09/26/2019 after almost five years of trial, in the Kiev district court of Kharkov, a debate took place between the parties in the case of the public activist Marina Kovtun, accused of organizing an explosion in the Kharkov rock-pub “Wall”. The accused is charged with committing acts aimed at violating the territorial integrity of Ukraine, changing the state border, sabotage, committing a terrorist act, leading a terrorist group, acquiring and storing weapons and ammunition (Part 1 Article 110; Part 2 Article 28, Article 113; Part 5 Article 27; Part 2 Article 258; Part 1 Article 285-3; Part 2 Article 28; Part .1 Art. 32; part 1 of Art. 263 of the Criminal Code of Ukraine).
Prosecutor Oleg Maksyuk believes that the guilt of accused Marina Kovtun of the alleged crimes was fully proved by testimony, materials of undeclared investigative (search) actions and other materials of criminal proceedings. The prosecutor asked for a maximum punishment under part 2 of article 258 of the Criminal Code of Ukraine in the form of 12 years in prison with confiscation of property, as well as recover more than 50 thousand UAH for conducting examinations and to satisfy claims of victims.
The accused Marina Kovtun refused to admit her guilt. She stated that “all materials and evidence are falsified.” She demanded that the records of the searches, which, according to her, were carried out with numerous violations, as well as her testimonies, which were given at the pre-trial investigation as a result of torture, be declared unacceptable evidence. She pointed out that witnesses who participated in the proceedings “went to the SBU as to the work.” So, when conducting investigative actions, three pairs of witnesses participated more than 12 times (12/17/2014, 04/01/2015, 04/02/2015, 04/03/2015, 07/06/2015, 04/07/2015).
The lawyer Yevgeny Olenev, in the debate, pointed out that the accused Marina Kovtun was not guilty of the crimes she was charged with and believes that the prosecutor did not provide direct, admissible evidence of the defendant’s guilt during the entire trial. The lawyer requested that the evidence referred to by the prosecution be declared inadmissible, since it was obtained by investigators of the Ukrainian State Security Service of Kharkiv Oblast during the pre-trial investigation, with significant violations of the procedural law, as well as with the use of torture by SBU staff, which could potentially be a violation of Art. 3 of the European Convention. Physical injuries were recorded by the employees of the medical unit of the pre-trial prison No. 8, as well as in the City Clinical Hospital for Emergency No. 4. On the fact of bodily harm to Kovtun Marina, the Military Prosecutor’s Office of the Kharkov garrison opened a criminal proceeding No. 42015220750000058 of 02.02.2015 under Article 365, part 2 of the Criminal Code of Ukraine. To date, the case is being heard in the Octyabrsiy court of Kharkov.
In accordance with the case law of the European Court, the admissibility of evidence obtained by torture in order to establish relevant facts in a criminal proceeding leads to its injustice as a whole, irrespective of the evidentiary value of such evidence and whether its use was crucial for conviction of the defendant by the court (“Gafgen v. Germany”, § 166).
In addition, the search in the garage, where weapons and ammunition were found, allegedly belonging to Kovtun M., was carried out illegally, since there was no resolution to conduct a search. Later, in hindsight, the investigating judge confirmed the lawfulness of the search by his determination, based on the testimony of witness A. Mineev, who signed the search permit, in his garage. Although the notice of suspicion indicates that the garage belongs to Kovtun M. and, accordingly, the weapons and explosives found in the garage are also hers. Who owns the garage, Minaev or Kovtun, remains unknown.
Part 3 of article 233 of the Code of Criminal Procedure of Ukraine, clearly and exhaustively indicates only two grounds for entering a person’s home or other property without the determination of an investigating judge. This is penetration in urgent cases related to saving lives of people and property and the direct prosecution of persons suspected of committing a crime. However, the testimonies of A. Minaev, set out in the interrogation record dated November 16, 2014, do not contain the grounds prescribed by law, the witness did not indicate that there is a danger to people and property in the garage. He also did not say anything about the possible presence of weapons in the garage. Nevertheless, SBU officials, without any reason, entered the garage premises, and later into the Kovtun M. household. The European Court has repeatedly noted that prior granting by the court of permission to conduct a search is an important guarantee against abuse (“Bagieva v. Ukraine”, § 51).
The interrogation of witness A. Minaev was carried out before the data on the criminal offense itself were entered criminal investigation roster. This contradicts the requirements of Article 214 of the Code of Criminal Procedure of Ukraine, according to which a pre-trial investigation begins from the moment of entering information about the criminal offense.
Thus, a search conducted on the basis of such evidence, which is the testimony of witness A. Minaev, is illegal in itself, and the evidence obtained during this search is unacceptable.
The materials of the criminal proceedings do not contain documents and testimonies confirming the ownership of the weapon by Kovtun M. The weapons found in the garage lack her fingerprints and DNA traces.
Video recording did not record the moment of detection of weapons and ammunition in the garage, their movement from the garage to the street, and also their packaging in accordance with part 2 of Article 106 of the Code of Criminal Procedure of Ukraine (as part of a single investigative action). Also, on the video there is no written registration of the course of the investigative action, the protocol, its familiarization by the participants of the investigative action and signing. Accordingly, the protocol of the investigative action submitted to the court was drawn up and signed outside the place and time of the investigative action. This means that it does not reflect the real course of the investigative action and is unreliable.
In addition, the defense did not have the opportunity to familiarize themselves with the court decisions based on which the investigative actions were made, since all the materials of the investigative actions were not disclosed. As the decisions of the European Court provide, the right to open the case materials is not absolute and may be restricted in order to protect secret methods of investigation or the identity of agents or witnesses (Edwards v. The United Kingdom judgment, § 33-39). The difficulties of the defense involved with the failure to disclose all materials must be balanced by the availability of legal procedures, are subject to judicial review (“Fitt v. The United Kingdom”, § 20), and the ability (both legal and factual) of the court to analyze the importance and usefulness of these materials for protection objectives.
Such positions are specified in the practice of the Supreme Court. For example, in case 489/5992/13-k (the decision of the Court of Cassation as part of the Supreme Court of February 19, 2019) in violation of the requirements of Art. 290 of the Code of Criminal Procedure, upon completion of the preliminary investigation, the defense was not provided with the decision of the investigating judges, on the basis of which unofficial investigative (search) actions were taken in the criminal proceedings, and therefore the defense was not able to verify the legality of the sources for obtaining this evidence.
In addition, in case 385/2006/14-k (the decision of the Court of Cassation as part of the Supreme Court of February 5, 2019), the Supreme Court formed the following legal position: the opening in the conditions of public and public judicial review of certain materials of criminal proceedings that existed at the time of going to court with the indictment, but were not open to the defense, does not mean their automatic admissibility, since under Part 12 of Art. 290 of the CPC, the criterion for admissibility of evidence is not only the legality of its receipt, but also the preliminary discovery of materials by the other side for their direct investigation in court.
The court went to the deliberation room. The approximate date for the announcement of the verdict is October 7, 2019.