Monitoring of the trial of Victor Yanukovich (a brief information on court hearings held on 25.10 and 26.10)
Lawyer Maksim Gerasko studying the case materials while the judges are conferring
On October 25 and 26, 2017, court hearings were held on the case of a high treason of ex-President of Ukraine Victor Yanukovich. In the process of those hearings the court excluded a public defender Maksim Gerasko from participation. Igor Lyashenko was appointed as a new state defender.
The situation with a repeated change of a public defender shows the inability to provide for representation of the accused in court involving state-appointed defenders. Position of the defender who stated he could not start consideration of the case in court until he familiarized himself with all the materials of the case served as the reason for exclusion. Upon deliberations, the court ruled to change a lawyer. This is the second time when a public defender leaves the process, in both cases the actual reason for such a decision was a refusal by the court to provide sufficient time (as seen by defenders) for defenders to get prepared for the case (such as consideration of all the materials of the case and a meeting with the client).
According to the legislation, the duty of lawyers is not limited to creating a visibility of equality in rights and presence of two parties at court hearings. First of all it is the actions on carrying out defence, representation and provision of other types of legal help to a client (article 1 of the Law of Ukraine “On Advocacy and Advocate Activity”). Paragraph of the Standards of provision of a free secondary legal help stipulates that, upon receipt of an order from a Centre of free secondary legal help, a lawyer shall familiarize himself, within a reasonable time defined by the law, with the materials of criminal proceedings, conduct a confidential meeting with a client during which he receives from a client the information that have legal significance, and agrees upon a legal position with a client. Taking into account the fact that a lawyer is expressly not allowed by the law to use his rights against the interests of a client and take a position in court contrary to his will (article 21 of the Law of Ukraine “On Advocacy and Advocate Activity”), the attempts by Maksim Gerasko to set up communication with the client was not his right but the obligation. The Code of Advocate Ethics stipulates that when performing his activity, the advocate must focus on the interests of a client, be competent and conscientious (articles 8, 11). Therefore, the refusal to examine petitions of both Vitaly Meshechek and Maksim Gerasko on requesting to grant enough time for a full familiarization with the case (defined as per their respective possibilities and work load) of such a complexity and a wide publicity, constitutes a violation of the adversarial principle and a principle of equality in court, as well as a violation of the right to protection.
The experts of ISHR have noted more than once that in the case of Victor Yanukovich, a full-fledged representation of interests of the accused involving public defenders is impossible. The defenders attracted in such a way cannot coordinate their position with a client or are unable to perform a quality familiarization with the materials of the case, and are doomed to state their recusal or take a position where their participation in the process would be limited to demands on requesting a sufficient time for familiarization with the case and the attempts to meet with a client.
The first public defender realized he would not be able to perform his obligations in a quality manner within a limited time and stated his recusal. In the situation with Maksim Gerasko the court has pointed that the latter is incompetent, because of his refusal to comment on the evidence of the prosecution, without having examined the materials in full; refusal to work overtime filing applications on lunch breaks and impossibility to work overtime. The experts of the ISHR become concerned with a possible pressure exercised on the part of the panel of judges in respect of a future public defender of Victor Yanukovich, by the way of creating a precedent of a change of a defender based on personal considerations of judges.
The court makes an attempt to promptly solve a problem related to the absence of a defender for Victor Yanukovich in the process. Within less than a day, the panel of judges sent a request to the Centre of free secondary legal help and a new lawyer, Igor Lyashenko, was appointed. He has requested two months for familiarization with the materials of the case. However, for this new third defender appointed by the state (and the fourth one in the process), the time for familiarization with the materials has also been cut by the court; he was granted only a month and one week.
As the result, the position taken by the court – limitation of defenders in time provided for familiarization with the case in order not to delay the process, brings the opposite results. More than three months have passed from the moment public defenders started participating in the process. During this time, third in a row defender has been appointed, while the process is again put on hold, because a new defender required time for familiarization with the materials of the case. The period between the first participation of the state defender Vitaly Meshechek and the start of hearings involving Igor Lyashenko will comprise almost five months. In the past, it has already resulted in defenders exiting from the process twice.
The next hearing is appointed for December 4, 2017. The experts of the International Society for Human Rights will continue monitoring of this trial. The previous materials can be accessed here.
Expert Council of ISHR