Monitoring of the Alexandr Filtsev case (sessions July 22-23, 2020)

On July 22, 2020, the Khersonsky Court of Appeal was supposed to consider the complaint of A. Filtsev’s lawyers against the decision of the Leninsky District Court of Nikolaev to extend the measure of restraint in the form of detention for 60 days.

Alexandr Filtsev is accused of committing criminal offenses under Articles 146 (illegal imprisonment or abduction of a person by an organized group or one that entailed grave consequences) and 190 (large-scale fraud) of the Criminal Code of Ukraine.

Based on the appeal, the Leninsky District Court notified the lawyers too late about the scheduled meeting (at 11:30 am, despite the fact that the hearing was supposed to take place at 2:30 pm the same day), on that day one of the defenders was on sick leave. Due to the physical impossibility of arriving at the hearing in Nikolaev from Kiev in 3 hours, the lawyers petitioned to postpone the hearing. However, the court did not take into account that it was through its [court’s] fault that the lawyers could not arrive at the hearing on time, which is also confirmed by the dissenting opinion of the judge of the Leninsky District Court of Nikolaev (from 07.04.20), who in the document indicated the following: “In violation of Part 1 of Article 323 and Part 1 of Article 324 of the Code of Criminal Procedure of Ukraine, the court did not postpone the trial on July 4, 2020 in connection with the non-arrival of the accused O.M. Chaika, his defender Y.V. Timoshin, defenders A.L. Boryak and O.A Garnik” [translation by author].

In this regard, the Leninsky District Court decided to appoint a lawyer for Alexandr Filtsev from the Center for Free Secondary Legal Aid – V. Bashchuk, against the wishes of the accused himself. When considering the appeal, the accused stated that he had said more than once that he had lawyers under the contract and he was against the participation of the appointed lawyer. In addition, after the hearing, V. Bashchuk, in explanation of her participation, which did not comply with the principles of the criminal proceedings, confirmed that she had violated the rules of advocate ethics, since she did not contact A. Filtsev’s lawyers, did not agree with them on her legal position, did not get acquainted with the case and was unable to provide legal assistance to the accused.

In this case, with the available documentary evidence (dissenting opinion of the judge, explanations of lawyer V. Bashchuk, statement of the accused and his lawyers), the International Society for Human Rights believes that there was a violation of A. Filtsev’s right to defense.

The right to freely choose one’s defense counsel is enshrined in article 14 (3) (d) of the International Covenant on Civil and Political Rights, article 6 (3) (c) of the European Convention for the Protection of Rights and Fundamental Freedoms, as well as at the national level – article 59 of the Constitution of Ukraine. Of course, the right to choose a defense lawyer is not absolute and can be limited under certain conditions, but only within the framework of the principle of fair trial. The appointment of a defense lawyer by the court can be used in the interests of justice, in order to avoid pauses or interruptions in the proceedings. At the same time, “the state cannot be held responsible for every mistake of the lawyer appointed to provide assistance …”, but the competent authorities must intervene if the mistake of the appointed lawyer is obvious or is drawn to their attention in another way (ECtHR case “Croissant v. Germany”). In this case, the fact of violation of the right to defense of A. Filtsev when considering an application for the extension of an exceptional measure of restraint in the form of detention for the appeal instance seems obvious, since it contradicts national law as well.

The 2019 report of the ISHR on the observance of the right to a fair trial in Ukraine emphasizes that “the introduction of state protection without quality support only for the purpose of ensuring formal compliance with the norms cannot be considered as ensuring the realization of the right to defense”. The right of a person charged with a criminal offense to an effective defense of a lawyer is one of the main foundations of a fair trial (ECtHR case “Crombie v. France”).

The course of the hearing. On July 22, 2020, consideration of the appeal was to begin. The trial was to be held via videoconference with four contacts: the collegium of the court (the Khersonsky Court of Appeal), the prosecutor, lawyers (from the courts in Nikolaev and the Kiev region, respectively), as well as the accused himself at the conference from the pre-trial detention center. The ISHR observer had to wait about an hour while waiting for a high-quality connection, after which it turned out that the prosecutor did not appear in the court in the city of Nikolaev from which he was supposed to take part in the hearing, without notifying either this court or the Khersonsky appeal court about his absence and the reason.

In connection with the failure of the prosecutor to appear, it was decided to postpone the hearing to 10:30 am the next day with a repeated notification of the prosecutor.

It should also be noted that the judges were dissatisfied with the behavior of the prosecutor, since due to the lack of judges in the criminal chamber of the Kherson Court of Appeal, they are very busy, and such a failure to appear by one of the parties without warning takes up time that they could devote to this or another case.

The course of the hearing. On July 23, 2020, for a long time, the court again tried to establish communication between the participants in the court session. In the opinion of the collegium, the poor technical support is a consequence of the substantial debt of the State Judicial Administration to Ukrtelecom (a provider of Internet services for the judicial system). After the connection was established, the court returned to considering the complaint.

Nevertheless, the observer points out that the periodically deteriorating communication could have prevented the collegium from receiving a high-quality speech of the lawyers, since more than once the defense lawyers had to stop, repeat partially what was already said, and the court was distracted by technical issues. The Collegium heard the arguments of A. Filtsev’s defenders and the accused himself, as well as the prosecutor, who asked the court to refuse to satisfy the appeal, but did not give a single argument refuting the validity of the lawyers’ appeal against the extension of the measure of restraint.

As a result, the court of appeal concluded that the “interests of justice” provided for the need to involve a “state” lawyer in deciding the issue of extending the measure of restraint. Based on the text of the ruling, the court of second instance, first of all, took into account not the violation of one of the most important principles of the criminal trial – the right to defense, but the very need to extend the measure of restraint, based on the case materials, which were transferred by the Leningradsky District Court. In this regard, the question arises what is prevailing in the criminal proceeding: the right to defense or the “interests of justice”, and to what extent the interests of the accused can be limited in order to comply with the procedural “interests of justice”.

It should also be noted that in connection with quarantine measures, the Khersonsky Court of Appeal restricts the participation of public at hearings. In particular, the mother of the accused A. Filtsev was unable to attend both sessions. The presiding judge V. Zaichenko and the press secretary of the court I. Legkikh expressed their regret at the need to comply with such measures and assured that such restrictions are solely due to quarantine and after its ending, everyone will be able to attend open court hearings. The International Society for Human Rights is grateful for the opportunity for the personal presence of an official observer during the trial.

The ISHR will continue to clarify the details and monitor this case in the first instance.