Monitoring of the case of Yuri Rossoshansky
On June 3, 2020, the consideration of the case of Yury Rossoshansky continued in the Shevchenkovsky District Court of Kiev.
Yuri Rossoshansky is charged with the murder of human rights activist Irina Nozdrovskaya. He is charged with paragraph 4 of part 2 of Article 115 (premeditated murder, committed with extreme cruelty) of the Criminal Code of Ukraine.
On December 29, 2017, it became known about the disappearance of the well-known human rights activist Irina Nozdrovskaya. And on January 1, 2018, her body was found in the river near the village of Demidov, Kiev region. Sometime later, the police detained a murder suspect, Yuri Rossoshansky. Then he confessed to what he had done, saying that he had killed Nozdrovskaya out of personal enmity, but he soon recanted his testimony. The accused faces up to 15 years or life imprisonment.
The hearing began 30 minutes late due to a problem with the technology used to view the videos. Earlier, several sessions did not take place due to quarantine measures that are being carried out by the state.
The consideration of the case stopped at the statement of the accused about pressure on him. On this occasion, an appeal was sent to law enforcement agencies to verify all the circumstances. It was also decided to investigate the relevant video recordings of the conversation between the accused and law enforcement officers on January 8, 2018 (recorded immediately after the arrest of Yuri Rossoshansky). On the recording, one could hear that the accused talks about all the circumstances that happened, and also complains that the victim herself constantly provoked a conflict and pushed other people to do so, there were repeated threats to his family.
After watching the video, the defense lawyer of the accused drew attention to the fact that:
- It is necessary to look at the date and time of the beginning of the recording (08.01.2018 11:29:03am) corresponding to the protocol, at the place of the “interrogation”, namely the Vyshgorod police department, and also at the fact that there is no lawyer from the Center for the provision of free secondary legal aid Lychik M.M., who was obliged to arrive to defend the suspect at 08:35 am that day. According to Part 1 of Article 52 of the Criminal Procedure Code of Ukraine, the participation of a defense attorney is mandatory in criminal proceedings in respect of especially grave crimes. In this case, the participation of a defense attorney is ensured from the moment the person acquires the status of a suspect.
The case law of the ECtHR in its decision’s notes that the right of a person accused of a crime to an effective defense a lawyer is one of the fundamental characteristics of a fair trial proceedings (para. 51 of the “Salduz v. Turkey” judgment). Usually, the suspect must be granted access to legal aid from the moment he is arrested by the police or taken into custody (para. 31 of the “Dayanan v. Turkey” judgment). The right of the accused to effectively participate in the proceedings in a general sense includes not only the right to be present, but also the right to receive legal assistance as needed (para. 49 of the “Lagerblom v. Sweden” judgment; para. 89 of the “Galstyan v. Armenia” judgment). In this regard, the absence of a defense attorney on the video indicates a violation of the accused’s right to defense. Therefore, such an investigative action is illegal, according to Article 87 of the Code of Criminal Procedure of Ukraine, if the right to defense is violated, then the evidence is declared inadmissible;
- It is noted in the protocol that audio and video control of the person was carried out, but the Supreme Court in its decisions also called the criteria for the inadmissibility of such evidence. That is, if this was carried out by a police officer, then this is an interrogation and cannot be considered as video monitoring of a person. This can be regarded as covert interrogation.
- Also, an integral part of investigative actions is the order of the investigator to carry them out. If this order is not opened to the defense side, all materials received from such actions are inadmissible. In this case, there is no instruction, therefore, the actions can be recognized by the court as such that they do not comply with procedural norms.
It is not the responsibility of the ECtHR to determine whether certain types of evidence, such as evidence obtained illegally under national law, in principle, be admissible. The question to be answered is whether the trial was fair in general, taking into account, among other things, the way the evidence was obtained. This includes a consideration of the alleged illegality and, where a violation of another Convention law is involved, the nature of the violation found (para. 34 of the “Khan v. The United Kingdom” judgment; para. 76 of the “PG and J. H. v. The United Kingdom” judgment; para. 42 of the “Allan v. the United Kingdom” judgment).
The defendant’s lawyer also stated that Y. Rossoshansky gave false testimony, since there were authorized persons who indicated which evidence to give and which not.
Nevertheless, the prosecution denies the inadmissibility of the evidence, since the accused described in detail all the circumstances that happened on the day of the murder and therefore believes that the testimony is truthful.
The court, taking into account the above circumstances regarding the statement of the accused about the facts of pressure on him, as well as the presence of a video recording with a confession, considers that it is necessary to submit for consideration the question of the petition of the participants in the case to conduct an expert study using a polygraph if the accused agrees to this. The lawyer of Y. Rossoshanskiy pointed out that manipulations with the polygraph had already been carried out twice, but this is not in the case materials, which again violates the right to defense. Despite this, the defendant agreed to once again conduct such a study.
The next hearing is scheduled for July 9, 2020. The International Society for Human Rights will continue to monitor and clarify the details of this case.