Monitoring of the case of Kernes G.A., Blinnik V.D., Smitsky E.N. (session 11/15/19)

On November 15, the Poltava Court of Appeal held a regular court hearing on the case of a Ukrainian politician, a mayor of the city of Kharkov, Gennady Kernes, accused of illegal, by prior conspiracy by a group of people, imprisonment of two people with torture, as well as with the threat of murder.

The accused G. Kernes was unable to arrive at this hearing due to health problems. The accused filed a motion for consideration of the appeal in his absence.

According to Part 1 of Art. 323 of the Code of Criminal Procedure of Ukraine, if the accused, in respect of whom the measure of restraint in the form of detention has not been selected, did not arrive on call at the hearing, the court postpones the hearing, sets a new date and takes measures to ensure the appearance of the accused.

The prosecutor filed a motion for the presence of the accused G. Kernes, as well as for the appointment of lawyers from among the free legal aid. He also requested the provision of “state” defenders to the accused Smithsky and Blinnik.

It should be noted that the accused G. Kernes is already represented in court by five lawyers, two of whom were in the courtroom at the time of the hearing. According to the norms of the CPC, as well as part 3 of article 46 of the Law of Ukraine “On Advocacy”, at the same time no more than five defenders of one accused can take part in criminal proceedings and lawyers of the free legal aid Center can be appointed only if the person either does not have funds for a lawyer under the contract, or does not have a lawyer in cases where the presence of a defense attorney is mandatory.

Thus, the application submitted directly contradicts the norms of national legislation. In addition, a request for the appointment of “state” lawyers for persons with lawyers under the contract violates the right to freely choose lawyers.

The European Court of Human Rights, in the “Khanzevatsky v. Croatia” case, notes that although the right of every criminal defendant to effective defense by a lawyer is not absolute, it is one of the fundamental features of a fair trial. An accused of a criminal offense who does not wish to defend himself in person should be able to resort to legal assistance of his own choice (paragraph 21). Moreover, considering the purpose of the Convention, which is to protect rights and freedoms, the right to the fair administration of justice is a priority in a democratic society. The Court considers that any restrictive interpretation of Article 6 will not be consistent with the purpose of this provision (see “Mutatis mutandis, Delcourt v. Belgium”, 17 January 1970, series A No. 11, § 25, and “Ryakib Biryukov v. Russia”, No. 14810/02, § 37, ECHR 2008) (paragraph 28).

ISHR experts see a tendency for the prosecution to behave like this, which is also the case in other trials. During the monitoring of the trial of Viktor Yanukovych, the prosecution repeatedly stated such motions (trials September 13-18, 2019). In addition, for a long time, V. Yanukovych was represented in court by five lawyers under the contract and one public defender, whom he refused in writing, but the court insisted on his presence contrary to the laws of Ukraine.

In the process of discussing the petition, the prosecutor announced his withdrawal from consideration until the next session, in connection with which the court did not decide on this petition.

Subsequently, the defense expressed the desire of the accused Kernes to take part in the next session by video conference, which the court granted.

Experts from the International Society for Human Rights will continue to monitor this trial.