Monitoring of the trial of S. Zinchenko, P. Ambroskin, A. Marinchenko, S. Tamtura, O. Yanishevsky (session on 03/17/2020)

On December 29, 2019, under the Norman format, an exchange took place between Ukraine and the Uncontrolled regions of Eastern Ukraine. Five ex-officers of riot police unit “Berkut” (S. Zinchenko, P. Ambroskin, A. Marinchenko, S. Tamtura, O. Yanishevsky) also got on the exchange lists. The International Society for Human Rights has been monitoring the case for two years. On February 8, two of them (A. Marinchenko, From Tamtura) returned to Ukraine. Their lawyer A. Goroshinsky published on social networks an open appeal of his clients to the President of Ukraine V. Zelensky in which ex-Berkut officers asked to declare unconstitutional the Law of Ukraine “On Preventing Persecution and Punishment of Persons About Events that Occurred During Peaceful Meetings”, and also adopt a law, which would exempt from the responsibility of both protesters and law enforcement officials.

It is worth noting that the ex-policemen commented on their consent to the exchange as follows: “We agreed to the exchange only so as not to disrupt it. A measure of restraint in the form of round-the-clock house arrest was applied to us (A. Marinchenko, S Tamtura), and our comrades (3 other accused in this case) were detained. The exchange of “all for all” was an opportunity for their release”. In addition, the returning defendants stated that they would continue to take part in court hearings, as they wanted to restore the honest name of the “Berkut” special police unit.

It is important to highlight the fact that before the exchange in the framework of the Norman format took place, for all the suspects and accused who participated in this exchange, the court changed the measure of restraint to a personal obligation. ISHR experts express their concern about this fact, since a measure of restraint in the form of a personal obligation implies a certain list of those obligations that are imposed on the accused, among other things, to come to court upon request. Considering that the criminal cases were not closed, which means that they will continue to be considered in court, the question arises, how, in fact, they will be considered without the participation of the accused. Suppose a hearing is scheduled, the parties are called, including the accused, the latter did not appear for objective reasons, and thereby violated the obligations imposed on them, a possible logical procedural result is the announcement of the accused as missing. That is, it turns out that the court knows where the accused are located, the court itself gave tacit consent to this, changing the measure of restraint to the accused, and the court now has no choice but to put the accused on the wanted list to smooth out this procedural conflict. The ISHR experts tried to find out from representatives of the legal profession and the judiciary how to process the exchange of “all for all” in order to avoid the above situation, but no one was able to answer this question because it is not regulated at the legislative level.

Let us return to the circumstances of the case and recall that this criminal proceeding has been examined for more than 5 years and during almost all this time all five accused were in jail. For A. Marinchenko and S. Tamtura the measure of restraint was changed only in the second half of 2019. Such a lengthy trial using a measure of restraint restricting the freedom of the accused may raise doubts from an independent observer regarding the reasonableness of the time of both the criminal investigation itself and the stay of the accused in jail. Undoubtedly, this is a resonant case for Ukraine, our judiciary has never encountered cases of such complexity, we note that the complexity of the case is one of the criteria of the ECtHR in determining whether the length of the criminal proceedings was reasonable (“Konig v. Germany”, para. 99), but, for example, in the case of “Rui v. France”, paragraph 29, the ECtHR concluded that despite the complexity of the case due to the number of persons to be interrogated and technical materials to be examined in the case, the reasonable time for consideration of the criminal proceedings was exceeded (the case was considered for 5 years and 11 months).

On March 17, the Svyatoshinsky District Court of Kiev was to hold the first court hearing after the return of the two accused, but in connection with the quarantine announced in Ukraine, the court decided to postpone the hearing until June 4.

Experts from the International Society for Human Rights will continue to monitor this trial.