Monitoring of the case of Sergei Novak and others (session 27.09.2019)
On September 27, 2019, a hearing was held in the Ordzhonikidze district court of Zaporozhye in the case of Novak S., Khristenko O., Kononyuk A., and Boginsky R., who participated via the online broadcast hearing.
Sergey Novak is accused of committing a crime under part 2 of article 187 of the Criminal Code of Ukraine (robbery committed by prior conspiracy by a group of people). This article provides for imprisonment of 7 to 10 years with confiscation of property. In addition to this article, the remaining defendants are charged with Part 2 of Art. 189 (extortion by prior conspiracy by a group of people).
The trial began with a delay for one and a half hours. After the judge announced all the participants in the trial, the defendant Boginsky appealed to the court for the opportunity to hear the case without him due to his health problems. He stated that he was brought to a videoconference under threat from the head of the medical unit. The defendant’s lawyers also appealed to the court to provide their client with medical assistance and to determine the possibility of his further participation in the trial. Judge Apollonova announced a break for 45 minutes to establish the state of health of the defendant.
In fact, the break dragged on for an hour and a half. The investigator provided a certificate from the detention center, which she personally went to pick up. The certificate states that the defendant Boginsky has no contraindications regarding his presence at the hearing in the video conference mode. However, there was no outgoing number on the certificate, which is provided for all outgoing documents from the remand prison. There is also no mark on the provision of medical care, no diagnosis is indicated. The certificate indicates that it was issued by a medical assistant. Lawyers filed a petition on the impossibility of introducing this document into the case, since its authenticity is doubtful. The court rejected the petition, attached a certificate to the case and continued the hearing.
The prosecutor made a request to extend the terms of the pre-trial investigation from two months to four, namely until 12/01/2019, referring to the gravity of the charge and the number of defendants. The lawyers filed a counter-petition on the inappropriateness of filing the petition of the prosecutor in court, since there is an order and limitation of filing the petition. Also, the defense made a request for the opportunity to familiarize themselves with the court records and the procedure for the distribution of judges. The lawyer Kravets also indicated that in the petition of the prosecution in the decision attached to the petition, Judge A. Vorobyov is indicated, and in the final part is the signature of Judge Apollonova.
The court rejected the petitions of the lawyers, arguing that the corrections were recorded and entered, and that all deadlines and procedures were followed. The question of why the lawyers and their clients were not provided (according to the Criminal Procedure Code 3 hours before the request was announced) copies of the corrected documents, remained open.
Lawyer Lyapin protested the extension of the pre-trial investigation, justifying this by delaying the trial by the prosecution. Lyapin noted that in two months of pre-trial investigation, only one interrogation was conducted with his client Novak. And considering that Novak refused to give evidence at the interrogation because of poor health, in fact, no procedural actions took place in two months. The lawyer expressed the opinion that it would be enough for the investigation to extend the term of the pre-trial investigation by one month.
Attorney Kravets filed a motion to challenge the investigating judge Apollonova, pointing to the repeated rejections of the lawyers’ petitions, which indicated violations of the deadlines for filing documentation, as well as inadequate medical assistance to the defendant and possible judgmental bias. Judge Apollonova left, and to decide on the challenge of the judge after half an hour, investigating judge Vorobyev appeared in the courtroom.
During the identification of the participants in the trial, Judge Vorobyov revealed that the lawyer with whom the suspect A. Kononyuk had an agreement signed, was not present in the courtroom because he was busy at another trial and, accordingly, the public defender Natalya Nikonchik provided by the Center for Secondary Legal Assistance does not have the authority to represent Kononyuk when considering the extension of the pre-trial investigation.
The judge continued the hearing without the defense of one of the suspects.
Attorney Kravets once again demanded that Judge Apollonova be challenged, since she did not adequately respond to the complaints of the suspected Baginsky about poor health, nor to reports of pressure from the remand prison, to refusal to provide medical assistance, or to improperly filed petitions of the prosecution. This gave reason to assume the bias of the judge. All lawyers supported this petition.
The prosecutor and investigator protested, Judge Vorobyov left to the deliberation room.
After coming back from the deliberation room, he rejected the lawyer’s request and the hearing continued with the participation of Judge Apollonova.
Lawyers protested the prosecution’s request for an extension of the pre-trial investigation, saying that the investigation deliberately delays the trial without taking proper steps in the investigation. The investigator, without providing the proper documents, explained that the expert in forensic immunological examination is on sick leave and it will take time until mid-October to conduct these examinations. To conduct a phonoscopic examination, it is necessary to send materials to Kiev. Officially, a phonoscopic examination is conducted in a month. The court was not interested why the materials were not sent for examination for 2 months.
The judge left to the deliberation room, and after she ruled to extend the terms of the pre-trial investigation for another two months, namely until 12/1/2019.
The court went on to consider the petition for an extension of the measure of restraint in the form of detention of each of the suspects individually. After hearing the views of the parties, the court decided to extend the measure of restraint in the form of detention for 2 months for the defendants Khristenko, Kononyuk and Boginsky. It was decided to change the measure of restraint for Novak from detention to round-the-clock house arrest for a period of two months.
Experts from the International Society for Human Rights will continue to monitor this lawsuit.