Monitoring of criminal proceedings of Andrey Polivoda (hearing on 11.25.2020)
On November 25, 2020, the Solomensky District Court of the city of Kiev considered case No. 760/20778/16-k on charges of Andrey Polivoda of committing a crime under Part 2 of Article 345 of Ukraine, namely, intentionally inflicting beatings on a law enforcement officer, light or medium severity of bodily harm in connection with the performance of this employee’s official duties.
Recall that Andrey Polivoda was detained on 10/01/2016 near the Court of Appeal of the city of Kiev for an attack on a police officer, when the accused tried to “break through” to the trial in the case against Andrey Romanyuk, Evgeny Koshelyuk, Vita Zaverukha, Nikolay Mnishenko and Danil Sitnikov, known as the name “case of Zaverukha” or “case of Vinnytsa terrorists”.
The court session on November 25, 2020 began with the interrogation of witnesses for the defense, one of whom was former member of the Parliament Igor Lutsenko and lawyer in the “Zaverukha case” Alina Samarets.
Before the start of the interrogation, the judge warned the witnesses about criminal responsibility for giving deliberately false testimony.
During the interrogation, lawyer Alina Samarets emphasized that the case of 10/01/2016, which was considered in the Kiev Court of Appeal, was open, therefore, in her opinion, the police officers exceeded their powers, in particular when they did not allow activists and journalists to go to this hearing as free listeners.
After the interrogation of both witnesses, the defense announced its desire to interrogate eight more witnesses at the next hearing. The prosecutor spoke against the advisability of interrogating such a number of witnesses, since none of the previous ones, in his opinion, said any specific information that could directly relate to the indictment against Andrey Polivoda.
In such cases, the European Court of Human Rights notes that an assessment of the importance of a witness can be made on the basis of an analysis of the importance of this particular evidence in the structure of the indictment and, accordingly, the sentence (“Birutis and Others v. Lithuania”, paras. 28-35).
The International Society for Human Rights believes that such a position of the ECtHR can be interpreted in such a way that only by questioning a witness can the importance of his testimony in a particular case be assessed. Hence, we can come to the following conclusion: the value judgment of the prosecutor that none of the previous witnesses, in his opinion, indicated any specific information that could directly relate to the indictment, cannot be taken as fundamental.
Although it is not the function of the ECtHR to express an opinion on the suitability of the evidence presented, the lack of justification for refusing to examine or summon a witness may, in its opinion, lead to a restriction of the rights of the defense, incompatible with guarantees of a fair trial (“Popov v. Russia”, para. 188; “Bokos- Guesta v. The Netherlands”, para. 72; “Wierzbiki v. Poland”, para. 45; “Vidal v. Belgium”, para. 34).
Moreover, if the defendant’s request to question witnesses is not burdensome, is sufficiently substantiated, is relevant to the subject of the charge and could strengthen the position of the defense or even lead to the acquittal of the accused, the domestic authorities must provide compelling reasons for rejecting such a request (“Topek v. Croatia”, para. 42; “Polyakov v. Russia”, paras. 34-35).
Following the specified legal positions from the practice of the ECtHR, the Solomenskiy District Court will question the witnesses of the defense at the next court hearings.
The next court session is scheduled for 01/06/2021. Experts from the International Society for Human Rights will continue to monitor this trial.