Monitoring of the case of Kernes G.A., Blinnik V.D., Smitsky E.N. (session 12/20/19)

On December 20, 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 unlawful imprisonment of two people by torture, conducted by a group of persons by prior conspiracy, as well as a threat of murder.

At this hearing, the accused Kernes took part in a video conference with the Kharkov Court of Appeal. The defendants Smithsky and Blinnik arrived at the Poltava Court of Appeal.

As regards the use of video communications, the Court recalls that this form of participation in the proceedings as such is not incompatible with the notion of fair and public proceedings, but it must be ensured that the applicant can participate in the proceedings and the hearing without technical obstacles, and must also be ensured effective and confidential communication with a lawyer (paragraph 98 “Sakhnovsky v. Russia”).

It is worth noting that the Poltava Court of Appeal in order to ensure high-quality communication with the Kharkov Court of Appeal during the trial, according to the observer of the ISHR, took sufficient measures. This is also confirmed by the absence of complaints and comments from both sides.

The prosecutor submitted a petition for accessing the copies of the case file on the decision to change the group of prosecutors, letters, outlining the circumstances of the prosecutors’ non-arrival to the Kiev District Court of Poltava, copies of summonses, sick leave.

The defense side spoke about the impossibility of satisfying the application, on the basis that the documents were not previously opened to the defense and the accused Kernes is not able to familiarize himself with these documents, since he is in the Kharkov Court of Appeal.

The court, after hearing the opinion of all participants in the hearing, granted the prosecutor’s request and attached the relevant documents to the materials of the criminal proceedings. After that, the court proceeded to the examination of the appeal.

The prosecutor was the first to substantiate the appeal as follows:

  1. The decision of the Kiev District Court to close the proceedings in connection with the refusal of the prosecution was made without such refusal, but only in connection with the non-appearance of the prosecutors. Thus, the court did not correctly interpret the rule of law on the waiver of the charge.
  2. The court did not take into account the opinion of the victims.
  3. The court should have passed a sentence, not a ruling.
  4. The court limited the right of the prosecution and the victims to file applications at the stage of additions, before proceeding to the debate.

After the speeches of the prosecution and the victim parties, the lawyer of accused Kernes’s filed a motion to adjourn the hearing due to the unsatisfactory state of health of G. Kernes.

The court granted the motion of the defense.

At the next hearing, the accused Kernes expressed a desire to directly participate in the hearing in the Poltava Court of Appeal.

No violations by the court of the Convention for the Protection of Human Rights and Fundamental Freedoms have been recorded.

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