Monitoring of criminal proceedings of Avramenko Igor Aleksandrovich (hearing 05/15/2020)

On May 15, 2020, a hearing was held in the Zheltovodsky city court of the Dnipropetrovsky region on charges of Igor Aleksandrovich Avramenko in committing a criminal offense under Article 366 of the Criminal Code of Ukraine (official forgery). The indictment was submitted to the court on August 30, 2018. The International Society for Human Rights has decided to monitor the observance of the right to a fair trial in this proceeding (in the video broadcast mode) due to the complexity of the work of the ISHR observers during the quarantine period.

On November 1, 2018, the indictment was returned to the prosecutor by court order on the basis that it did not meet the requirements of the content and form, namely, the prosecutor did not give the circumstances of the injury to the victim. A request for the return of the indictment was filed by the defense.

In the appeal against the court decision on the return of the indictment, the prosecutor indicated that the crime under Part 1 of Art. 366 of the Criminal Code of Ukraine has a formal composition and provides for criminal prosecution without socially dangerous consequences, however, subject to the requirements of Article 55 of the Code of Criminal Procedure of Ukraine, a crime does not exclude the presence in such proceedings of a person who may be harmed, including moral. So, according to the prosecutor, the indictment does not contain any contradictions regarding the circumstances of the proceedings.

As a result of consideration of the appeal of the prosecutor, the court decision to return the indictment was canceled.

Later, a request for the return of the indictment was filed by the victim, who indicated that the indictment, which is the result of a preliminary investigation, was not set forth in full, it did not indicate all the components of the act to be established and proved at the hearing, in particular, the type and the amount of damage that was caused to him. The victim’s request was granted by the Zheltovodsky City Court. Thus, the indictment was re-returned.

But the prosecutor again filed an appeal and the Dnipropetrovsky Court of Appeal overturns the decision of the trial court.

At this hearing (May 15, 2020), the court did not begin consideration of the case, since:

  1. the victim did not appear at the hearing (although according to the court, he was duly notified of the hearing);
  2. the new prosecutor requested time to familiarize himself with the case file. The prosecutor, who previously represented the prosecution, was dismissed from the prosecution. According to the new representative of the prosecution, he became aware of his participation in the case the day before the court hearing after the end of the working day.

The defense did not object to the provision of time to the prosecutor and his request was granted. The trial was adjourned.

According to the observations of the representatives of the ISHR, staff changes in the prosecutor’s office may adversely affect the reasonable time for considering cases throughout Ukraine. Judges spoke about this negative trend at a regional working meeting in Kharkov. Court hearings must be postponed due to the failure of the prosecutors to appear. The reason for this was the certification procedure of prosecutors of regional prosecutor’s offices. The ISHR will continue to monitor this negative trend.

In addition, it should be noted that the indictment in this case was submitted to the Zheltovodsky city court of the Dnipropetrovsky region on August 30, 2018. Thus, for a year and 8 months now, the case has not been heard. Two consecutive returns of the indictment at the initiative of the defense and the victim significantly affected the time frame for the consideration of the case. The last decision of the court of appeal on the annulment of the decision of the court of first instance to return the indictment to the prosecutor was made on October 4, 2019. And only on January 17, 2020, the next hearing was scheduled, which, as can be understood from the lack of court decisions, did not take place. And on May 15, 2020, for the above reasons, the case cannot be heard again.

Regarding this issue, Art. 6 of the European Convention on Human Rights recognizes the right of every person prosecuted in a criminal case to receive a final decision within a reasonable time on the validity of a charge against him, more precisely, the achievement that the accused did not remain for a long time under the weight of the charge and that a decision was made on the validity of the charge (“Vemkhov v. Germany”, para. 18, “Julia Manzoni v. Italy”, para. 25, “Brogan and others v. United Kingdom” para. 65).

Case law of the ECtHR aggressively draws the attention of national courts “to a special duty to ensure that all parties involved in the trial do everything in their power to avoid unjustified delay in the consideration of the case” (“Vernillo v. France”). The provisions of Article 6 of the European Convention on Human Rights indicate that accused persons cannot remain in ignorance for too long about their fate (“Nakhmanovich v. Russia”, para. 89, “Ivanov v. Ukraine”, para. 71).

Representatives of the ISHR will continue to monitor this case if there is a technical possibility, namely the broadcast of court hearings on the judicial authority’s website.