Monitoring of criminal proceedings of S. S. Kozak, V. A. Mitkalik, M. D. Gumenyuk, A. F. Gurko (hearing 12.21.2021)

On December 21, 2021, in the Lutsk city district court of the Volyn region, with the participation of judge O.A. Kalkova continued the hearing of case No. 157/146/18 on charges of Sergei Stepanovich Kozak (under Part 2 of Art. 199, Part 2 of Art. 186, Part 1, 2 of Art. 190 of the Criminal Code of Ukraine), Gurko Oleksandr Fedorovich (under Art. 2 article 199, part 2 article 186, part 2 article 190 of the Criminal Code of Ukraine), Mitkalik Vitaly Anatolyevich and Gumenyuk Maria Dmitrievna (under part 2 article 199 of the Criminal Code of Ukraine). The monitoring of the court session was carried out through a video broadcast of the court session on the official website of the Judicial Power of Ukraine.

The court session was attended by prosecutor V.M. Shevchuk, all the accused in the case, their defenders (lawyers O.B. Petrichenko, O.I. Uryn, V.V. Zhukovsky, I.V. Mishchuk.), and the representative of the victim – lawyer Kovalenko. The victim himself did not come to the courtroom; the court could not establish the reason for his failure to appear.

The trial began with the reporting by the public prosecution in terms of the implementation of the previous court rulings on the use of the prosecution witnesses to testify. According to the prosecutor V.M. Shevchuk, the head of the group of prosecutors S. Semchuk initiated an internal investigation because of the failure to enforce the witness appearance. Therefore, the prosecution asked the court to duplicate the court’s ruling on the application of the aforementioned witnesses and to postpone the consideration of the criminal proceedings again.

The defense, in particular the lawyer O.I. Uryn pointed out that the appearance of witnesses and victims is not ensured by the prosecution. The defense lawyer stressed that the failure to take the necessary measures by the prosecution is their flaw and the court is not obliged to contribute to the delay in the trial, adhering to the adversarial principle. In order to comply with an efficient and quick trial, taking into account the duration of this case, lawyer O.I. Uryn asked the court to refuse to satisfy the prosecutor’s motion to postpone the hearing and announce a break. In connection with the above, O.I. Uryn petitioned for the transition to the interrogation of the accused and to the judicial debate. The rest of the participants in the trial and the accused fully supported the position of the lawyer. As a result, the court refused to satisfy the petition of the prosecutor V.M. Shevchuk and continued the trial.

When giving evidence to the accused A.F. Gurko, the prosecutor interrupted the latter and again asked the court to postpone the hearing, as he was not ready to hear the testimony of the accused. According to him, the head of the group of prosecutors authorized him to interview witnesses. The accused, like their defenders, were categorically against the position of the prosecution. Nevertheless, the court granted the petition filed by the prosecutor V.M. Shevchuk and postponed the trial until January 4, 2022.

According to the observer of the ISHR, violation of the principle of reasonable time limits for the trial is one of the main problems of this case. This can be traced in previous decisions of the Lutsk City District Court, in which the reasons for postponing the previous court hearings were: the absence of prosecution witnesses, victims, the change of the leading prosecutor, as well as the filing of recusals and self-recusals of the presiding judge of criminal proceedings.

In criminal matters, the aim of paragraph 1 of Article 6 of the European Convention, according to which everyone has the right to a trial within a reasonable time, is to ensure that the accused are not held under suspicion for too long (“Wemkhov v. Germany”, para. 18; “Kart v. Turkey”, para. 68).

Article 6 (1) of the European Convention recognizes that every person prosecuted in a criminal case has the right to obtain, within a reasonable time, a final decision on the well-foundedness of the charge against him, or rather to ensure that the accused do not remain under the weight of the charge for a long time, and that a decision be made on the well-foundedness of the charge (“Wemkhov v. Germany”, para. 18, “Giulia Manzoni v. Italy”, para. 25, “Brogan and Others v. the United Kingdom”, para. 65).

In addition, ISHR experts draw attention to the frequent replacement of the lead prosecutor in this case. According to the observer of the monitoring group, the frequent replacement of the leading prosecutor in the case and his unpreparedness for the court session, may lead to a delay in the proceeding. This, in turn, may lead to a violation of the right to a fair trial in the context of Article 6 of the European Convention.

The International Society for Human Rights will continue to monitor and clarify the details of these criminal proceedings.