Monitoring the trial of S. Zinchenko, P. Ambroskin, A. Marinchenko, S. Tamtura, O. Yanishevsky (session 11/29/2018)

11/29/2018 in the Svyatoshinsky district court of the city of Kiev, a regular court hearing on the case of officers of the Kiev riot police unit „Berkut“ regarding the events that occurred on the Maidan in January 2014 took place. All five are accused of obstructing public meetings, abuse of power, murder and terrorism, and other crimes. The International Society for Human Rights continues to monitor this case.

ISHR experts have repeatedly noted that the defendants during the trial are in a glass box, at the moment the situation has not changed. Placement of even one defendant in a glass box creates difficulties in his perception of the process (it is hard to hear what is going on outside the box), and inconveniences arise when transferring documents from the lawyer to the defendant and vice versa, it is often stuffy in the box, and in this trial there are 5 persons. And most importantly, the right to confidential communication between lawyers and their clients is violated. The European Court of Human Rights in its decisions emphasizes that the confidentiality of information exchanged between a lawyer and his client is extremely important. This is a fundamental component of effective protection (“Chebotari v. Moldova”). It is also necessary to take into account the fact that, due to the complexity of the case and the large number of lawyers and defendants, it is sometimes necessary to curtail the rights of the defendants. For example, during this hearing one of the lawyers was unable to attend the meeting; therefore the interests of his clients were represented by two other lawyers which are actually representing the interests of other defendants.

In addition, the practice of the ECHR shows that the court, despite being more loyal to plastic boxes than to iron cages, still considers restrictive measures in the courtroom a violation of Article 3 of the European Convention on the Prohibition of Torture (“Lutskevich v. Russia”) and notes that such measures may affect the fairness of a court hearing guaranteed by Article 6 of the European Convention, in particular on getting practical and effective legal assistance (“Yaroslav Belousov v. Russia”).

During the trial, the materials of the pre-trial investigation, inspection report dated September 29, 2015, namely the video filmed on Maidan in 2014, were re-examined. The prosecution argued that these videos are direct evidence of the events that took place on the Maidan and are evidence of the charges against the ex-officers of the “Berkut”. A member of the monitoring team of the ISHR notes that when watching the video, none of the records featured any of the accused. The criminal process explicitly provides for the concept of “appropriate evidence”, which determines whether it is necessary to present to the court only those materials that directly or indirectly confirm the presence or absence of circumstances to be proved (article 85 of the Code of Criminal Procedure). During the monitoring, no video provided by the prosecution was directly related to the accused. Only the essence of the conflict between the protesters and law enforcement officers was displayed. But based on the principle of personal criminal responsibility, which arises from the presumption of innocence (paragraph 2 of Article 6 of the European Convention, Part 1 of Article 17 of the Code of Criminal Procedure), it is necessary to prove that the crime was committed by those who are accused. Therefore, there is a reasonable doubt that it is necessary to include such evidence in the materials of the case, both in terms of their affiliation and not to delay the process.

The practice of inclusion by the prosecution of evidence with dubious affiliation can also be identified as a separate negative trend that undermines the authority of the judiciary and is contrary to the principles of the Convention for the Protection of Human Rights and Fundamental Freedoms. For example, in A. Schegolev’s case such evidence is the testimony of the victims – in two years, 43 victims were interviewed, and none of whom could point to the accused as being guilty of committing the crimes that are incriminated to him. But despite the senselessness of such interrogations, prosecutors insist on hearing more than 100 people. In the case of P. Volkov (report for 11.27.18), the prosecutor insisted on watching the YouTube video with the events of 2014, however the indictment deals with the events of 2015-2016. These and other examples collected by the members of the monitoring group of the ISHR for the period of monitoring the right to a fair trial in Ukraine, reflect the systematic nature of the problem with the presentation of inappropriate evidence. And even if the court includes such materials in the evidence base, their examination in court takes a very long time and can be used as a tool for delaying the trial.

It is also necessary to note the positive aspects of this trial. During the trial, the use of the adversarial principle by the parties was clearly monitored, since each of the parties interpreted the meaning of the video viewed in its own way. For example, in one of the videos, a woman’s rallies shouted something indistinctly, the prosecutor expressed the opinion that the woman shouted: “they are shooting at us”, that is, the prosecution hinted that the Berkut’s officers were shooting at activists the lawyers said that the woman shouted to the activists: “do not shoot at the “Berkut”.

It is worth noting the professionalism of the presiding judge S. Dyachuk, who never impedes the parties in expressing their opinions and sets them no time frame, as, for example, judge V. Devyatko in the case of Yanukovych, when the judge, contrary to the norms of the criminal process (part 4 of article 364 of the CCP) decided to interrupt the speech of attorney A. Goroshinsky, saying that the lawyer did not meet the deadline for his speech which violates the right to defense. In the case of S. Zinchenko and others, the court seeks to fully and objectively examine all the evidence presented.

Experts of the International Society for Human Rights will continue to monitor and clarify the details of this legal process. Previous materials can be found here.