Some issues of ensuring the right to a fair trial in special criminal proceedings

It is indicated that the right to a fair trial is a conventional and procedural right of a person accused of committing a criminal offense. An element of this right is the right to have the case heard by an independent and impartial (impartial) court established by law (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 21 of the Criminal Procedure Code of Ukraine). This article is devoted to the study of the peculiarities of the implementation and enforcement of the right to a fair trial in special criminal proceedings. The focus is on the right to have a case heard by an independent and impartial court, as established by law in criminal proceedings based on agreements and in criminal proceedings in absentia. The article provides a detailed analysis of the practice of the Cassation Criminal Court on these issues and presents doctrinal arguments regarding the existing legal positions. It is concluded that in criminal proceedings based on agreements in situations where one of the defendants has entered into a plea agreement approved by the court, and the other defendant or defendants are being tried in the ordinary manner, an impartial observer may have doubts about the impartiality of the court if the entire court or some of the judges are participating in both proceedings. The presence/absence of doubt will depend on the connection between the actions of the defendants, the specifics of the criminal offense and the factual circumstances, as well as the nature of the description of the factual circumstances and the involvement of the uncondemned person in the judgment based on the agreement. Accordingly, in the event of a challenge or such arguments in appeals and cassation complaints, all these circumstances must be assessed in the light of the legal positions of the ECHR in the cases of Mucha v. Slovakia and Meng v. Germany. It is argued that in proceedings in absentia, the defense counsel, in accordance with Part 4 of Article 46 of the CPC of Ukraine, may exercise the procedural right of the accused, whom he or she is defending, to initiate a collegial review of the criminal proceedings in the court of first instance in accordance with Part 2 of Article 31 of the CPC of Ukraine, if the criminal proceedings are conducted in the absence of the accused (in absentia). Depriving him of this opportunity makes the defendant’s right to a collegial court in proceedings in absentia illusory and threatens the effectiveness of the defense.