On November 24, 2020, the Berdichevsky City District Court of the Zhytomyr Region continued to consider the criminal proceedings in the case of I.V. Shurman, who is accused of the brutal murder of a woman and is charged with paragraph 7 of part 2 of article 115 of the Criminal Code of Ukraine.
The court session was attended by the prosecutor, the legal representative of the accused, one of the victim’s lawyers and the victim himself.
From the defender L. Krivoruchko, a petition was received to participate in the court session by videoconference due to the spread of coronavirus disease in Ukraine. According to the prosecutor, this ground is valid and, moreover, the possibility of video broadcasting is provided for by paragraph 1 of part 1 of article 336 of the Criminal Procedure Code of Ukraine.
At the hearing, the problem of the non-appearance of witnesses from the prosecution was raised. The court claims that it is taking all the necessary steps to ensure that they are present. The prosecutor insisted on bringing in adult witnesses to testify in the courtroom. The International Society for Human Rights believes that the absence of witnesses is one of the reasons for the lengthy criminal proceedings.
On November 24, 2020, the court was forced to postpone the consideration of the case until next month.
With regard to this issue, the ECtHR means that the judge of the national court is obliged to decide whether or not a witness is required to appear in court (“Brickmont v. Belgium”, para. 89).
In addition, the ECtHR recalls that all evidence must be examined in open proceedings in the presence of the accused in order to ensure the adversarial nature of the process (“Krivoshapkin v. Russia”, para. 51).
The fundamental requirement, in accordance with paragraph 1 and subparagraph (a) of paragraph 3 of article 6, will be a valid opportunity for the accused to challenge the testimony against him and to question the witness, either at the time of the testimony or later (“Van Mechelen and Others v. the Netherlands”, para. 51; “People v. Switzerland”, para. 49). Although there are exceptions to this principle, they should not violate the rights of the defense. If the impossibility of questioning witnesses or obtaining the right to question them is due to the fact that they are absent or otherwise unavailable, the authorities should make reasonable efforts to ensure their presence at the trial (“Bonev v. Bulgaria”, para. 43).
The International Society for Human Rights is concerned that in the I.V. Shurman case, the absence of witnesses has a negative impact on a reasonable time frame for criminal proceedings. Recall that on July 09, 2018, the accused was placed in custody. The ECtHR often considered cases of violation of reasonable time limits in cases against Ukraine and indicated that those accused in criminal proceedings should have the right to have the proceedings in their case carried out with particular care, especially in the case of any restriction of freedom for a period until the end of the proceedings (“Doroshenko v. Ukraine”, para. 41).
The provisions of article 6 of the European Convention on Human Rights indicate that accused persons cannot remain in the dark about their fate for too long (“Nakhmanovich v. Russia”, para. 89, “Ivanov v. Ukraine”, para. 71).
In the opinion of 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 next hearing will take place on December 14, 2020. ISHR observers will continue to monitor this criminal proceeding.