Monitoring of the trial in the case of the purchase of diesel fuel by the Joint Stock Company “Ukrainian Railway” (hearing on 07.27.2020)
On July 27, the Supreme Anti-Corruption Court held a preparatory hearing on the case of the purchase of diesel fuel by the Joint Stock Company “Ukrainian Railways” online.
Recall that on October 15, 2019, the Specialized Anti-Corruption Prosecutor’s Office of the General Prosecutor’s Office of Ukraine approved and submitted to the Supreme Anti-Corruption Court the indictment in the case of the ex-head of the Production Support Center branch of JSC “Ukrainian Railways”, Aleksandr Kulak and his deputy, Daniil Mizin, as well as two employees. All defendants are charged with Part 2 of Article 364 of the Criminal Code of Ukraine, namely, abuse of power or official position for the purpose of obtaining unlawful benefits, which entailed serious consequences.
Lawyer V.I. Tkachenko at the hearing did not appear, without informing the court about the reasons for failure to appear, in turn, lawyer Frolova O.G. sent a petition to the court about the impossibility of being present at this court session in connection with the urgent investigative search actions at which she must be present. Also, a representative of the victim did not appear in the courtroom (which, according to the parties, resigned, and a new representative has not yet been appointed). Thus, JSC “Ukrainian Railway” was left without a representative in this court session.
As a result, the court, guided by the norms of the current legislation of Ukraine, submitted for consideration the issue of the possibility of further continuation of the trial in the absence of defenders and a representative of the victim.
The prosecution did not object to the possibility of holding a hearing in such circumstances. The defense, on the contrary, expressed the opinion that it was impossible to consider the claim in the absence of a representative of the victim. Lawyer Popovskaya made a proposal to recognize the claim in this situation as such that was not filed at all.
Without going into the deliberation room, the panel of judges, taking into account the position of the parties, made a decision to extend the session in the absence of the victim’s representative, referring to Article 314 of the CCP of Ukraine and stating that the failure of the victim’s representative to appear in the courtroom, who was duly notified of the time and place of consideration of the case is not a reason for postponing the preliminary hearing.
The accused A.P. Kulak, for his part, also expressed his position on the impossibility of considering the case without the participation of his lawyer O. G. Frolova and the need for this reason to postpone the hearing to properly ensure his right to defense, in connection with which the court announced a break in order to wait for the lawyer Frolova, who did not appear at the hearing.
Note that, in accordance with the case law of the European Court of Human Rights, the court’s refusal to postpone the hearing at the request of a lawyer who participated in another proceedings, and the consideration of the case without a defense lawyer is a violation of Article 6 of the Convention (“Bartaya v. Georgia”, 26 July 2018).
During the court session, the defense drew attention to the expediency of considering a petition for clarification of court decisions, which was filed on June 10, 2020, focusing on the violation by the court of Article 380 of the Code of Criminal Procedure, namely the 10-day period for considering such a petition. The court finally considered this request, but it was rejected.
The International Society for Human Rights expresses concern about the fact that the court did not take into account the time period for considering the application in this matter without any explanation, since this may indicate a violation of general principles of criminal justice.
Para. 1 of Article 6 the Convention requires that the “court” falling within its scope be impartial. As a rule, impartiality means the absence of bias, and its presence or absence can be tested in various ways (“Kyprianou v. Cyprus”). The test of objectivity involves the determination of whether there are provable facts that may raise doubts about their impartiality (“Castillo Algar v. Spain”).
The ECtHR also recalls that equality of parties is an integral part of a fair trial. This principle requires each party to be given a reasonable opportunity to present its case in such circumstances that do not place it at a disadvantage with respect to the opposing party (“Fouche v. France”; “Bulut v. Austria”; “Bobek v. Poland”; “Klimentiev v. Russia”) … Equality of the parties requires the establishment of a fair balance between the parties and applies equally in criminal and civil matters.
Attorney Plyotka P.Y. submitted an application to clarify the judgment of 01/28/2020, the consideration of which was postponed to 07/31/2020 due to the failure of lawyer O.G. Frolova to appear and the need for her to familiarize herself with this statement.
Experts from the International Society for Human Rights will continue to monitor and clarify the details of this trial.