On November 9-10, the Supreme Anti-Corruption Court considered the motion of the detective of the National Anti-Corruption Bureau of Ukraine (NABU) to conduct a special pre-trial investigation against businessman Vladimir Galanternik suspected of creating and leading a criminal organization in Odessa.
A feature of this proceeding is a controversial point regarding the notification of Vladimir Galanternik on suspicion of the crimes incriminated to him and his acquisition of the status of a suspect. A clear, unmistakable answer to this question is an important condition for conducting a special pre-trial investigation.
Ukrainian legislation provides for the possibility of conducting a pre-trial investigation without the participation of a person (in absentia) if, in addition to the reasonableness of the suspicion of committing crimes, the person is also hiding from the investigation. During the hearing, the NABU detective tried to prove the need for a special pre-trial investigation. NABU representatives stated that this format of investigation is necessary due to the fact that Vladimir Galanternik is hiding from the investigating authorities.
During the hearing and familiarization with the materials of the case, ISHR observer noted several key points:
At the time of drawing up the report on the suspicion, Vladimir Galanternik did not reside in Ukraine. The investigating authorities were notified of his actual location in the Great Britain and consular registration in Israel. As it turned out, NABU detectives sent a notification about the suspicion of Vladimir Galanternik to his Ukrainian addresses, although he himself informed the investigating authorities in writing about his place of residence abroad. In addition, one of the addresses to which the notification was sent is the address of a non-residential premises, which a priori cannot be considered a place of residence. The lawyers provided evidence that Vladimir Galanternik has no real estate and actual place of residence in Ukraine since 2017, and people living in the neighborhood with the addresses indicated by the detective confirmed in writing that no one has been living there for more than 5 years. The defenders were ready to ensure the attendance of witnesses, but the detective said he doubted the authenticity of the signatures and did not consider this important evidence. In his opinion, sending notifications to Ukrainian addresses was enough to notify a person of a suspicion. ISHR experts note that the fact that Vladimir Galanternik himself or through his lawyers notified the pre-trial investigation bodies about his place of residence/stay abroad, made it possible to notify him of suspicion in a manner specified by law. But the reasons why this was not done were not named by the detective for the entire time of the hearing.
Compliance with the European Convention on Mutual Assistance in Criminal Matters.
According to Ukraine’s international obligations (which also apply to Great Britain and Israel), in the case of Vladimir Galanternik, service of summons and writs must be carried out by representatives of the country in which he is located (Article 7 of the European Convention on Mutual Legal Assistance in Criminal Matters). To this end, the Ukrainian side had to send the relevant subpoenas to the competent authorities of Israel and/or Great Britain. However, ISHR experts did not receive any intelligible information about attempts to service any subpoenas to Vladimir Galanternik by the competent authorities of the above countries. Thus, it is possible to question the fulfillment of the condition of notifying a person of suspicion and observance of his right to access to justice.
Such disregard by NABU detectives and the judge of High Anti-Corruption Court of Ukraine of the norms of the Convention can be regarded as a deviation from international obligations assumed by Ukraine and as a direct violation of the right of Vladimir Galanternik to access to justice (since he was not notified of the suspicion in the manner provided for by the Convention) and, accordingly, the right to a fair trial guaranteed by the ECHR.
Consequences of deviations from international standards and conducting a special pre-trial investigation.
In addition to a direct disregard to international standards, conducting a special pre-trial investigation is a step towards conducting judicial investigation in absentia in the future. Such a development of events may lead to a number of violations of the rights of Vladimir Galanternik (who notified the NABU in writing of his readiness to cooperate), for example, it will deprive him of the opportunity to defend himself personally (the right guaranteed by paragraph 3 (c) of Article 6 of the ECHR), to participate in the interrogation of witnesses, etc. This is also confirmed by the practice of the ECtHR, according to which the accused, as a rule, must have an adequate and proper opportunity to question prosecution witnesses (“Shatashvili v. Germany”). Moreover, all evidence generally has to be presented during a public hearing in the presence of the accused (“Solakov v. The Former Yugoslav Republic of Macedonia”).
International wanted list.
During the hearing, NABU detectives several times emphasized that Vladimir Galanternik is on the international wanted list. However, it turned out that in relation to Vladimir Galanternik recorded only the fact that NABU detectives applied to the Department of International Police Cooperation of the Ukrainian police, which in itself does not bear international obligations and does not mean that the person is included in the international wanted list. According to the printouts from the official Interpol website provided by the defenders, Vladimir Galanternik is absent from the international wanted list.
ISHR experts consider it necessary to note that the totality of statements on which the detective relied in his substantiation of the need for a special pre-trial investigation is rather shaky. There is concern about the objectivity and completeness of the judge’s consideration of the motion and the fact that she was not interested why the investigating authorities did not even try to send a notification of suspicion to the addresses provided to them by Vladimir Galanternik.
In addition, ISHR observers note that the detective focused not on the main issue, i.e. the need for a special pre-trial investigation, but on the validity of the suspicion itself. Emphasis was placed on the guilt of Vladimir Galanternik, his role in the committed crimes (moreover, part of the evidence, according to defense, was taken from materials of completely different cases).
According to ISHR experts, the pre-trial investigation authorities did not use all the available tools to try to contact Vladimir Galanternik. And since a special pre-trial investigation could lead to a violation of the right to a fair trial, it was expected that the investigating judge would return the motion to the detectives for revision, namely, sending a notification to the address that the lawyers named as the current place of residence of Vladimir Galanternik.
In this regard, the judge’s decision to satisfy the detective’s motion to conduct a special pre-trial investigation against a person who, judging by the objective assessment of the ISHR observer, is not hiding and is ready to inform about his movements through lawyers, raises doubts about impartiality (in the understanding of paragraph 1 of Article 6 of ECHR). According to the ECtHR decision in “Bochan v. Ukraine”, impartiality should be determined in accordance with an objective criterion: whether the judge had sufficient guarantees to exclude any reasonable doubts in the decision-making process.
Regardless of whether in the future, during the trial, violations of the right to a fair trial, ignoring the norms of the Criminal Procedure Code (in terms of conducting a special pre-trial investigation against a person who is not hiding from the investigation) and international standards at the stage of pre-trial investigation can become a reason to doubt the merits of the verdict.