information about their rights, possibilities to protect their rights and the available procedural mechanisms;
- be represented in the proceedings by a defence counsel and receive qualified legal aid;
- play an active role in procedural actions and protect their rights in the course of the investigation. For example: to remain silent as regards the suspicion or charges against them or refuse to answer questions at any time; to provide explanation or testimony about the suspicion or charges, or refuse to provide those at any time; to collect and submit evidence to the investigator, prosecutor, or investigating judge; during the procedural actions, to ask questions, submit comments, and raise objections to the conduct of the procedural actions that are recorded in the protocol; to file a request to undertake specific procedural actions, security measures for themselves, their family members, close relatives, property, residence, etc.;
- have access to the criminal case file and to receive copies of procedural documents; and
- appeal against procedural decisions[556].
In addition to this, the accused has a broader set of procedural rights since they acquire this status at the trial stage and, accordingly, should be able to defend their rights before the court. These include, for example, the right to: participate in the cross examination of the prosecution witnesses during the trial or request their examination, as well as request the summoning and examination of defence witnesses under the same conditions as prosecution witnesses; collect and submit evidence to the court; express their opinion on motions of other parties during the trial; deliver statements during court debates, etc[557].
When notified of the relevant procedural status, the suspect or accused must also receive a reminder as to their rights and responsibilities, which is mandatory according to the CPCU[558].
When foreign nationals face criminal prosecution, they have additional procedural rights to:
- use their native language, receive copies of procedural documents in their native language or any other language they are proficient in, and, if necessary, use the services of an interpreter at the expense of the state;
- meet with a representative of their country's diplomatic or consular mission, which the administration of the detention facility is obliged to provide[559].
