Monitoring of the case of Anisimov E.A. and others (session 04.16.2020)
On April 16, 2020, in the Zavodskoy District Court of Zaporozhye, an open court session was held on charges of Yevgeny Alexandrovich Anisimov, a Ukrainian businessman, of creating a criminal organization, extortion with threats of violence, illegal possession of weapons and a number of other articles of the Criminal Code.
In connection with the introduction of quarantine on the territory of Ukraine, ISHR observers monitored the observance of the right to a fair trial using the official online broadcast on the judicial authority’s website.
The course of the hearing.
At the preparatory hearing the defender of the accused – Krivko Yu.M. failed to appear (as it became clear from the broadcast), having sent by mail a request to postpone the hearing of the criminal proceedings in connection with quarantine and the inability to appear at the hearing from the Kiev region.
The lawyer of one of the victims, A. Artemov considered it appropriate to raise the issue of appointing a new defense counsel to the accused Anisimov Evgeny from among the lawyers of the Regional Center for Free Secondary Legal Assistance. The prosecutor, the victims and their representatives also supported the idea of attracting another defender.
The accused himself objected to the application.
Having heard the opinion of the participants in the proceeding, having examined the materials of the criminal proceedings, the court came to the following conclusion: counsel of the accused, Krivko Yu.M., repeatedly failed to appear at the preparatory hearing and lives in the Kiev region, in connection with the introduction of quarantine on the territory of Ukraine, one of the measures to prevent and spread the coronavirus in Ukraine is the closure of passenger traffic between cities; there is a likelihood of non-arrival of counsel for the next preparatory hearing. The court also emphasized that at the last court session the accused E. Anisimov informed the court that before the start of the preparatory court session he would conclude an agreement with another counsel who would defend him, but the new defender did not appear at the preparatory court hearing.
In accordance with Part 1 of Art. 49 of the Code of Criminal Procedure of Ukraine, a prosecutor or a court is required to ensure the participation of a defense counsel in criminal proceedings in cases where, in accordance with the requirements of Art. 52 of the Code of Criminal Procedure of Ukraine, the participation of a defense counsel is mandatory, and the accused did not attract a defense counsel.
According to Part 1 of Art. 52 of the Code of Criminal Procedure of Ukraine, the participation of a defense counsel is mandatory in criminal proceedings in relation to particularly serious crimes.
Considering the prosecutor’s request for a lawyer for the defense, the court took into account the circumstances of the case, in particular, the increased public danger of criminal offenses and the significant public outcry, the mandatory participation of the defense attorney in criminal proceedings in relation to particularly serious crimes, and concluded that it is advisable to bring a defense attorney in criminal production for the purpose of the defense.
In accordance with the requirements of Part 2 of Art. 49 of the Code of Criminal Procedure of Ukraine, the court in the deliberation room issued a ruling to appoint a lawyer to E.A. Anisimov and to ensure his arrival at 10:30 am, 05/07/2020 in the Zavodsky district court of the city of Zaporozhye to provide protection as intended.
However, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) recognizes that everyone charged with a criminal offense has at least the right to defend himself in person or through legal assistance of his own choosing.
The relevant provisions are guaranteed by Article 59 of the Constitution of Ukraine: “Everyone has the right to legal assistance … Everyone is free to choose a defender of their rights.”
The ECtHR reiterates that, although it is not absolute, the right of everyone charged with a criminal offense to the effective assistance of a lawyer is one of the main features of a fair trial (“Krombach v. France”). A person accused of committing a criminal offense who does not wish to defend himself on his own should be able to resort to free legal assistance (“Hanževački v. Croatia”).
The principle of “right to defense” is in line with international human rights standards, which underlie the principle of a fair trial, the main purpose of which is to protect the accused from pressure from the authorities. It also aims to prevent miscarriages of justice and to fulfill the objectives of Article 6 of the Convention, especially the equality of parties to the investigation or prosecution and the accused (“Salduz v. Turkey”, “Bykov v. Russia”, “Pishchalnikov v. Russia”).
The second question raised by the court was concerning the criminal proceedings of Andrei Anatolyevich Grechkovsky and Elena Vasilievna Bondarenko on charges of extortion as part of an organized group, grievous bodily harm and drug possession. The case is at the stage of preparatory proceedings. An issue of combining the above criminal proceedings and criminal proceedings on charges of Evgeny Anisimov needs to be resolved. A measure of restraint to the accused Grechkovsky Andrei and Bondarenko Elena was not select.
The prosecutor requested a decision at the discretion of the court. All the accused and the defenders of the accused objected to combining these criminal proceedings. Representatives of the victims Gladky D.V., Soloviev V.M., Artemov A.I. supported the opinion of the prosecutor. The victims themselves did not object to the unification of criminal proceedings.
Having heard the opinion of the participants in the trial, having examined the materials of the criminal proceedings, given that the charges brought by the accused in the criminal proceedings for a number of episodes are identical in essence, the same victims and witnesses participate in both trials, the panel of judges concluded that it would be expedient to combine criminal proceedings on charges of Anisimov E., Grechkovsky A. and Bondarenko E. in one proceeding with the aim of a full, comprehensive and objective consideration of criminal proceedings.
ISHR would like to note that this criminal proceeding has been in the court of first instance since April 08, 2019, but due to the self-recusation of judges who participated in the pre-trial investigation stage and the inability to assemble a panel of judges in full force, it was transferred from the Ordzhonikidze district court of Zaporozhye to the Zhovtnevy District Court of Zaporozhye, and from February 17, 2020 the criminal proceedings against Evgeny Anisimov were submitted to the Zavodskoy District Court of Zaporozhye.
In addition, in this session, quarantine norms were observed by all participants in the trial, except for the accused Anisimov Evgeny, who was without a protective mask.
The next hearing is scheduled for May 7, 2020.
Given the gravity of the crime, as well as the existence of possible violations of the right to a fair trial in this proceeding, ISHR will continue to monitor this case.