On January 31, 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.
In connection with the reform of the prosecution authorities, some changes occurred in the composition of the participants: the prosecution was represented at the hearing by the prosecutors of the Office of the Prosecutor General B. Berkut and Volonin V. To confirm the authority, the court was given the decision of the First Deputy Prosecutor General of Ukraine to change the group of prosecutors. The defense made a statement about the impossibility of the participation of these prosecutors, since in Article 3 of the Criminal Procedure Code of Ukraine it is determined that the head of the prosecutor’s office is the Prosecutor General of Ukraine, the head of the regional prosecutor’s office and their first deputies and deputy, who act within their authority.
Moreover, as the lawyer of the accused Kernes claimed, in accordance with paragraph 1.2 of the Order of the Office of the Attorney General No. 367 of 12/28/2019, the first deputy does not have the authority to change the group of prosecutors. Thus, according to the defense, prosecutors Berkut B. and Volonin V. do not have enough authority to represent the public prosecution at this hearing.
The court continued consideration of the appeal with the participation of state prosecutors, considering that the grounds for their authority were sufficient.
At the hearing, the appeal was considered in essence. Since the prosecution has already submitted the arguments of its appeal, the court session began with the announcement of the objection of the defense.
The essence of the stated objections was as follows.
The court of first instance ruled that it closed the proceedings in connection with the refusal of state charges. The Kievsky district court made this conclusion, since the prosecution did not appear at 7 consecutive court hearings. A group of prosecutors consisted of 19 prosecutors from the General Prosecutor’s Office of Ukraine. To confirm the validity of the reasons for the inability to attend court hearings, only 2 sick leave certificates were submitted. At the time of the impugned decision, the judicial review lasted for more than 3 years.
The prolonged absence of prosecutors at court hearings, given the mandatory appearance of them, in the opinion of the defense is a violation of the right to a fair trial.
It should be noted that the ECtHR assesses the reasonableness of the length of the trial in accordance with the circumstances of the case and taking into account the criteria established in its case law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (“Keilo v. France”).
The International Society for Human Rights does not undertake to evaluate the decision of the court of first instance, however, it considers that the behavior of the prosecution in this criminal proceeding in the Kievsky district court of Poltava directly contradicts the objectives of the criminal proceedings, primarily in terms of ensuring a full and speedy judicial review (Article 2 CPC). In addition, according to Article 3 of the Code of Criminal Procedure, the prosecutor’s office, supporting a public prosecution, must prove the prosecution before the court in order to ensure the criminal liability of the person who committed the criminal offense. In fact, none of the 19 prosecutors (included in the group) appeared at 7 consecutive court hearings, which was regarded by the court as the prosecutor’s refusal from the charge.
It should be noted that the prosecutor’s office is a government body that has the ability to directly influence the opening of criminal proceedings, including with regard to judges and to exercise procedural supervision. Thus, the system of interaction between the judiciary and the prosecutor’s office has the prerequisites not only of procedural influence, but also of possible pressure on the court.
So, on August 10, 2018, on the day the impugned decision was made to close the Kernes proceedings, at a briefing, representatives of the Prosecutor General’s Office of Ukraine announced the opening of criminal proceedings against Judge Antonov under Art. 375 of the Criminal Code of Ukraine, which provides for liability for a deliberately unlawful sentence, decision or determination. The prosecution indicated that the court, having closed the proceedings, deprived them of the right to speak in the debate. In addition, the court was not requested to refuse the charge.
The Poltava Court of Appeal upheld the complaint of the prosecutor. The case against the accused Kernes G.A., Blinnik V.D., Smitsky E.N. sent to the trial court for a new consideration.
Experts from the International Society for Human Rights will continue to monitor this trial.