11/04/2021, in the Zhovkivsky District Court of the Lvov Region, with the participation of Judge Z. L. Oprisk, a court hearing was held in case No. 444/482/21 on charges of Y. N. Shovgenyuk of committing a criminal offense under Part 2 of Art. 15, Part 4 of Art. 190 of the Criminal Code of Ukraine, namely, large-scale fraud. The court session was attended by the prosecutor S. V. Prots, the lawyer V. K. Matyashuk, the accused Y. N. Shovgenyuk, the victim I. I. Voloshin and also the representative of the victim Y. M. Kurakh.
The trial began with the consideration of several motions of Osadchikh, submitted to the court earlier, regarding his interrogation as a witness and also regarding the choice of a measure of restraint for the accused. In his petitions for choosing a measure of restraint, Osadchikh demanded to apply a more severe measure of restraint to the accused in the form of detention or an alternative measure of restraint in the form of a bail in the amount of 1 million 346 thousand 615 UAH, as well as the use of an electronic means of control. The prosecutor and the defense did not support the satisfaction of these requests, due to the fact that Osadchikh is a witness, and not a party to the case, which, in accordance with Part 4 of Art. 176 of the Criminal Procedure Code of Ukraine does not give him the right to submit such applications. In addition, during the pre-trial investigation, the accused was assigned a measure of restraint in the form of bail. Therefore, the court refused to satisfy the above applications.
After that, the defense presented to the court a petition on the inadmissibility of the prosecutor S. V. Prots to support the public accusation in criminal proceedings No. 12020000000000203 on the charge of Y. N. Shovgenyuk. The lawyer V. K. Matyashuk motivated the submitted application by the fact that the Prosecutor General and his first deputy are not empowered in specific criminal proceedings to determine a group of prosecutors. Considering the fact that the defense lawyer or other participants did not declare a challenge to the prosecutor, and the current Criminal Procedure Code of Ukraine does not provide for another mechanism for preventing a participant in judicial proceedings from participating in it, except through his challenge, the court refused to satisfy the defense’s motion. In the opinion of the prosecutor S. V. Prots, the submission of such motions and statements may lead to a delay in the consideration of the case and the delivery of a fair court decision.
It is worth noting that at the hearing, the court initiated the suspension of the broadcast of the trial in this case on the portal “Judiciary of Ukraine” during the interrogation of the victim and witnesses.
All participants in the trial supported the suspension of the broadcast of the trial. In these actions of the court, ISHR experts do not note violations of the norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular, Part 1 of Art. 6, which states that the judgment is announced publicly, but the press and the public may not be allowed into the courtroom throughout the entire trial or part of it in the interests of morality, public order or national security in a democratic society, if the interests of minors or the protection of the privacy of the parties so require, or – to the extent that it is strictly necessary by the court – when, in special circumstances, the publicity of the proceedings may harm the interests of justice.
Despite the fact that in criminal proceedings, publicity is quite expected, sometimes, given the norms of Art. 6 of the Convention, it may be necessary to restrict the transparency and publicity of the proceedings, for example, to protect the witness or his private life, or to facilitate the free exchange of information and opinions in the interests of justice (“B. and P. v. The United Kingdom”, para. 37).
The ECtHR, in another decision, ruled that in cases provided for by law, the public may be deprived of access to the court session; but such cases should be regarded precisely as an exception to the rule (“Ripan v. Austria”, para. 34).
IAC ISHR will continue to clarify the details of this proceeding.