Monitoring the cases of E. Anisimov, A. Grechkovsky, E. Bondarenko (hearing on May 18, 2020)
On May 18, 2020, the Zavodskoy District Court of Zaporozhye, in an open hearing, continued to consider the criminal case on charges of: Anisimov Evgeny Aleksandrovich, a well-known Ukrainian businessman in creating a criminal organization, extortion against Zaporozhye businessmen with threats of violence and a number of other articles of Criminal Code, Bondarenko Elena Vasilievna in extortion committed by an organized group, as well as Andrei Anatolyevich Grechkovsky – in intentional murder related to the activities of the above organized group, and other crimes. The decision to combine the proceedings against E. Anisimov, as well as A. Grechkovsky and E. Bondarenko was made by the court at the hearing on April 16 (report for 04/16/2020).
In connection with the operation of the quarantine regime on the territory of Ukraine, monitoring of the observance of the right to a fair trial and other rights of participants in the proceedings provided for by the Convention for the Protection of Human Rights and Fundamental Freedoms was carried out by the ISHR observer using the official online broadcast of the hearing on the website of the Judicial Authority of Ukraine.
The course of the session. At this hearing the lawyer of the accused E. Anisimov – Krivko Yu.M. once again could not come. At the same time, the lawyer Krivko Yu.M. notified the court in writing that due to quarantine operating throughout Ukraine, he was unable to get to the court in the city of Zaporozhye and asked to postpone the hearing.
Earlier, the court issued a ruling (on 05/07/2020) and ordered the Regional Center for the provision of free secondary legal assistance to appoint a defender from the center of free legal aid to defend the accused E. Anisimov, and to ensure his appearance at the hearing on 05/18/2020 in the Zavodsky District Court of Zaporozhye.
The lawyer Morgun A.E., appointed by the Center for the provision of free legal assistance, appeared at the hearing. The accused E. Anisimov himself took part from the pre-trial detention center in a video conference mode.
The session began by considering the applications of the participants in the proceeding. The first to consider the petition of the lawyer of one of the victims for holding hearings in closed court. Having interviewed all the participants, the court decided to postpone the solution of this issue until a decision is made on the fact of the appointment to the consideration of the case.
Then the court went on to consider the application for recognition as a victim – according to a statement from one of the individuals claiming to have suffered from the activities of E. Anisimov in Zaporozhye. But the prosecutor V. Bychkov did not support this petition, arguing that he was not aware of the investigation of this episode.
At that moment, accused E. Anisimov turned to the court via video link. At first, the court did not give him the opportunity to read out the application, but, having conferred on the spot, court gave him the floor.
The essence of the petition of E. Anisimov was that he refuses to take part in the trial without his lawyer Krivko Yu.M., and so far he cannot take part in court hearings because of the quarantine announced by resolution of the Cabinet of Ministers of Ukraine No. 211 of 11 March 2020 “On preventing the spread of the COVID-19 coronavirus in Ukraine” (with the subsequent extension of the quarantine period), since the lawyer lives in the Kievsky region and is unable to come, on this basis E. Anisimov insists on reschedule the hearing.
Also, the accused E. Anisimov categorically disagrees that the court, contrary to his wishes and the fact that Anisimov has already concluded a legal assistance agreement with his lawyer, appointed him a free lawyer from the center of free legal assistance. He refers to the fact that the lawyer appointed by the court did not familiarize himself with the materials of the criminal case, and the accused cannot coordinate and determine the procedure and method of defense with him, being guided by the norms of part 1 of article 47 of the Criminal Procedure Code of Ukraine, according to which the defender is obliged to use the methods of protection provided for Code and laws, in order to ensure compliance with the rights, freedoms and legitimate interests of the accused.
At the same time, he referred to the norms of the Constitution of Ukraine, the Code of Criminal Procedure of the Law on Free Legal Aid, according to which he has the right to choose his own defense counsel, and the provision of free secondary legal assistance is terminated if the person uses the services of another defense counsel or involves another lawyer in the case. The accused himself attracted a lawyer Krivko Yu.M. for his defense and insists that this lawyer defend him in this proceeding, and refuses to participate in hearings without him.
Also, the accused asked the court to apply the rule of part 1 of Article 324 of the Code of Criminal Procedure of Ukraine, according to which, if the lawyer did not arrive in the hearing, in which the participation of the lawyer is mandatory, the court postpones the hearing and determines the date of the new session to enable the lawyer Krivko Yu.M. to appear in court in the city of Zaporozhye. Having submitted a petition, E. Anisimov stated that without a lawyer Krivko Yu.M. he will no longer answer any court questions, however, the court tried to continue the hearing and consider the petitions of other participants in the proceeding.
After that, the accused E. Anisimov left the room in the pre-trial detention center, from which the video conference was held with the court room and returned only to participate in the consideration of the postponement of the hearing.
Despite the objections of some of the victims and their lawyers, who insisted on the continuation of the hearing, the court, having conferred on the spot, decided to postpone the consideration of the case until May 29, 2020.
The court also announced that the petition of the prosecutor to extend the measure of restraint to the accused E. Anisimov, in the form of detention, will be considered on May 29, 2020.
The ISHR observer considers it necessary to note that according to the case law of the European Court of Human Rights, appointing a lawyer from a legal aid center instead of a lawyer with whom the accused has entered into an agreement on legal assistance, is a violation of the right to a fair trial and the right to defense, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Thus, in a judgment of the Grand Chamber of the European Court of Human Rights in the case of “Dvorski v. Croatia”, the following is noted: “… Theoretically, if a suspect receives the assistance of a qualified defense attorney, bound by professional ethics standards, instead of another defense attorney whom he would prefer to appoint, then this alone is not enough to conclude that the whole trial was unfair, with the proviso that there was no evidence sheer incompetence or bias…”
The International Society for Human Rights has repeatedly faced an attempt to attract “state” defenders not so much to ensure the right to defense of the accused, but rather to prevent a delay in the judicial review of the case (for example, the case of V. Yanukovich, the case of V. Muravitsky). Nevertheless, such a goal, in the opinion of the ISHR, cannot be considered justified if it jeopardizes one of the main components of the right to a fair trial – the right of a person to defend himself in person or through legal assistance of his own choosing (Article 6 of the European Convention on Human Rights).
Thus, the court’s decision to postpone the consideration of the case due to the inability of the lawyer to appear at the hearing for objective reasons cannot be considered one that delays the process of the consideration of the case.
Given the gravity of the crimes of which the three accused in this criminal process are charged, as well as the public outcry of the case, the International Society for Human Rights will continue to monitor this case.
The next hearing is scheduled for May 29, 2020.