On September 23, 2020, in the Shevchenkovsky District Court of the city of Kiev, a court hearing was held online in the case of the activist of the nationalist party “Svoboda” Sergei Kraynyak, who is accused of committing crimes under Part 3 of Art. 258 of the Criminal Code of Ukraine (committing a terrorist act leading to the death of a person) and ex-fighter of the “Sich” battalion of the Ministry of Internal Affairs Igor Gumenyuk, who is accused of committing crimes under Part 3 of Art. 258, part 1 of Art. 263, part 2 of Art. 342 of the Criminal Code of Ukraine (committing a terrorist act leading to the death of a person; illegal handling of weapons, ammunition or explosives; resistance to a law enforcement officer in the performance of his official duties).
On August 31, 2015, the parliament of Ukraine in the first reading by 265 votes approved the presidential bill on amendments to the Constitution of the country regarding the decentralization of power. After that, under the parliament building, clashes between protesters against voting for this bill began with law enforcement officers. As a result of a grenade thrown at law enforcement officers, four soldiers of the National Guard were killed, more than 140 law enforcement officers and civilians, including media representatives, were injured. According to investigators, I. Gumenyuk threw a grenade, and S. Kraynyak lit a smoke bomb to help I. Gumenyuk carry out an explosion near the Parliament and hide.
The session on September 23 began with the fact that the defense attorney challenged the judge on the grounds that, in his opinion, the court violated the general principles of criminal proceedings adversarial nature and equality of parties. In particular, at the last court hearing in this case, namely on September 17, 2020, the court carried out a selective study and the announcement of four volumes of uncertified photocopies of documents, without a previously resolved issue regarding their edition to the materials of criminal proceedings. According to the lawyer, the court changed the procedure and way of examining evidence. These actions, according to the defense, indicate a violation of the principles of objectivity and impartiality and undermine public confidence in the court.
It should be noted that the case is considered by a panel of the court with the participation of a jury. The defense also stated that the examination of the evidence without comments from the jury also confirms that they have lost objective signs of impartiality and that the jury is under the influence of the judge.
The court left the lawyer’s application without consideration, emphasizing that the defense was abusing the right to challenge, thus delaying the trial.
As a result, the lawyer Sviridovskiy A.A. also announced the challenge of the court, due to the fact that the court, in his opinion, by its actions violates the right of the accused to a fair trial. The lawyer emphasized the fact that the accused Gumenyuk I.V. for more than 5 years has been in custody, not being able to be directly in court and to participate in the examination of the evidence presented by the prosecutor and to express his opinion on this matter (the observer of the ISHR notes that at this session both accused were personally present in court). Like the petition of the lawyer Sviridovsky, the application for the disqualification of the lawyer Zarutsky was also left by the court without consideration, for the same reasons.
The International Society for Human Rights notes that, considering the ECtHR decision in the case “Vernillo v. France”, all parties involved in the proceedings must do their utmost to avoid undue delay in the proceedings. Thus, when identifying those guilty of delaying the proceeding, it is necessary to analyze the degree of involvement of the participants in the proceeding and the efforts they make to prevent unnecessary delay in the consideration of the case. That can be done later by monitoring this proceeding.
In addition, the defense insisted that the documents submitted by the prosecutor were falsified, since they were presented in an improperly executed form, but at the same time, they were accepted by the court (in the decision of the Supreme Court of May 8, 2019 in case No. 160/7887/18, the position regarding the compulsory certification of copies of procedural documents in accordance with the National Standard of Ukraine DSTU 4163-2003 “Unified system of organizational and administrative documentation” is set forth).
After that, the investigation of the evidence in this case began.
The prosecutor, in turn, stated that he did not see any violations of the law in this court proceeding, and therefore, continued to provide written evidence to the court and asked to attach them to the materials of the court proceeding.
The defense side filed a petition for the appointment of a technical examination of the documents provided by the prosecutor, including documents submitted at the last court session (September 17, 2020). After consulting on the spot, the court decided to reject this petition.
The International Society for Human Rights will continue to monitor this case in order to establish the details of this proceeding and determine whether there have been violations in the observance of the right to a fair trial.
However, it should be noted that, starting in 2018, the court decided to hold the proceedings behind closed doors at the request of the victims, due to the presence of aggressive activists at the court sessions. But, given the public outcry, the court decided to conduct online broadcasts of the sessions on the official website of the Judicial Power of Ukraine.
The next court hearing in this case is scheduled for 10/01/2020 at 3:00 pm. The International Society for Human Rights will continue to monitor this criminal proceeding.