The “Maidan case”: monitoring of the trial of Victor Yanukovich
In November 2017 the Pechersk district court of Kiev started a pre-trial consideration of materials of the so-called “Maidan case” – a criminal case against ex-President of Ukraine Victor Yanukovich, who is accused of crimes allegedly committed against the protesters in the Maidan square in winter 2013-2014. Experts of the International Society for Human Rights have started monitoring this process.
In the course of examination of the materials and attendance of the court hearings, was obtained important information regarding observance of the right to a fair trial and significance of the process to the public:
1) Victor Yanukovich has officially declared of his wish to participate in the pre-trial consideration of the case (in the mode of a video-conference), however, his petition was refused. The ex-President undertook the attempts to participate in the various processes in such a way more than once. As of now, Victor Yanukovich has succeeded to participate in one court proceeding only – in the case against the members of riot police unit “Berkut” who had taken part in the events in the Maidan square. In this process Victor Yanukovich participates as a witness. Thus, in spite of the international law (envisaging a possibility of organizing a video conference with a defendant who is being abroad), the Ukrainian court has refused the ex-president the possibility to participate in the trial against him, allowing such format of participation only in the cases where he is not a suspect.
2) The defence of Victor Yanukovich has appealed to court and to the representatives of the Council of Europe with a petition to provide for participation of the Council of Europe representatives in monitoring of the trial. Their petition was substantiated by the agreement dated 21.02.2014 between Victor Yanukovich and heads of Foreign Ministries of Germany, France and Poland according to which investigation of the acts of violence that had occurred at the time of confrontation on the Maidan would be conducted under monitoring of the Council of Europe. No official answer has followed from the representatives of the Council of Europe.
3) Examination of evidence of the key witnesses on the side of prosecution, such as Arseny Yatsenyuk, Vitaly Klichko and others, is being conducted in the form of examination of a video of their interrogation by the representatives of the prosecutor’s office. When asked by the representative of the International Society for Human Rights regarding the expected time for examination of the similar video recordings featuring interrogation of those witnesses by the side of defence, the defenders of Victor Yanukovich stated it did not seem to be possible (the witnesses in question refrain from contacts with the side of defence), while the representatives of the prosecutor’s office advised that the side of defence had the right to address the witnesses with a lawyer’s request to obtain the evidence in writing.
4) Actions aimed at limiting access by the public and media to the information related to the “Maidan case” are being undertaken by the side of the prosecutor’s office (for instance, the evidence of the key witnesses from the leaders of Maidan). Based on the statements by the lawyers of Victor Yanukovich, they were threatened of the criminal liability by representatives of the prosecutor’s office for dissemination of the information obtained by the side of defence in the course of the trial. Moreover, on November 16, 2017, after watching a video recording featuring the interrogation of Gennady Moskal (one of the leaders of Maidan who at the moment occupies the post of the Head of the Zakarpatsky region), where he provided the information contradicting to the official interpretation of the events on the Maidan, the prosecutor’s office requested further court sessions to be held in the closed regime (not admitting journalists and the public). The judge satisfied the demand of the prosecution.
The above-mentioned facts allow us to make an assumption that in the pre-trial investigation of the “Maidan case” there occurs a situation where representatives of the court and prosecutor’s office make everything possible to limit the factor of “publicity” of this process which is very important for the country and international community. The refusal to provide for Victor Yanukovich a possibility to have his say, pressure on the lawyers, holding closed court hearings, refusal from presence of the monitoring group of the Council of Europe and non-admission of the side of defence to interrogations of the key witnesses indicate an attempt to conduct the trial “quickly” and “quietly”. Experts of the ISHR have already noted that the cases of such “magnitude” being of the social-political importance can have a positive sense for the society only under maximum transparency and a public involvement of all key participants of the tragic events of the winter 2013-2014.
From the point of view of the right to a fair trial, even on the stage of the pre-trial investigation there were certain actions which could result in violation of article 6 of the European Convention on Protection of Human Rights and Fundamental Freedoms. Thus, in the issue of inclusion of the witnesses’ evidence, taken by the prosecutor’s office in the regime of a video recording of the interrogation, into the materials of the case the rights of the side of defence were not taken into account. First of all the right of defence (and of the defendant) to have an adequate possibility to interrogate such witnesses (the case of the European Court of Human Rights (“Schataschwili v. Germany”). Moreover, in the case of “Al-Khawaja and Takhery v. the United Kingdom” ECHR have stressed that, as a rule, witnesses shall provide evidence in the course of the legal proceedings and that every reasonable effort shall be taken to provide for their presence. When witnesses do not take part in provision of direct evidence, there appears an obligation to check whether their absence is justified. Further events will show whether such violations are eradicated at the time of the court proceedings.
Experts of the International Society for Human Rights will continue monitoring and checking details of this court proceeding.
Expert council of ISHR