The consideration of the appeal on the decision of the investigating judge of High Anti-Corruption Court of Ukraine on the application of a measure of restraint to the director of the legal department of the Odessa City Council Inna Popovskaya, suspected of committing a corruption offense as part of a criminal organization, was scheduled for November 9, 2021. Despite the fact that the hearing was postponed to November 15, the experts of the ISHR began to study the materials of this case.
Use of “questionable” evidence and sources
In the course of studying the materials, questions arose regarding some of the evidence and their assessment used by the investigating judge, who passed the order on the application of the measure of restraint. When making the decision, the investigating judge explained his position, referred to the practice of the ECtHR, which is a positive aspect. But, some of the sources used by the judge raise questions. Thus, assessing the arguments of the suspect that she cannot be held responsible for the actions of third parties, the judge referred to the textbook “Ukrainian Criminal Law. General part” edited by V.O. Navrotsky, 2013. Of course, legal doctrines can be used as a source of law, however, in this case, it is assumed that the judge will refer to the scientific and legal conclusion, expertise or, in extreme cases, theoretical research (in which the researcher investigates and reveals the concept), and not to a study guide, the task of which is to teach law students. It is noteworthy that the judge did not provide other explanations for his interpretation of the suspect’s arguments on this important issue.
Unfortunately, this profound use of educational materials contrasts with lack of close attention to some other important aspects of the judgement. For example, defense lawyers point out that the conclusions of the investigating judge regarding the proof of the validity of the suspicion word for word repeat the conclusions from the detective’s motion.
In addition to the links to the textbook and the copying of the text of the detectives, other, more significant questions arose regarding the evidence used by the investigating judge. So, from the explanations of the defense and the decision of the investigating judge, it became known that in order to make a decision on the measure of restraint, the judge studied the search protocols, which indicated some documents confirming the illegal actions of I. Popovskaya. Nevertheless, it is worth agreeing with the defenders of I. Popovskaya, who stated that the protocols indicate only the list of documents that were seized during the search, without specifying the content of these documents. That is, such evidence does not allow the judge to get acquainted and evaluate the text of the documents.
Assessment of the possibility of escape with reference to the ECtHR case-law
In assessing the risk of escape, the investigating judge referred to the ECtHR judgment in “Becciev v. Moldova” and pointed out that the risk should be assessed taking into account the following factors: character of a person, his\her moral principles, place of residence, work, income, family ties, as well as any other ties. However, the judge did not evaluate all the factors listed by him. In fact, a detailed assessment is given only to the factor of “income”, while such factors as “character of a person” and “his moral principles” are assessed in just one, very standardized, phrase “… was not previously convicted; at the place of work, she is characterized positively.” This approach may indicate that the case-law of the ECtHR (even within the framework of one specific paragraph of one case) was used selectively. This episode indicates the need for a more detailed study of references to the rest of the ECtHR practice used in the judgment, since over the years of monitoring the observance of the right to a fair trial in Ukraine, ISHR experts have repeatedly recorded attempts to insert the ECtHR case-law into decisions only to create the appearance of adherence to international standards of legal proceedings.
The ISHR will continue to monitor this case.