Monitoring of criminal proceedings of Petr Karpenko (hearing 10/12/2020)

On October 12, 2020, the Khersonsky Court of Appeal was supposed to hear the appeal of the accused P.P. Karpenko and his lawyer Y.S. Kletsko against the decision of the Novokakhovsky city court of the Kherson region dated July 27, 2020 to extend the accused’s detention period. P.P. Karpenko is charged under Part 2 of Article 15, clause 6, Part 2 of Article 115, Part 4 of Article 187, Part 1 of Article 309 of the Criminal Code of Ukraine (attempted murder out of selfish motives, robbery and illegal production, manufacture, acquisition, storage, transportation or shipment of narcotic drugs, psychotropic substances or their analogues without the purpose of sale).

The consideration of the appeal did not take place because the accused asked the court to replace his defense counsel. He noted that the current defender “… does not defend him in court, does not defend his rights.”

The prosecutor indicated that the refusal of a defense attorney or his replacement should take place exclusively in the presence of a defense attorney after providing an opportunity for confidential communication (Part 2 of Article 54 of the Criminal Procedure Code of Ukraine).

In the Resolution of the Cassation Criminal Court as part of the Supreme Court of June 7, 2018 in case No. 714/266/16-k it is indicated that, within the meaning of Part 1 of Article 412 of the Criminal Procedure Code of Ukraine restricting the right of the accused to free choice of defense counsel is a significant violation of the requirements of the criminal procedural law and the basis for canceling the court decision.

On the other hand, it should be noted that in the case of P.P. Karpenko it is not the first time a defender has been replaced. On November 7, 2019, the accused filed a petition to replace the defender appointed to him by the regional center for the provision of free secondary legal aid I.A. Zabolotny, to another free defense lawyer, arguing that his position with a lawyer in the implementation of defense is different, the accused does not agree with the opinion of the defense lawyer regarding the recognition of certain evidence in the case as inadmissible, and therefore he asks the court to accept his refusal from this defense lawyer. The refusal was accepted by the court.

At the hearing on April 17, 2020, the accused again submits a petition to replace the defender appointed by the regional center for the provision of free secondary legal aid with another, arguing that his positions with lawyer V. A. Bordun on the implementation of the defense is different, and also believes that the lawyer unprofessionally fulfills her duties, in particular, she does not submit applications that, in his opinion, should be made. The defendant’s defense lawyer V.A. Bordun supported the defendant’s petition, and also asked to replace his defender with another, referring to the fact that there are contradictions between her and the accused regarding the position on the defense line. The defendant’s petition was granted.

And again, at the hearing on 06.02.2020, the accused filed a motion to replace the third defender, Y.S. Kletsko, to another free lawyer, since he wants to have another defense lawyer in connection with the improper performance of his duties by a lawyer who is currently defending him in the aforementioned criminal proceedings. However, this time the court of first instance denied the accused and indicated that P.P. Karpenko did not explain what exactly he sees as the improper execution by lawyer Y.S. Kletsko, who provides free secondary legal aid, of his duties.

Now the accused raises the question of replacing the lawyer Y.S. Kletsko in the court of appeal, thus hindering the consideration of the appeal against the court’s decision to extend the period of detention within a reasonable time.

The European Court of Human Rights (hereinafter – the ECtHR) stated: Article 6 para. 3 (c) (Art. 6-3-c) gives the right “to everyone charged with a criminal offense” to be protected by a lawyer of his choice (“Pakelli v. Germany”, Para. 31). The case of “Croissant v. Germany” provides that, despite the importance of a relationship of trust between a lawyer and a client, the right of “everyone charged with a criminal offense” to be protected by a lawyer of his choice cannot be considered absolute. It is necessarily subject to certain restrictions when it comes to free legal aid, as well as where exactly the courts must decide whether the interests of justice require the accused to be defended by their appointed lawyer. When appointing defense counsel, the national courts must take into account the wishes of the accused. However, they may reject these wishes when there is appropriate and sufficient reason to believe that it is necessary in the interests of justice. (Paragraph 29).

Likewise, article 6, paragraph 3 (c), cannot be interpreted as securing the right to substitute public defender (“Lagerblom v. Sweden”, paragraph 55).

Without questioning the decision of the first instance court, representatives of the ISHR are concerned about how national courts are interpreting the ECtHR practice. Thus, the Novokakhovsky City Court of the Kherson Region, in a judgment of June 1, 2020, stated that “… taking into account the decisions in the cases “Campbell and Fell v. The United Kingdom”, “Krempovskaya v. Lithuania”, the ECtHR concluded that only those applicants who themselves have the means to pay for a defense lawyer, have the right to choose a defense lawyer of their choice”.

However, having studied the original texts of the decisions “Campbell and Fell v. The United Kingdom”, “Krempovskaya v. Lithuania”, we did not find such categorical positions. Moreover, the ISHR considers that such a wording may violate the right of “everyone charged with a criminal offense” to be protected by a lawyer of his choice.

Each case of filing an application to replace a lawyer is unique and should be examined for the proper performance of the lawyer’s duties. For example, in the case of “Artico v. Italy” (paragraph 33), the ECtHR found a violation of Article 6 para. 3 (c) of the Convention, as the applicant never used the services of a lawyer. From the very beginning, the lawyer stated that he could not act. He referred, first, to the existence of other obligations, and then to the state of his health. In this case, the application of the accused should be considered with special care, because we are talking about the inaction of a lawyer and the impossibility of exercising the right to legal assistance.

On November 2, 2020, at 4:00 pm, the Khersonsky Court of Appeal will consider the application of the accused to replace his lawyer. The International Society for Human Rights will continue to monitor this case.