CHALLENGING ISSUES OF LEGAL PROCEEDINGS BASED ON AGREEMENTS: ASPECTS OF JUDICIAL IMPARTIALITY

Abstract

The article is devoted to the study of challenging issues of legal proceedings under the framework of criminal proceeding based on agreements in terms of judicial impartiality. The article has analyzed the aspects of judicial impartiality in the context of the ECHR practice, in particular, regarding criminal proceedings based on agreements. The author has marked that court actions during a preliminary procedure are ambiguously regulated as, compared to p. 8, art. 469 of the CPC of Ukraine, it is stated the court immediately suspends the procedural actions and turns to the consideration of the agreement if the parties have come to it during the legal proceedings. However, the CPC of Ukraine doesn’t provide for such a procedural decision as the “suspension of legal proceedings”. Hence, it is essential to rely on p. 8, art. 469 of the CPC of Ukraine and p. 1, art. 334 of the CPC of Ukraine whereby materials of a criminal proceeding can be grouped into a single proceeding or separated into the individual proceeding through a judgment of the court, which examines them. Therefore, a judgment on the separation into the individual proceeding, which is based on agreements, should be rendered during the preliminary procedure. It is noted that the CPC of Ukraine does not regulate the issue of the need to transfer the materials of the separate criminal proceeding to another court composition or consider it by the same bench that decided on the separation. If the same composition of the court regards the separate proceedings in terms of an agreement, while delivering a judgment, it actually finds the availability of factual grounds to be justified for a guilty plea. In other words, even without formally deciding on the person against whom the proceedings are conducted in the general order and without going beyond the limits of the trial, the court has already formed a conviction on the proof of the factual facts of the criminal proceedings. The inner conviction regarding the factual circumstances of the criminal proceedings is already being formed, and therefore, there are reasonable doubts about the impartiality of the court in the subsequent consideration of the criminal proceedings in the general order. The research has argued that in case of criminal proceedings in the context of which an agreement is concluded with one of persons, who committed a joint criminal offense, the criminal proceedings in this aspect should be attributed to a separate proceeding by a court decision and transferred for autodistribution in the same aspect. Under the framework of other aspect (which doesn’t contain a concluded agreement), criminal proceedings must be heard by a predetermined composition of the bench. In case of non-vesting another bench with the consideration of the separate criminal proceedings, there will be grounds to note violation of the subjective criterion of judicial impartiality, as the court will pre-judge the issue of the event and corpus delicti, qualification and guilt, if the act was committed in complicity, through the consideration and approval of the agreement.