Monitoring of the Anton Kitaev case (hearing on 08.19.20)

On August 19, in the Lubensky district court of the Poltava region, a trial was held in the case of Anton Kitaev, who is accused of illegal sale of drugs and organizing a place for drug use.

It should be noted that the report was prepared by the observer of the International Society for Human Rights from audio recording provided by the lawyer.

According to the defense lawyer V. Gribovod, during the entire trial, the court did not satisfy a single petition of the defense, while all the petitions of the prosecution were accepted by the court.

Even at the preparatory session, the defense asked to broadcast the trial on the website of the Judiciary of Ukraine. The court rejected this request, stating that the case was ordinary.

In subsequent court hearings, the defense also filed motions, which were refused.

In particular, from the first hearing, the lawyer argued not only about the presence of provocation (incitement) on the part of the investigative bodies, but also the possible falsification of materials.

The ECtHR has repeatedly insisted on the duty of the court to check the facts related to a possible provocation from the moment the defense declared about possible incitement.

The ECtHR judgment “Ramanauskis v. Lithuania” states that “the court, in order to establish whether A.Z. and V.S. performed only “passive investigation of illegal activities”, must take into account that there is no evidence in the case confirming that the applicant had previously committed crimes, including those related to corruption; according to the recordings of telephone conversations, the applicant met A.Z. on several occasions at the initiative of the latter (this fact, obviously, refutes the arguments presented by the Government that the law enforcement bodies never put pressure on the applicant or resorted to threats). On the contrary, through contacts established at the initiative of A.Z. and V.S., the law enforcement authorities clearly persuaded the applicant to commit illegal actions, although, apart from rumors, there was no objective evidence to suggest that the applicant was engaged in illegal activities.”

These considerations are sufficient to substantiate the conclusion that the actions of law enforcement officers went beyond the limits of a passive investigation of existing illegal activities.

As the applicant’s submissions were not entirely unfounded, it was the prosecutor’s office who had to prove that there was no incitement. In the absence of such evidence, the domestic courts were obliged to analyze the circumstances of the case and take appropriate steps to establish the truth, as well as to find out whether there was incitement. If this fact was proved, they had to act in accordance with the provisions of the Convention. However, the authorities denied that they had been incited by the police and the court did not take any steps to verify the applicant’s submissions. In particular, the court did not even try to find out the role of each of the main characters, for example, the reasons for the personal initiative of A.Z. appeal to the applicant, despite the fact that the latter’s conviction was based on evidence obtained as a result of the incitement he complained about.

In this case, the Lubensky the court not only did not begin the verification of the facts indicated by the defense, but also, in the opinion of the lawyer, essentially interfered with the adversarial nature.

The defense, in order to confirm the facts of incitement and actions on the part of law enforcement agencies, applied for temporary access to the data of the mobile operator about the incoming and outgoing phone calls of Kitaev. According to the defense lawyer, the case file contains only information about several calls for almost 9 months of the investigation, although according to the defense, the witness called A. Kitaev almost every day. This indicates that the pre-trial investigation body selectively provided the court with evidence, although it was obliged to provide everything.

The court rejected the defense motion, motivating it with the premature filing, although the criminal procedural legislation does not contain such grounds.

At the hearing, prosecution witness Tumanov, who carried out the procurement, was questioned. The information about the witness has been changed and contains state secrets. Thus, the judge had to have access to state secrets.

In view of these circumstances, the prosecution filed a motion to interrogate Tumanov outside the courtroom with a change in voice and personal data. And the defense lawyer demanded that the Lubensky court establish his identity before questioning the witness, as indicated in Article 352 of the Criminal Procedure Code of Ukraine (according to part 1 of Article 352 of the Criminal Procedure Code of Ukraine, before interrogating a witness, the presiding judge establishes information about his identity and clarifies the relationship between the witness and the accused and the victim).

However, the court decided to interrogate Tumanov from the premises of the Poltava Court of Appeal. According to the lawyer, such a situation may entail the impossibility of properly assessing the testimony of the main witness in the case.

In connection with the above circumstances, the defense declared the disqualification of the judge of the Lubensky court Datsenko V.N.

In §§66-70 of the “Mironenko and Martynenko v. Ukraine” case, the ECtHR indicated that, in accordance with the Court’s constant case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined in accordance with a subjective factor, in which the personal beliefs and behavior of a particular judges, that is, whether the judge had any personal bias or prejudice in the case; and in accordance with an objective test, that is, by establishing whether the tribunal itself, and, inter alia, its composition, offered sufficient safeguards to rule out any legitimate doubts about its impartiality.

As far as the subjective factor is concerned, the judge’s personal impartiality should be assumed until proven otherwise.

On the objective side, it is necessary to determine whether, in addition to the judge’s behavior, there are established facts that may raise doubts about his impartiality. This means that in deciding whether there is a legitimate reason to fear that a particular judge does not have impartiality in a given case, the position of the person concerned is important but not decisive. The decisive factor is whether these fears can be considered objectively justified.

In this respect, even appearances can have a certain meaning, or, in other words, “justice must not only be done, it must also be seen.” What is at stake is the credibility that the courts in a democratic society must inspire in the public.

The court refused to satisfy the request for recusal and interrogated witness Tumanov without establishing his identity before the interrogation.

Experts from the International Society for Human Rights will continue to monitor this trial. The next court session is scheduled for 09.09.2020.