On May 12, 2020, a continuation of the court session in the case of the ex-president of Ukraine V. Yanukovych, accused of opposing the Maidan in 2014, took place in the Pechersky District Court of Kiev.
Monitoring the case of Viktor Yanukovych
IV President of Ukraine Viktor Yanukovych is suspected of organizing the persecution and killings of participants in mass protests from February 18 to February 20, 2014 in Kiev and other Ukrainian cities. He is charged with part 3 of article 28 – commission of a crime by a group of persons or a criminal organization by prior conspiracy, part 1 of article 109 – seizure of state power, part 2 of article 115 – intentional killing of two or more persons in a manner dangerous to many people by way of preliminary conspiracy as part of an organized group, part 2 of article 121 – intentional grievous bodily injury, article 340 – illegal obstruction of the organization or holding of meetings, rallies, demonstrations, part 3 of article 365 – abuse of power or authority.
At this session, the investigator’s request for a measure of restraint in the form of detention, which the prosecutor read out, was considered.
The hearing began with the fact that one of the lawyers filed a motion to return the prosecution in question, as he is convinced that the terms of the pre-trial investigation of the case have long been completed, referring to the norms of the law (part 1 of article 5, article 294, article 295 Code of Criminal Procedure of Ukraine). The lawyers also believe that the prosecution, using political motives to continue the consideration of the case, referred it to the court much later than the CPC provides. Advocates note that the actions of the prosecutor’s office are illegal, and it exceeds its authority.
The prosecutor indicated that he had requested the Deputy Prosecutor General to count and extend the length of the pre-trial investigation to 12 months. At the time of the application and the decision, the total period of pre-trial investigation was 8 months and 25 days. And due to the need for procedural actions, there was a need to extend the pre-trial proceedings.
The ECtHR has repeatedly stated that the reasonableness of the proceedings should be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the applicant’s conduct and the conduct of the relevant authorities (para. 38 of the “Golovkin v. Russia” case, para. 67 of the “Pelisier and Sassi v. France” case, para. 99 of the “Konig v. Germany” case, para. 21 of the “Nijmeister v. Austria” case, para. 110 of the “Ringeisen v. Austria”).
It should be noted that the ISHR observers began monitoring this case in November 2017 (the case itself has been under consideration since 2014) and its consideration is still at the pre-trial stage. In the decision in the “Merit v. Ukraine” case dated March 30, 2004, the ECtHR noted that the countdown of the criminal case to resolve the issue of its “reasonableness” in the sense of Part 1 of Article 6 of the Convention begins with the identification of the attitude of state bodies to a person as a suspect or as an accused of a crime. In particular, the countdown of the proceedings may begin from the day: the person is taken into custody; notifications of his initiation of criminal proceedings against him; start of pre-trial investigation. Thus, the only known period for the review of this case is 31 months (since November 2017).
Also, the defense noted that at the first hearing on this production the issue of the necessity of involving victims in this case was raised. But for today, the victims did not appear at the hearing. The defense believes that it is important that they or their representatives arrive in order to find out the whole truth about the Maidan in 2014, based on the materials available as well as those investigated during the court hearing, and not through media statements or social media posts. Therefore, lawyers believe that without the participation of victims, the prosecutor’s office failed to attend, it is impossible to listen to this case. The prosecutor objected to the petition of the lawyers, referring to the fact that the Criminal Procedure Code of Ukraine does not provide for the participation of victims in the examination of the petition for the application of a measure of restraint (Article 193). He also noted that the victims know about this hearing, and the court provided the broadcast, that is, they did not restrict anyone in knowing the truth. The court refused to satisfy this petition in the way that the broadcast was ensured, and the CPC limits the circle of participants in the hearing when considering the petition for choosing a measure of restraint.
The judge also dismissed the defense’s motion to challenge the prosecutors, as he regarded it, and other motions as unfounded. In support of its decision, the court referred to the presence of abuse of procedural rights committed by lawyers earlier. It is necessary to dwell separately on the issue of abuse of procedural rights by lawyers. For example, in March 2018, the Ukrainian National Bar Association (UNBA) already considered the issue of abuse by V. Yanukovych’s lawyers of their procedural rights in this case. Member of the Parliament of Ukraine M. Nayyem accused lawyers of pressure on “public defender” I. Angelin (in connection with which a criminal case was opened against the lawyers of the ex-president), however, representatives of the UNBA stated that information about the pressure was not confirmed. On the contrary, at a meeting of the UNBA committees revealed facts of pressure on the lawyers of V. Yanukovych by the General Prosecutor’s Office. Moreover, on December 29, 2018, the aforementioned criminal cases against the ex-president’s lawyers were closed. Nevertheless, at a session on May 12, 2020, the judge reiterated that there had been abuses by lawyers in the past, although, as practice shows, such charges were usually refuted in a detailed and objective examination.
Later, the defense announced two more motions: to summon V.F. Yanukovych and his participation in the hearing in the mode of videoconference. Lawyers continue to insist on the participation of the suspect (he himself filed the application) in a video conference mode. In accordance with international standards and obligations of Ukraine, the suspect has the right to speak remotely and answer all questions, allegations, as well as testify. The judge refused to satisfy these requests, also considering them unsubstantiated. According to the judge, in accordance with Article 193 of the CPC, these applications should not be considered when choosing a measure of restraint.
According to Article 6 of the Convention, everyone has the right to a fair trial. In its judgment, the European Court of Human Rights noted that Article 6 of the Convention guarantees the person charged with criminal offence the right to an effective participation in the trial. This right implies, among other things, the opportunity not only to attend the trial, but to hear and understand what is happening during the trial (para. 26 of the case “Stanford v. The United Kingdom”, para. 78 of the case “Barbera, Messeg and Yabardo v. Spain”).
Lawyers, disagreed with Judge Sokolov, and filed a motion to challenge the judge. The defense justified this by the fact that the court ignores their requests to attract victims, to ensure the participation of V. Yanukovych in hearings and so on. They note that this is not an abuse of procedural rights, which the court referred to each time after refusing to satisfy the applications submitted. The judge again dismissed the request for his challenge, regarding it as an abuse of the right to challenge. The ISHR has repeatedly written that in cases against V. Yanukovych, courts systematically ignore Ukraine’s international obligations regarding the provision of videoconferencing with a defendant outside Ukraine. In this connection, the ex-president is deprived of the opportunity to participate in court hearings.
The prosecutor continued to declare a petition in which he drew attention to the most relevant risks, justifying them with the social ties of the suspect, as well as the fact that there are circumstances (risks) that already take place:
– concealment from pre-trial investigation bodies and the court;
– risk of unlawful influence;
– committing obstruction of criminal proceedings in another way, in particular, staying outside Ukraine, as well as evading participation in procedural actions.
In accordance with the case law of the European Court of Human Rights, a good reason for deciding on the need for a pre-trial detention of a person is the risk of obstructing the establishment of the truth in the case and of hiding from justice. It is noted that the danger of obstructing the establishment of the truth in the case and hiding from justice can be measured by the severity of the possible punishment in conjunction with the availability of data on the material, social situation of a person, his relations with the state in which he is persecuted and international contacts (para. 85 of the case “Satretdinov v. Russian Federation”). It is worth paying attention to the fact that the location of V. Yanukovych is known and he himself filed a statement of desire to participate in the hearings.
Lawyers also drew attention to the fact that the prosecutor used only 15% of all evidence (out of 15 volumes) in the petition, therefore they believe that the prosecutor’s office conceals Maidan’s crimes using it official powers starting from the petition filed with the court and materials, positions, which they declare.
The investigating judge considered proved the presence of risks under paragraphs 1, 3, 4 of Part 1 of Article 177 of the Code of Criminal Procedure of Ukraine, namely the fact that V. Yanukovych being at liberty may attempt to hide from the preliminary investigation bodies and the court, influence witnesses, and also otherwise impede criminal proceedings, which indicates the existence of reasonable risks under Article 177 Code of Criminal Procedure of Ukraine.
The court granted the request for a measure of restraint in the form of detention without the right to deposit bail. The International Society for Human Rights will continue to monitor and refine the details of this proceeding.
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