Monitoring of the litigation in the case of the purchase of diesel fuel by Joint Stock Company “Ukrainian Railway” (hearing of January 26, 2021)

On January 26, 2021, a regular hearing was held in the Supreme Anti-Corruption Court in the case of the purchase of diesel fuel by JSC “Ukrainian Railways”. Daniil Mizin, Aleksandr Kulak, Andrey Bondarenko, Oksana Derkach are accused under Article 364 of the Criminal Code of Ukraine, namely, abuse of power or official position in order to obtain an unlawful benefit, which entailed grave consequences.

For more than six months, the defenders filed a motion to return the indictment to the prosecutor. Despite the objections of the defense, the court systematically refused to issue the relevant decisions, stating that all these requests were not subject to urgent consideration, and in the future the court would issue one joint decision based on the results of the consideration. According to one of the defenders, this position of the court is not based on the law, because the Criminal Procedure Code of Ukraine provides for an urgent consideration of the application.

It should be noted that Article 350 of the Code of Criminal Procedure established that the petitions of the participants in the court proceedings must be considered by the court after the opinion (on this matter) of other participants in the proceedings is heard, and then the ruling is made. Refusal to satisfy the application does not prevent its repeated application on other grounds.

Lawyer O. Garnyk drew the court’s attention to the fact that any delay in making a decision, postponing the consideration by the court or denying the filed petition is unacceptable and violates the requirements of the Code of Criminal Procedure in terms of objectivity and impartiality of the judicial review and does not create all the necessary prerequisites for the parties to exercise their procedural rights and fulfill their procedural duties. In addition, the Criminal Procedure Code of Ukraine does not provide for the consolidation of different petitions of different participants in the court proceedings and the adoption of a single decision. That is why the court must consider every petition filed.

The European Court of Human Rights recalls, given the importance of personal freedom, it is essential that the applicable national law must comply with the notion of “legality” defined by the Convention, which requires that all law – whether written or unwritten – be sufficiently clear, in order to enable the citizen, with due consultation if necessary, to foresee to a certain extent in certain circumstances the consequences that such an action may have (“SW v. the United Kingdom”, paragraphs 35-36  , “Still and others v. the United Kingdom”, paragraph 54).

The defense insisted that the court did not have any legal grounds for making decisions both on the unification of different procedural documents, and on the issuance of a single unified decision. On the basis of the law, the defenders asked not to restrict the defendant D. Mizin’s exercise of his rights, and also to consider the previously announced petitions to return the indictment to the prosecutor, each separately.

Lawyer P. Popovskaya submitted, in addition to the petition to return the indictment to the prosecutor, information according to which D. Mizin and O. Derkach did not receive the status of suspects, respectively, they could not be accused. Indicating them as accused indicates that this indictment is not in compliance with the requirements of the procedural law.

Also, the lawyer P. Plyotka drew attention to the fact that the court at the beginning of the session did not raise the question of whether it is possible to consider the case in the absence of the victim and his representative, thereby violating the procedure for conducting the court session. After such a comment, the court began to discuss this issue. Lawyer P. Plyotka objected to the consideration of the case without a victim.

Lawyer A. Boryak also drew the court’s attention to the fact that the terms of the pre-trial investigation were violated by the prosecution and the indictment was sent to the court outside the time limits specified by law. To this the prosecutor replied that the pre-trial investigation was delayed due to the fact that they could not get access to some of the case materials.

After that, the prosecutor asked the court to attach the documents to the case. One of the defenders objected to the admission, pointing out that at this stage of the proceeding such actions are unacceptable. Having consulted on the spot, the court decided to refuse the prosecutor’s petition to attach documents to the case file due to the fact that at this stage of consideration the provision of evidence is really not provided for by procedural legislation.

Also, the prosecutor filed a petition for the application of a measure of restraint to the accused A. Kulak because of his repeated failure to appear at court sessions at different periods of time due to being in self-isolation after arriving from abroad. According to the prosecutor, there is reason to believe that there is a risk of absconding from the court. Therefore, he asked to apply to A. Kulak a measure of restraint in the form of a personal obligation.

The court decided to postpone the resolution of this issue to the next session in order to enable the defense to prepare its objections to the prosecutor’s motion.

The court postponed the consideration of the case until February 01, 2021. The International Society for Human Rights will continue to monitor this case.