Lawyers A. Goroshinsky and O. Prosyanyuk, photo: gordonua.com  

The experts of International Society for Human Rights (ISHR) began monitoring of the next criminal procedure against  ex-president of Ukraine Victor Yanukovych in November, 2017, accused of crimes against protestors on Maidan in winter 2013/2014. During the winter 2017/2018 inquisitional judge made off an acquaintance with the case and decided to allow the special in absentia pre-trial investigation.

Some events, accompanying a decision-making about in absentia pre-trial investigation conflict with the right to a fair judicial hearing.

Removal of official defenders of V. Yanukovych from participating in the trial. During monitoring, the representatives of ISHR on the numerous occasions observed “tension” between the judge and the advocates. As a result, as soon as possibility to remove the defenders of V.Yanukovych from the trial arose, they were removed. On December, 11, 2017, since advocates of ex-president were not in a court (because of participation in another trial that was taking place at the same time) Judge S. Sheput’ko initiated appointment of a public defender. On the basis of information received from advocates, V. Yanukovych’s defense tried to notify the court on time about impossibility to take part in the hearing, however the judge perceived a failure to appear in court as possibility to appoint a public defender.

Regardless of presence or absence of good reasons of failure to appear of advocates at the hearing, the attempt of judge to remove official advocates of ex-president right after their first absence in the court arises a lot of questions. Is it possible to characterize these actions as actions, that fully accounted the rights of defendant, in particular the right to defense?
Constant “swapping” of public defenders. After the actual removal of official advocates of V.Yanukovych, the judge three times removed the public defenders appointed by the Center of Free Secondary Legal Help. Reason for dismissal was the requirement of advocates to give enough time to acquaintance with vast amount of case materials  (hundred of volumes, and forty hours of video). Only the fourth public defender, I.Angelin, satisfied the expectations of the judge. A new advocate was ready to become familiar with the case within five days (or three work days), and did not ask for extra-time to discuss his legal position with the client!

As a result, on the first hearing that advocate Angelin took part in, a court was able to appoint judgment on special pre-trial investigation in regard to V. Yanukovych. State advocate of ex-president did not appeal on this decision of the court, despite the fact that V. Yanukovych does not agree with it.

Prevention of the return of official advocates of V. Yanukovych into the trial. On February, 7,  2018 official advocates of ex-president О. Prosianyuk and А. Goroshynskiy made an effort to get back into the trial, however after a dispute with a judge and prosecutors they were forced to leave the courtroom and escorted out by the police. This situation lead to the following consequences:  1) Prosecutor General’s office charged V. Yanukovych’s advocates with criminal offence after the Member of the Parliament М. Naiem’s appeal to the facts of pressure on a public defender I.Angelin; 2) Ukrainian National Bar Association (self-governed institution of attorneys) conducted a special session in regard to this situation, and came to the conclusion about the absence of pressure on advocate Angelin and found evidence of pressure on the advocates  Prosianiyk and Goroshinskiy confirmed by intervention on the part of the Member of the Parliament from pro-president party ‘Block of Peter Poroshenko’ and start of investigation against these advocates.

Dispute around participation of ex-president’s official advocates in process arose around advocates’ Prosianyuk and Goroshinskiy authority to represent V. Yanukovych. In opinion of the court, of office of public prosecutor and advocate Angelin such authority was absent, while the advocates Prosianyuk and Goroshinskiy prove the opposite. From our point of view, this situation needs to be examined from the position of defendant’s right for defense. In accordance to Paragraph 3 of Art. 6 of the Conventions for the Protection of Human Rights and Fundamental Freedoms every defendant in the charged with criminal offence has a right to use the help of the defender chosen on his discretion. Is it possible to name I.Angelin as such a defender? No. It is confirmed by the statement of V. Yanukovych (dated 02/22/2018), in which he criticizes advocate Angelin.  In relation to doubts about the ability of advocates Prosianyuk and Goroshinsky to represent V. Yanukovych, it remain unclear what prevented Judge Sheput’ko to postpone the hearing in order to settle this question and to insure complete realization of the rights of the defendant?

Maybe, someone from participants of the trial had the impression, that the mere fact of participation of any advocate in the hearing is enough for the observance of the rights of the defendant. Such opinion is not confirmed by the case law of the European Court of Human Rights (ЕСtHR). For example, in the “Аrtico v. Italy” case ЕСtHR  recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defense in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive. The Court explains, that paragraph 3 of article  6 of  Convention speaks of “assistance” and not of “nomination”, because the simple nomination does not yet provide an effective legal help. Thus competent authorities should take steps to ensure that, in the particular circumstances of the case, applicants effectively enjoy the right to which they are entitled (case of “Balliu v. Albania”).

Problem with participation of public defenders in the criminal cases that having a “political side” are common for Ukraine. In a Report “Monitoring of observance of the right to a fair trial in Ukraine” for 2017, ISHR specified that abuse of institute of public defenders was one of the basic negative tendencies of violation of the rights of defendants and accused.

The representatives of ISHR will continue monitoring of this litigation. The previous materials can be found here.

Expert council