Monitoring of criminal proceedings of Popov S.V. (hearing 10.06.2020)

On October 6, 2020, in the Kremensky District Court of the Luhansk Region, a hearing was held in the case No. 433/300/19 on charges of Sergei Vyacheslavovich Popov of committing crimes under Part 4 of Art. 187, part 3 of Art. 289 of the Criminal Code of Ukraine (robbery, illegal seizure of a vehicle).

It should be noted that the indictment went to court on February 21, 2019. Thus, the case has been heard for almost 2 years. All this time, the accused is kept in custody.

Such a long time for consideration of the case is due to the fact that it was repeatedly transferred from one court to another. Initially, the indictment was filed with the Troitskiy District Court of the Luhansk Region. However, due to the lack of an opportunity to form a panel of judges, the case was transferred to the Starobelskiy District Court of the Luhansk Region. Then, due to the impossibility of forming the composition of the court in the Starobelskiy district court of the Luhansk region, on June 11, 2019, the case was transferred to the Rubezhanskiy city court of the Luhansk region. On January 23, 2020, the case was again transferred to another court, the Kremenskiy district court of the Luhansk region, on the basis of the impossibility of forming a composition of the court in the Rubezhanskiy city court of the Luhansk region to consider the specified criminal proceedings.

Due to the lack of judges in this case, the problem arises of non-observance of a reasonable time frame of the trial, since each time the case is transferred to a new court, the consideration of the case begins anew.

Art. 6 of the European Convention recognizes that every person prosecuted in a criminal case has the right to receive, within a reasonable time, a final decision on the justification of the charge against him, or rather to ensure that the accused do not remain under the weight of the charge for a long time and the validity of the charge (“Wemkhov v. Germany”, para. 18, “Giulia Manzoni v. Italy”, para. 25, “Brogan and Others v. the United Kingdom”, para. 65).

According to the ECtHR, “by requiring the consideration of cases within a ‘reasonable time’, the Convention emphasizes the importance of administering justice without delay, which may jeopardize its effectiveness and credibility” (“Vernillo v. France”, para. 38). The reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and taking into account the following criteria: the complexity of the case, the conduct of the applicant and the relevant state authorities (“Pelissier and Sassi v. France”, para. 43).

The ECtHR recalls that the accused in criminal proceedings should have the right to have the proceedings in his case carried out with particular care, especially in the case of any restriction of freedom for the period until the end of the proceedings. Article 6 of the Convention requires the courts to use all available procedural means to establish the guilt or innocence of a person without undue delay. This requirement is intended to ensure the earliest elimination of uncertainty regarding the legal fate of the accused, who remains in a state of uncertainty throughout the entire period of proceedings, regardless of whether the proceedings are ongoing or have been suspended (“Doroshenko v. Ukraine”, para. 41).

Present at the hearing were the prosecutor L.V. Borovkova, the defender I.N. Shmuylova, and accused S.V. Popov. The translator and the victims did not appear. The prosecutor considered it possible to hold a hearing in the case with such an attendance. The accused and his defense counsel spoke out against the consideration of the case without victims, however, the court, having indicated that the participation of victims is not obligatory, decided to consider the case in this composition.

The prosecutor filed a petition to replace the interpreter, due to the fact that the previous interpreter did not appear at the court hearings. S.V. Popov challenged the interpreter on the grounds that she did not have a document confirming the specialty of an interpreter from Ukrainian into Russian. The defense attorney supported her client’s petition. Prosecutor L. V. Borovkova objected to the satisfaction of the application for challenge in connection with its unfoundedness.

The panel of judges refused to satisfy the request to challenge the interpreter. The court motivated its decision by the fact that there is no clear definition of the concept of “interpreter” in the norms of the criminal procedural law. From the analysis of the Criminal Procedure Code of Ukraine, it follows that the interpreter is a participant in criminal proceedings who is fluent in the state language, as well as the language of the participant in the proceeding, who needs translation into the language he knows. Before deciding the issue of admitting an interpreter to participate in the case, her competence was checked by the court, she is a citizen of Ukraine, knows the state language, is a teacher of Russian language and literature and has 34 years of teaching experience.

In paragraph 48 of the ECtHR judgment of November 28, 1978 in the case “Ludika, Thompson and Koch v. Germany”, the Court noted that the right to free assistance of an interpreter applies not only to oral statements in court proceedings, but also to documentary materials and pre-trial proceedings. In particular, anyone charged with a criminal offense who does not understand or speak the language used in court has the right to receive free assistance from an interpreter who translates and interprets all those documents or statements in proceedings against him in order to understand what he needs or needs to be announced in court in the language that is used there in order to exercise his right to a fair trial. However, it cannot be considered that paragraph 3 (e) of Art. 6 of the Convention requires written translation of all written evidence or official documents that are in the proceedings. The assistance of an interpreter should be such as to ensure that the defendants understand the case against him and conduct his defense, in particular, due to the fact that through the interpreter he can put forward his version of events to the court (indicated in paragraph 74 of the ECtHR judgment of December 19, 1989 in the case “Kamazinski v. Austria “). Also, given the need to ensure the reality and effectiveness of the law guaranteed by paragraph 3 (e) of Art. 6 of the Convention, the duty of the competent authorities is not limited to the appointment of an interpreter, but if warned, in specific circumstances, it can also expand, including the establishment of some control over the proper quality of the translation, as the Court expressed its opinion in paragraphs 33 and 36 of the judgment of May 30, 1980 in the case of “Artico v. Italy”.

The court then continued to examine the evidence.

The next hearing is scheduled for November 3, 2020. The International Society for Human Rights will continue to monitor and clarify all the details of this proceeding.