On December 3, 2021, the High Anti-Corruption Court of Ukraine (VAKS) began consideration of the prosecutor’s petition to choose a measure of restraint in the form of detention for V. Galanternik, in respect of whom a special pre-trial investigation was previously issued (See IAC ISHR report dated 11.09.2021-11.10.2021).
The prosecution asked the investigating judge to choose a measure of restraint in the manner prescribed for a special pre-trial investigation.
Nevertheless, the lawyers urged the judge to pay attention to the fact that V. Galanternik is not hiding and wants to exercise his right to defense directly via videoconference. Lawyer O. Prosyanyuk emphasized that there is no procedural opportunity to appeal against the decision of the investigating judge to conduct a special pre-trial investigation against V. Galanternik. But the defense wants to ensure that the client is able to participate in the hearings because he wants to be personally involved. In addition, the observer of the Information and Analytical Center of the ISHR noted the following points, which the defenders confirmed with documents:
- Galanternik notified VAKS of his whereabouts even before the start of the trial. And he received a response from the court that his appeal was received and will be transferred to the investigating judge, who will consider any procedural action against him.
- A notification from the prosecutor of the Special Anti-Corruption Prosecutor’s Office V. Musiyaka was sent to the Israeli address of V. Galanternik, and a response was received, which confirms the fact that the authorities of the pre-trial investigation know his whereabouts.
These facts, in the opinion of the ISHR experts, deserve on a reaction from the investigating judge. The European Convention on Human Rights classifies the right to defend oneself in person as an important component of the right to a fair trial (paragraph 3 (c) of Article 6 of the ECHR). Although this is not explicitly mentioned in paragraph 1 of Article 6 (Article 6-1), the ECtHR in paragraph 27 of the judgment in the case of “Colozza v. Italy” notes that the object and purpose of the article as a whole show that a person accused (suspected) of committing a criminal offense, has the right to take part in the court hearing. Moreover, subparagraphs (c), (d) and (e) of paragraph 3 (Article 6-3-c, Article 6-3-d, Article 6-3-e) guarantee to each accused/suspect the right to defend himself personally. Taking into account the position that the Convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective (“Mironescu v. Romania”, paragraph 45), a parallel can be drawn between this hearing and the ECtHR decision in the case “Yakovlev v. Russia”. Considering the issue of personal participation of a person in the hearing, the ECtHR in paragraphs 21-23 indicated that in order to ensure the right to a fair trial, the party to the case must be informed about the hearing in such a way that he or she can be present if he or she decides to exercise the right established by national legislation. Guided by this position, it can be assumed that the refusal to ensure the right to personal participation of V. Galanternik by not notifying him of being summoned to court at his place of residence, within the framework of international legal assistance, is contrary to the essence of the European Convention and the right to a fair trial, since the right to participate in the trial via videoconference is indeed provided for by Section IX of the Code of Criminal Procedure of Ukraine. In the decision “Shandrov v. Russia”, the ECtHR confirmed the above position that the right to a public hearing is meaningless if the party to the case was not informed about the hearing in such a way as to be able to attend it, if he or she decides to exercise the right to appear, established by national law (paragraph 27). And it also found violations of Article 6 of the ECHR.
The prosecution and the investigating judge agreed that if V. Galanternik wants to be present in person at the hearing, he must also appear in person at the pre-trial investigation authorities or the court. And such a position, in the opinion of the ISHR experts, runs counter to the practice of the European Court, which noted in paragraphs 81-90 of the judgment in the case of “Vladimir Vasiliev v. Russia”, that the right to a personal presence at a hearing should not automatically presuppose the physical presence of participants. One of the forms of ensuring this right can be the provision of video conferencing of the participants. That what the defense actually asked for.
The ECtHR insists that trials in absentia are only permitted if (a) the authorities have made every effort to trace the accused and notify him/her of upcoming hearings, and (b) the accused parties retain the right to a full retrial in case of their new appearance (“Colozza v. Italy”, paras. 26-33). And in this case, the ISHR experts cast doubt on the fact that the authorities made every effort to find and notify V. Galanternik.
In the case of “Colozz v. Italy”, the European Court noted that attempts to track down Mr. Colozz were insufficient: they were limited to the apartment where he was looked for in 1972, and to the address indicated in the records of the chief registrar, but it was known that he no longer resides there. The ECtHR attaches particular importance to the fact that certain services of the Rome prosecutor’s office and the Rome police have succeeded in obtaining Mr. Colozz’s new address in the context of other criminal cases; thus, it could be found even though – as the Government referred to as an excuse – no data was available. It is difficult to reconcile the situation established by the Court with the diligence that Contracting States must display in order to guarantee the effective exercise of the rights guaranteed by Article 6.
As previously noted in the report on the case of V. Galanternik from 11.09.2021-11.10.2021 and taking into account the information above, the pre-trial authorities, namely the prosecutor and the VAKS, knew about the whereabouts of V. Galanternik and even corresponded with him. The refusal of state bodies to use every opportunity to contact a person to ensure his right to personal participation in the hearing may be regarded as a derogation from international obligations and a violation of Article 6 of the ECHR, which guarantees the right to a fair trial.
The tendency of the courts to ignore international standards and case-law of the ECtHR is also alarming. The observer of the IAC ISHR notes that the investigating judge of VAKS did not comment in any way on the request of the defense to ensure the right of V. Galanternik to personally participate in the hearings by videoconference in the manner prescribed by Section IX of the Code of Criminal Procedure regarding international cooperation.
Due to the need for lawyers to participate in another hearing, a break was announced in the trial until December 7, 2021. The Information and Analytical Center of the ISHR will continue to monitor this proceeding.