On December 9, 2020, the Pechersk District Court of Kiev continued the consideration of the case of ex-President of Ukraine Viktor Yanukovych, suspected of opposing the 2014 Maidan.
IV President of Ukraine Viktor Yanukovych is suspected of organizing the persecution and murder of participants in mass protests in the period from 18 to 20 February 2014 in Kiev and other cities of Ukraine. He is charged with Part 3 of Art. 28 – commission of a crime by a group of persons or a criminal organization by prior conspiracy, Part 1 of Art. 109 – seizure of power, Part 2 of Art. 115 – willful murder of two or more persons in a way dangerous for many people, by prior conspiracy as part of an organized group, Part 2 of Art. 121 – intentional grievous bodily injury, Art. 340 – illegal obstruction of the organization or holding of meetings, rallies, demonstrations, Part 3 of Art. 365 – abuse of power or official authority.
The subject of this court session on December 9, was the consideration of the petition for the selection of a measure of restraint. Let us remind that on May 12, 2020, the Pechersk District Court of Kiev granted the petition of the prosecutor’s office to choose a measure of restraint for V. Yanukovych in the form of detention. But on November 16, the Kiev Court of Appeal overturned this decision and sent the case file for consideration to the court of first instance.
However, the hearing began with an entirely different motion. Prosecutor Y. Simonov filed an application through the office of the court to dismiss the lawyer A. Goroshinsky, but since he could not appear at the hearing, due to participation in another proceeding, a group of prosecutors of this criminal proceeding asked the court to consider and support the application.
The statement is motivated by the fact that the lawyer has a conflict of interest, since in the “the Maidan case ” he represents the defense of the suspect V. Yanukovych, and also protects the victim Voloshina, the wife of a law enforcement officer V. Bulitko, who died on February 18, 2014, and at the same time is a representative and defender of two ex-policemen of the special unit “Berkut” A. Marinchenko and P. Ambroskin in the Svyatoshinsky district court in the case against the officers of the “Berkut”.
The defense lawyers also asked the court to give them time to familiarize themselves with this application, which was filed in a sufficiently large volume together with the procedural documents, in order to ensure the proper right to defend their client.
After consulting on the spot, the court announced a break for one hour in order to provide time for familiarization with the statement on the challenge of the defense.
Immediately after the end of the break, the prosecution filed a motion to add new evidence to the application for recusal, including a CD. The prosecution also referred to Paragraph 1 of Part 2 of Article 78 of the current Criminal Procedure Code of Ukraine, which indicates a direct imperative prohibition on the right of a person to participate in the same criminal proceedings as a defender or representative in the event that he provides or previously provided legal assistance to a person whose interests are contrary to the interests of the person who has applied for legal assistance.
It should be noted that since the court has the right to take into account only those documents and materials with which the participants and parties of the proceeding are familiar, it is not clear why the prosecutors for which this evidence was not presented simultaneously with the application for recusal.
Having heard the opinion of the parties, the court was forced to re-adjourn to provide the defense with an opportunity to get acquainted with the new evidence.
After familiarizing themselves with the presented materials, the lawyers filed a petition to summon the wife of the deceased law enforcement officer V. Bulitko (whom the prosecution called the victim) to the court session to clarify her legal status in this criminal proceeding, since the lawyer A. Goroshinsky argued that this person is a victim in a completely different criminal proceeding, where he represents her. Thus, according to the defense, the arguments of the prosecution do not correspond to the reality and the factual circumstances of the case, and the classification of this situation in accordance with Paragraph 1 of Part 2 of Article 78 of the CCP, to which the prosecutors refer, is incorrect.
In addition, the lawyers stated that the issue of a conflict of interest, if it arises, should be resolved directly by the client and his lawyer, and not by the representatives of the prosecutor’s office, since according to Article 9 of the Rules of advocate ethics approved by the Congress of Lawyers on 06/09/17, if the information from a client to whom he provided professional legal assistance is related to the interests of a new client in the provision of legal assistance, the lawyer is obliged to obtain the written consent of clients between whom a conflict of interest has arisen.
In confirmation of compliance with the norms of the abovementioned law and refutation of the arguments of the prosecution about the challenge, A. Goroshinsky was provided with the conclusion of the Council of Advocates of Ukraine that he had no conflict of interest in relation to these persons and a certified statement from V. Yanukovych, which says that he does not see a conflict of interest in this situation and does not object to the lawyer representing the interests of A. Marinchenko and P. Ambroskin. A similar application was filed on behalf of former Berkut officers, which contained information about permission to represent their interests and awareness of this situation.
After consulting, the court decided to refuse to satisfy the prosecutor’s motion to dismiss the lawyer A. Goroshinsky and, therefore, did not satisfy the defense’s motion to summon the wife of the deceased law enforcement officer V. Bulitko for interrogation.
After this decision was made, the defense side filed a response motion to disqualify prosecutors A. Donsky and D. Ivanov, arguing that the defense doubted their impartiality. According to the prosecution, this behavior of the lawyers is evidence of their abuse of the right to challenge. The court also decided to refuse to satisfy this petition.
Moreover, the court also refused to involve the victims in the proceeding, which was requested by both the prosecution and the defense. It is worth noting here that the defense has already repeatedly asked to involve the victims in the proceeding, which, in their opinion, is necessary to ascertain the authenticity of all the circumstances of the case. This position of the court can be regarded as unwillingness to understand the true essence of what is happening, and unjustified haste regarding the decision of the case. Moreover, the court refused due to the fact that this session is intended only to resolve the issue of a measure of restraint.
As for the petition to choose a measure of restraint, the prosecutors on this issue asked to attach documents on the international search for V. Yanukovych to the materials of the petition.
It is important to note that in the current Criminal Procedure Code of Ukraine, Paragraph 2 of Article 184, in this regard means that a copy of the petition and materials that justify the need to apply a measure of restraint is provided to the suspect, the accused no later than 3 hours before the start of the consideration of the petition. But, despite this, the court considered the materials provided by the prosecution as not new to the defenders, therefore, decided to grant the petition. According to the observer of the ISHR, this is a direct violation of procedural rules and the principle of equality of arms, guaranteed both by national legislation and by the ECtHR.
The European Court of Human Rights recalls that one of the requirements of a fair trial is equality of arms, which implies the obligation to provide each party with a reasonable opportunity to state their position in conditions that do not place them at a clear disadvantage compared to their opponent (“Mahfi v. France case”, par 26); In the case of “Ruiz-Mateos v. Spain”, para. 63 states that the right to a competitive proceeding means an opportunity for the parties to know and comment on the observations provided or the evidence made by the other party.
In addition, lawyers of V. Yanukovych filed a petition demanding to ensure his personal participation in the hearing by videoconference. The prosecutors, in turn, opposed the granting of this request, continuing to talk about the impossibility of carrying out such a procedure, due to the fact that the suspect is on the wanted list, and the Russian Federation refuses to provide legal assistance on this issue. Lawyers, on the other hand, continue to insist on the real availability of information about the whereabouts of V. Yanukovych and his personal desire to take part in the hearing via videoconference (It should be noted that back in 2016, V. Yanukovych was given the opportunity to testify via videoconference in court in the case of the shooting on the Maidan, after which any statements by the defense about his participation in the court hearings are rejected, although the location has not changed).
At this hearing, the court also ruled on the spot to refuse to satisfy this request, referring to Paragraph 6 of Art. 193 of the Criminal Procedure Code of Ukraine: the investigating judge, the court may consider a petition for choosing a measure of restraint in the form of detention and choose such a measure of restraint in the absence of the suspect, the accused, only if the prosecutor, in addition to the existence of the grounds provided for in Art. 177 of this Code, proves that the suspect, the accused is on the international wanted list. When making the decision, the court noted that the right to fair trial is not violated in this way, but will be realized through representatives.
It is important to clarify here that in accordance with international norms and obligations of Ukraine, a suspect has the right to speak remotely and answer all questions, accusations, and also give testimony, especially if the suspect himself asks about it, and besides, this is not the first time (at the session dated 12.05.2020, the court also refused to satisfy the request for V. Yanukovych’s participation in the session in the video broadcast mode when considering the issue of choosing a measure of restraint, similarly referring to the norm of Art. 193 of the Criminal Procedure Code).
Article 6 of the Convention recognizes for the accused the right to real participation in the proceeding. This implies, among other things, the right not only to be present at the proceedings, but also the right to be heard and to participate in the debate. Inherent in the very concept of an adversarial proceeding, these rights may equally derive from the guarantees set out in Parts c), d) and e) of Article 6 par 3: the right to “defend oneself in person”, “to interrogate witnesses testifying against him or to have the right to have these witnesses questioned”, “use the free help of an interpreter if he does not understand the language used in court, or does not speak this language.” (“Stanford v. the United Kingdom”, para. 26).
Moreover, as mentioned above, V. Yanukovych has already taken part in the court session via video link (in the case against the ex-Berkut officers), which confirms the real opportunity to grant him the right to appear directly before the court and personally participate in the trial in the format of a video conference.
Thus, the ISHR once again notes the problem with the exercise of the right to personal participation in the court, which arose in connection with the unregulated format of V. Yanukovych’s participation in this proceeding. The regularity of this problem in cases against V. Yanukovych may indicate a violation of the right to a fair trial, despite the judge’s assurances that there is no such violation (since when choosing a measure of restraint, the suspect is not even allowed to be heard and to give appropriate arguments in his defense).
In addition, according to the observer, the actions of the court that violate the norms of international law testify to the dependence of the judicial proceeding on the political situation.
The suspect’s lawyers insisted on giving them time to familiarize themselves and the possibility of preparing substantiated written objections to the materials submitted by the prosecution. In this regard, the court again announced a break for 3 hours to provide the defense party with such a right. But at the same time, it should be noted that the court session lasted more than eight hours, and the break was announced at 9:45 pm to 00:45 am, which directly contradicts the norm of Para. 1 of Art. 322 of the CCP, which says that the trial takes place continuously, except for the time of rest. The indicated time clearly cannot be called a working time, which in itself is a direct violation of procedural norms.
Referring to the practice of the ECtHR, it should be noted that the European Court of Human Rights considers it important that not only the accused, but also their defenders have the opportunity to follow the course of the trial, answer questions and make statements without being overly tired. Likewise, it is imperative that judges exercise their full capacity for concentration and attention to follow the proceeding and be able to make an informed decision. Thus, for example, in the “Mahfi v. France” case, para. 40, the applicant argued, in particular, that the late hour at which his lawyer had to appear before the jury and the length of the trial violated his defense rights under Para. 1 and 3 of Article 6 of the Convention. The Court also held that, in this situation, there had been a violation of para. 3 of Article 6 of the Convention taken in conjunction with para. 1.
Due to the late time and the impossibility of technically preparing to discuss the issue of a measure of restraint, as well as agreeing on their legal position with the client, the lawyers sent a corresponding request to the court’s email address with a request to determine the date of the next court session at the proper working time.
But after about an hour, the panel of the court and the prosecution returned to the courtroom to continue the consideration of the case. The court, however, without any examination of the reasons for the non-appearance of the lawyers, promptly made a decision to involve the public defender in the consideration of the petition. At the same time, according to the lawyers, they were not even notified of the change in the length of the break. And the defense lawyers never received an answer to their petition to set a different time for the hearing.
The International Society for Human Rights has repeatedly written about the tendency in criminal cases to replace “inconvenient” lawyers with passive “public defenders”. This problem can be traced not only in the cases against Viktor Yanukovych, but also in many others, for example, in the case of Alexander Filtsev, when considering a petition for a measure of restraint, the lawyers did not physically have time to appear in court (through the fault of the court itself, which notified them of the hearing just a few hours before it began), against the will of the accused himself, the judge ruled to appoint a public defender, thereby violating the right to defense.
In the report “Monitoring the observance of the right to a fair trial in Ukraine” for 2017, the ISHR has already indicated that the abuse of the public defenders is one of the main negative trends that hinder the realization of the rights of defendants and accused.
The International Society for Human Rights will continue to clarify all the details and monitor this case.