On September 18-25, the Kiev Court of Appeal held hearings in the case of ex-president of Ukraine V. Yanukovych. On January 24, the Obolonsky District Court of Kiev pronounced a verdict on ex-President of Ukraine V. Yanukovych, convicting him of high treason (Article 111 of the Code of Criminal Procedure) and complicity in the planning, preparation and conduct of an aggressive war (Articles 27, 437 of the Code of Criminal Procedure).
The defense submitted a number of motions. The court, in order to optimize the time, chose the following procedure – first to hear all the petitions, and then make decisions on the entire block of petitions.
Petitions of lawyers mainly related to interrogation of witnesses, “repeated” interrogation of witnesses, investigation of evidence, examination. Based on the rhetoric of the defenders, we can highlight the main idea, which was that the trial court was biased and unfair in its decisions, in a hurry to “quickly” consider the case, made several procedural violations. For example, the composition of the court was formed manually, and not using the auto-distribution system, in addition, the decision to hold a preparatory hearing was made by an incomplete composition of the court, which is a separate reason for the annulment of the court verdict. The lawyers also noted that V. Yanukovych throughout the trial expressed a desire to directly participate in court hearings, but the court, contrary to the requirements of the international legal aid treaty, which has been ratified by Ukraine, decided to hold sessions in absentia. ISHR experts consider such court actions as a violation of the defendant’s right to defense; the practice of the ECtHR confirms our findings. The ECtHR has repeatedly emphasized that the charges cannot be compensated for by the presence of defendant’s lawyers in the trial (“Zana v. Turkey”, paragraph 72). The concept of “defense” includes not only the qualified assistance of lawyers, but also the ability to defend yourself on your own.
It is worth noting that because of the reluctance to work within the framework of international obligations to organize video communications with the accused and key witnesses for the defense, the court invited lawyers to interrogate witnesses via Skype, which is nonsense. The court is obliged to act within the framework of procedural legislation and is not entitled, at its request, to change the format of the procedural actions. Section 9 of the Code of Criminal Procedure of Ukraine regulates the issue of international cooperation, the concept of “video communication via Skype” is not there, respectively, this format cannot be used in criminal proceedings.
In addition, lawyers emphasized that the court refused to consider 251 evidence, although, the examination took place in a special judicial procedure, and according to the requirements of paragraph 2 of Article 349 of the Code of Criminal Procedure of Ukraine, when using this format, all evidence provided by the parties is subject to investigation. In addition, the lawyers requested that the right to defense, violated by the court of first instance, be renewed, citing the fact that out of 139 declared defense witnesses, the court approved only 16, while there were more than 40 approved prosecution witnesses, which directly violates the principles of disparity and equality of arms. It is important to note that dispositiveness is a democratic principle of building a criminal trial, as well as a characteristic feature of an adversarial trial. Violation of this principle calls into question the fairness of the judicial review as a whole. When examining the issue of violation of the principle of equality of arms, it should be said about the case-law of the ECtHR, which says that equal rights of the parties is an integral feature of a fair trial. This principle requires that each party be given a reasonable opportunity to present its case in such circumstances that do not put it at a substantially disadvantageous position with respect to the opposite side (“Fouchet v. France”, p. 34; “Klimentyev v. Russia”, p. 95).
Regarding the interrogation of witnesses, the lawyers also noted the fact that even those witnesses whom the court granted to hear were not fully interrogated, for example, from the prepared 230 questions for P. Poroshenko, the lawyers could only ask 6. This fact certainly indicates another violation of the right to an effective defense. The case law of the ECtHR tells us that the right of a person accused of committing a crime to an effective defense by a lawyer is one of the fundamental characteristics of a fair trial (“Salduz v. Turkey”, p. 51).
Experts from the International Society for Human Rights will continue to monitor and clarify the details of this lawsuit. The next session will be held on December 9, 2019.