Monitoring of criminal proceedings of Mokrinsky Vasily and Frankovsky Roman (hearing 10/13/2020)

On October 13, 2020, in the Khmelnytsky City District Court of the Khmelnytsky Region, a hearing was held in case No. 686/13590/16-k on the charges of V.I. Mokrinsky and R.S. Frankovskiy under Part 2 of Art. 365, part 2 of Art. 121 of the Criminal Code of Ukraine. Employees of the Zamkov Prison Mokrinsky V.I. and Frankovskiy R.S. accused of having arrived at the Khmelnytsky pre-trial detention center for the convicted Danilyuk A., exceeding their authority, used physical violence against the convict, namely inflicted at least 19 blows on the head with a blunt object, as a result of which Danilyuk A. died.

The prosecutor, the victim and her representative, the accused and their defenders arrived at the hearing.

However, the prosecution witness, whom it was planned to question, did not appear. In connection with the absence of the witness, the court, having heard the opinion of the parties, decided to postpone the consideration of the case.

National courts often face the problem of failure to ensure the attendance of witnesses by the prosecutor’s office.

For example, in the “Kazyulin v. Russian Federation” case, the ECtHR found a violation of Art. 6 of the Convention in the aspect of the reasonableness of the time frame for the consideration of the case, since the witnesses have repeatedly failed to appear at the court hearings (paragraph 36). The state made no secret of the fact that the examination of the case within a reasonable time was complicated by the difficulties in calling witnesses (paragraph 31).

The question of the existence of a valid reason for the non-appearance of a witness must be considered before it is determined whether such evidence is unique or conclusive. If the witness did not appear in person to testify, it is imperative to establish the justification for his absence (“Al-Kawaya and Taheri v. The United Kingdom”, paragraph 120; “Gabrielyan v. Armenia”, paragraphs 78, 81-84).

Paragraph 1 of Art. 6, in conjunction with paragraph 3, requires the Contracting States to take measures to allow the accused to question witnesses who testify against him or to have them questioned (“Trofimov v. Russia”, paragraph 33; “Sadak v. Turkey”, paragraph 67).

In the event that the questioning of witnesses is impossible due to their absence, the authorities must take reasonable measures to ensure their presence (“Karpenko v. Russia”, paragraph 62; “Damir Sibgatullin v. Russia”, paragraph 51; “Pello v. Estonia”, paragraph 35; “Bonev v. Bulgaria”, paragraph 43).

However, impossibilium nulla est obligatio (the impossible cannot be made a duty); provided that the authorities cannot be accused of negligence in attempting to provide the accused with the opportunity to question relevant witnesses, the absence of witnesses does not, as such, necessitate the termination of the prosecution (“Gossa v. Poland”, paragraph 55).

Also, the defense side filed a petition for the court to appeal to the expert institution with a petition to expedite the examination in criminal proceedings, and the court granted this petition.

The next court hearing is scheduled for November 20, 2020.