Monitoring the trial of A. Chibirdin (court hearing of January 30, 2019)
On January 30, in the Suvorovsky District Court of Odessa, a hearing was held in the case of the lawyer Alexander Chibirdin, who is charged with part 2, 4 of Art. 187 (robbery committed by prior conspiracy by a group of persons aimed at seizing property on a large or especially large scale), part 4 of Art. 190 (fraud) of the Criminal Code of Ukraine.
It turned out that the court assigned A. Chibirdin a bail in the amount of more than UAH 700,000 (the amount exceeds the limit foreseen by the sanction of the norms of the Criminal Code of Ukraine), the bar self-government body (NAAU) managed to collect the necessary money and A. Chibirdin left the pre-trial detention center before the new year.
At this hearing, a number of motions from the defense were examined. So, the lawyers filed a statement on the challenge of the judge motivating it by the statement that at the previous hearing the representative judge V. Poznyak read out the operative part of the court decision, which was not executed in writing and was not signed by the panel members, which, according to the lawyer, is confirmed by the audio recording of the court session. Among other things, the absence of signatures of the whole board is confirmed by the report of the auto distribution, according to which one of the members of the board was not part of it on the day of the court hearing. In other words, the decision was made by an incompetent court, that is, a court created not by law. “Law”, within the meaning of Article 6 § 1 of the Convention, includes legislation governing the establishment and competence of the judiciary (“Lavents v. Latvia”, p. 114; “Richert v. Poland”, p. 41; “Jorgić v. Germany”, p. 64), as well as any other provision of the national legislation that, if violated, will make it illegal for one or more judges to participate in the proceedings (“Gorgiladze v. Georgia”, p. 68; “Panjikidze and others v. Georgia”, p. 104). The expression “created by law” covers not only the legal basis of the very existence of the “court”, but also the implementation by the “court” of specific rules that govern its activities (“Gorgiladze v. Georgia”, p. 68), and the determination of the composition of the court in each case (“Posokhov v. Russia”, p. 39).
For example, in paragraph 115 of the “Lavents v. Latvia” case, the ECtHR decided that the composition of the court did not comply with the law, as two judges, in accordance with the law, could not participate in the consideration of the case.
Further, the lawyers challenged Judge Shkorupeev, arguing that he was not a member of the board (see above). It is worth noting that after the challenge was announced, Judge Shkorupeev did not behave in his inherent restrained manner. So, the judge emotionally asked the lawyers not about the reason for the challenge, but about whether they appealed the court decision, which they consider framed with procedural violations. Note that the issue was definitely inappropriate, since the decision referred to is not subject to appeal.
The court did not satisfy both petitions. The ISHR experts are not clear on the motivation of the court in making these decisions, since only the operative part was read.
The accused himself filed two petitions: the first about returning a certificate of the right to practice law and the second about the possibility of traveling to Kiev in order to stay with a child while he is undergoing medical treatment. These two applications were granted by the court.
The prosecution petitioned for an extension of the measure of restraint to all the accused (although A. Chibirdin was bailed out, there are defendants in the proceedings who are still in jail today). We emphasize that the petition, which concerned the extension of the measure of restraint in the form of detention in custody, completely duplicated the one that the ISHR observer heard at the previous session. This fact is cause for concern, since the prosecution does not support its petitions with any evidence at all, but simply copies the risks foreseen by the norms of the Code of Criminal Procedure of Ukraine. At the same time, the defense side in its counterarguments cites a number of significant circumstances that cannot fail to incline the court to decide to change the measure of restraint, for example, the fact that some of the accused, including A. Chibirdin, are free and do not violate the obligations assigned to them, although earlier the prosecution duplicated an allegedly substantial list of risks on them. In general, the ISHR observer had the impression that it was not the prosecution that proved the guilt of the accused, but the defense proved the innocence, which directly contradicts the presumption of innocence. In “Telfner v. Austria”, p. 15, the ECtHR concluded that the presumption of innocence is violated if the burden of proof on the part of the prosecution is transferred to the defense.
Once again, we want to express our concern that the presiding judge already considers the defendants in this case guilty and that his colleagues are not taking any measures when deciding on the challenge of this judge. “The fact that judges are involved in deciding on the challenge of one of their colleagues can create problems if they themselves constitute the object of such a challenge. However, the circumstances of this case must be taken into account.” (“Debled v. Belgium”, p. 37).
Recall that during an interview with the Higher Qualification Commission of Judges, V. Poznyak spoke in the affirmative form about the guilt of A. Chibirdin in the crimes he was charged with. This indicates a clear biased attitude of the judge to the accused and is certainly a violation of the presumption of innocence. For a trial to be considered fair, it is important that the judge is impartial and acts within the framework of the law. ISHR experts fully support the opinion of the ECtHR on this issue, namely, “Every judge with respect to whose impartiality there are legitimate doubts must leave the composition of the court hearing the case.” (“Housechildt v. Denmark” p. 48; Torger Torgerson v. Iceland p. 51).
ISHR experts will continue to monitor this lawsuit to clarify all the details.