On October 19, 2017, in Izyum (Kharkov region), another trial was held on the case of an underage opponent of the Ukrainian authorities Maksim Nitsenko who is accused of preparing a diversion (an attempt to destroy a railway bridge in Kharkov region). The experts of the International Society for Human Rights have been monitoring this trial since March 2017.
In the course of the court hearing an issue of the preventive measure for the accused was considered (Maksim Nitsenko has been kept in the Pre-trial Detention Centre for three years already). The court passed a ruling to continue keeping the accused in custody, despite the attempts of the lawyer to refer to the cases of Nellya Shtepa and Vladimir Bik (where the accused were transferred from Pre-trial Detention Centres to house arrest). It must be noted that keeping in custody is an exclusive preventive measure, and for it to be applied and to be subsequently continued (every two months), the prosecutor’s office must provide weighty arguments substantiating this very measure. But in the process of the court hearing the prosecutor was grounding the necessity of further keeping M provide Nitsenko in the Pre-trial Detention Centre in quite a passive way, while the defense was doomed to substantiate the arguments in favor of a softer preventive measure. This contradicts with the norms of the criminal process (articles 183, 184 Criminal Procedural Code), in fact, the parties have switched their roles, since it must be prosecution, not the defense, who shall substantiate the necessity of an exclusive preventive measure be applied. Regrettably, such a situation is typical for the Ukrainian justice, in a number of cases the experts of ISHR came across such a violation of the procedural rights resulting in violation of the right to a personal freedom.
Yet another “usual” problem of this process is the failure to appear before court by a legendary witness I. Petrov whose evidence in many instances is used by the prosecution for accusation. The prosecutor informed the court that the witness was somewhere in the zone of the antiterrorist operation in the east of the country (АТО) and could not be contacted for the moment. Failures to appear on the part of I. Petrov are regular and they delay the process significantly, but the court again made a general statement on the necessity of contacting the witness, and the prosecutor, as usual, ensured the court that he would do everything possible to contact him. It must not be forgotten that reluctance to create discomfort for I. Petrov which is, however, stipulated by the procedural legislation (for example, to apply an enforced appearance to him stipulated by articles 139, 140 of the Criminal Procedural Code) results in delaying the whole process and continued custody of Maksim Nitsenko. As a result, unwillingness to disturb one person brings limitations of fundamental rights of another one. Moreover, the practice of the European court of human rights shows that a lack of possibility for the party of defense to interrogate a key witness constitutes a violation of article 6 of Convention for the Protection of Human Rights and Fundamental Freedoms (Yevgeniy Ivanov against Russia).
In the process of the court hearing a transcript of the conversation between I. Petrov and Maksim Nitsenko discussing the attempt of destroying a bridge was examined. Based on everything said by I. Petrov , it can be concluded that he, being aware of the audio recording, was provoking Maksim Nitsenko by asking questions in a way which later could be used against the latter in court. It was I. Petrov who claimed he would provide everything required to prepare the blast (explosives etc.). The court also considered the materials provided by the Security Service of Ukraine (SBU) describing preparation of explosives dummies (how, when and who of the SBU staff prepared them). The evidence considered in the process of the court hearing indicates that Maksim Nitsenko was a victim of a special operation performed by SBU, on the part of the intelligence service, there had been provoking of the accused to commit unlawful actions. It is important to clarify that the practice of the European Court for Human Rights indicates that the evidence obtained with the help of a provocation cannot be used in court (Ramanauskas against Lithuania, Veselov and others against Russia).
The next court hearing is scheduled for November 7, 2017. The experts of the International Society for Human Rights will continue monitoring and clarifying the details of this trial. The previous materials can be accessed here.
Expert Council of ISHR