On September 18, 2020, in the Ordzhonikidze District Court of Kharkov, a hearing was held in the case of Nelia Igorevna Shtepa. She is charged with encroachment on the territorial integrity and inviolability of Ukraine, resulting in the death of people, as well as the creation of a terrorist group or organization.
Previous court sessions were devoted to consideration of procedural issues. The interrogation of witnesses was scheduled at today’s hearing. However, it did not take place, because the prosecutor was unable to ensure the appearance of witnesses in court, in the mode of videoconference with which the interrogation should take place. The witnesses indicated that they were in another city and could not appear at the Slavyanskiy District Court of the Donetsk Region.
The judge drew attention to the fact that it is the prosecutor’s office that is responsible for taking measures to ensure the appearance of witnesses, since it was the prosecutor’s office that filed the request for interrogation. In addition, during the court session it turned out that the representatives of the prosecutor’s office did not even know in which city the witnesses were today and where it would be convenient for them to take part in the interrogation, in which court they could come to participate in the next court session to conduct interrogation.
It should be noted that in the case of Shtepa Nelia, the decision of the European Court of Human Rights drew attention to the fact that “… in six cases the hearings were postponed due to the absence of witnesses in court. The absence of witnesses led to the postponement of the hearing for a total of three and a half months (at the time of filing the application with the ECtHR). The Ukrainian government did not indicate whether any measures were taken to shorten the intervals between hearings or to punish absent witnesses” (para. 36 “Shtepa v. Ukraine”). The systematic non-appearance of witnesses is one of the aspects of the violation of Art. 6 para. 1 ECHR, established by the ECtHR.
However, positive dynamics can be traced in the trial. In para. 36 of the “Shtepa v. Ukraine” judgment, the European Court stated that “… the role of the national courts is to manage their proceedings so that they are prompt and effective (“Silin v. Ukraine”, para. 34). However, in the Court’s opinion, the domestic court did not show due diligence in the Shtepa Nelia case. In particular, according to information provided by the authorities, hearings were often scheduled at intervals of three to four weeks.”
To date, court hearings in the Ordzhonikidze District Court of Kharkov are scheduled systematically. For example, in September the judge planned to hold 4 court sessions: 09/04; 09/10; 09/18; 09/25. Thus, the national court, in the opinion of the ISHR, is trying to comply with the decision of the European Court regarding the need to hold court hearings without long interruptions. However, in this case, it is necessary to note the insufficient diligence of the parties in the case, which does not contribute to the effectiveness of judicial proceedings. On September 4, the hearing was postponed because the lawyers were employed in other courts. On September 10, the question of the composition of the court was decided, the case was not considered in essence. September 18 is the date of the current court session; the prosecutor did not ensure the attendance of witnesses. On September 25, the hearing will not take place, since the lawyer Marchenkov D.I. is participating in the elections (running for the mayor’s office) and he needs to go to the Central Election Commission.
The European Court indicates that it considers the State to be responsible under the “reasonable time” aspect of Art. 6 for the delay in the delivery by the judges of their decisions (“McFarlane v. Ireland”, para. 121).
In this case, the state is responsible for the delay in the delivery of decisions because of the prosecution’s actions. Since the ECtHR notes that in criminal cases the whole issue of collecting evidence must be examined in the light of Art. 6 of ECHR and requires, inter alia, that the burden of proof lies with the prosecution. (“Barbera, Mesigue and Jabardot v. Spain”, paras. 76-77).