of October 5, 2012 No. 223-1446/0/4-12
To chairmen of Appeal Courts of areas of the cities of Kiev and Sevastopol,
Appeal Court of the Autonomous Republic of Crimea
About some questions of procedure of legal proceedings in judicial proceedings in the first instance according to the Criminal Procedure Code of Ukraine
In connection with the introduction on November 19, 2012 owing to the Criminal Procedure Code of Ukraine of April 13, 2012 (further - the Code of Criminal Procedure), considering item 10 of the Section XI "Transitional provisions" of the Code of Criminal Procedure, for the purpose of identical application of the penal procedural legislation by all courts of law and in order to avoid ambiguous interpretation of rules of law during implementation of legal proceedings in judicial proceedings in the first instance courts should pay attention to the following.
1. In time intended for legal proceedings the judicial manager, and in case of its absence - the court session secretary (the p. 4 of Art. 74 of the Code of Criminal Procedure), invites participants of criminal proceedings in courtroom, announces entrance of court to courtroom and suggests all attendees to get up. After that the chairman opens judicial session and declares the attendee consideration of the corresponding criminal proceedings, reports the name (number) of criminal proceedings, and also legal qualification of criminal offense (crime or criminal offense) of which making person, with indication of the article (part of Article) of the relevant law on criminal liability is accused.
The chairman shall be convinced whether the person accused received the copy of the indictment or the petition for application of enforcement powers of medical or educational nature. If did not receive, then for providing to the person accused of its right of defense (acquaintance with the specified document) the court postpones judicial session.
Court session secretary:
- reports on court which of the participants of judicial proceedings called and the informed persons, arrived to judicial session (enters surname, name, middle name, the place and birth date, the procedural status of person), identifies their personality (checks the documents proving their identity and also the fact of availability of family relations with the person accused - for legal representatives, компетентностьдля the translator and so forth). It should be noted that the valid data of persons concerning which security measures are applied according to provisions of the Law of Ukraine of June 11, 2009 "About safety of persons who are taking part in criminal trial" in judicial session are not announced;
- checks powers of defenders and representatives. In particular, powers of defenders which amount cannot exceed five people for one person accused and representatives (if the representative is person who has the right to be defender in criminal proceedings), are confirmed by the certificate on the right to occupation lawyer activities in Ukraine and the order of the established sample, the order of the center for provision of free legal assistance or the contract with the suspect, the person accused, person concerning whom application of enforcement powers of medical or educational nature, person concerning whom consideration of question of issue to foreign state (extradition) is provided, and according to Art. 51 of the Code of Criminal Procedure - with other persons acting in their interests according to their petition or in their further consent is provided.
If the victim, the civil claimant or the civil defendant is the legal entity, powers of the representative in criminal proceedings prove to be true: the copy of constituent documents of the legal entity - if the representative of the victim, the civil claimant or the civil defendant, is the head of the legal entity or other person authorized by the law or constituent documents; the power of attorney - if the representative of the victim, the civil claimant or the civil defendant, is the worker of the legal entity who is victim, the civil claimant or the civil defendant (articles 58, of 63 Codes of Criminal Procedure);
- finds out whether judicial challenges and messages are handed to those persons who did not arrive to judicial session, and reports the reasons of their non-arrival if they are known. The court shall be convinced of receipt of criminal proceedings by participants who did not arrive to judicial session, judicial challenge and the message and therefore the judicial manager shall check availability of assurance of receipt by person of the agenda about challenge (message) or acquaintance with its content in other way. It should be noted that proper assurance of receipt by person of the agenda about challenge (message) or acquaintance with her (his) content in other way according to the p. 3 of the Art. 111, Art. 136 of the Code of Criminal Procedure is list of person about receipt of the agenda (message), including on the post notice, delivery video to person of the agenda (message), any other data confirming the delivery fact to person of the agenda about challenge (message) or acquaintance with her (his) content including confirmations of their obtaining, face the corresponding letter of e-mail if the agenda (message) was sent to the e-mail address of the participant.
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