Press release from Barristers, JSC, dated August 31, 2018, regarding criminal proceedings under Part 3 of Article 369-2 of the Criminal Code of Ukraine
On August 31, 2018, the Odesa Regional Court of Appeals held hearings in criminal proceeding No. 42018160000000618 dated July 16, 2018, in which the pretrial investigation is being conducted by the Investigative Department of the Main Directorate of the National Police in the Odesa Region, and the proceedings are being supervised by the Odesa Regional Prosecutor’s Office.
Defense attorneys Y.V. Zhovtan and D.V. Ponomarenko, partners at the “Barristers” Law Firm, acting in accordance with the procedure provided for by the Criminal Procedure Code of Ukraine, filed appeals with the Court of Appeals against the ruling of the investigating judge of the Primorsky District Court of Odesa dated July 20, 2018, regarding the imposition of a preventive measure on our client and against the ruling of the same investigating judge on the seizure of property dated July 24, 2018.
In the proceedings regarding the appeal against the ruling of the investigating judge of the Primorsky District Court of Odesa dated July 20, 2018, regarding the application of a preventive measure against our client, the panel of judges of the Odessa Regional Court of Appeal granted the defense counsel’s motion to recuse the panel of judges. The defense counsel’s appeal will be heard by a different panel of judges of the Odessa Regional Court of Appeal.
In the proceedings regarding the appeal against the ruling of the investigating judge of the Primorsky District Court of Odessa dated July 20, 2018, regarding the seizure of property, the defense attorneys drew attention to numerous violations of criminal law and criminal procedure law committed by both the prosecution and the investigating judge in the criminal proceedings:
– the search, during which property was seized and subsequently frozen by the investigating judge, was conducted without a ruling by the investigating judge and in the absence of the circumstances provided for in Article 233 of the Criminal Procedure Code of Ukraine;
– the search report lacks information regarding the criminal proceedings for which the search was conducted;
– an attempt to induce bribery took place (the actions of the prosecution contain elements of a crime under Part 3 of Article 370 of the Criminal Code of Ukraine);
– the investigator’s motion and the investigating judge’s ruling concerned a criminal offense under Article 368 of the Criminal Code of Ukraine, whereas the client was notified of the suspicion under Article 369-2 of the Criminal Code of Ukraine;
– the suspicion is unfounded (classification under Article 392-2 of the Criminal Code of Ukraine is currently impossible, since the Law of Ukraine “On the Principles of Preventing and Combating Corruption,” which affects the determination of the objective elements of the aforementioned offense, ceased to be in force as of September 1, 2016);
– the suspicion is unfounded also because neither the motion for arrest nor the contested ruling contains any references to evidence substantiating the suspicion or the grounds for the seizure of property;
– the prosecution missed the statutory deadline for notifying the suspect of the charges, and therefore our client no longer has the status of a suspect;
– there are other obvious and substantial violations of criminal procedural law.
The prosecutor has not provided any reasonable explanations for the violations of criminal law and criminal procedure law cited by the defense.
Furthermore, an unfortunate situation arose during the court hearing that may indicate a lack of objectivity (bias) on the part of the panel of judges, when one of the judges (with the tacit agreement of the others) effectively urged the prosecutor—who had not filed anymotions pending in the proceedings, to file a motion for a recess due to the need to submit additional materials that had not been considered by the investigating judge. Such conduct may indicate that the judges have taken it upon themselves to support the prosecution, and the defense is not convinced that there are sufficient safeguards to exclude reasonable doubt regarding the negative impact of such conduct on the court’s impartiality. This may indicate a bias in favor of the prosecution in the appellate proceedings.
The defense attorneys draw the attention of the prosecution and the media covering this criminal proceeding to the need to uphold the principle of the presumption of innocence. In accordance with Article 68 of the Constitution, everyone is obligated to strictly observe the Constitution of Ukraine and the laws of Ukraine, and not to infringe upon the rights, freedoms, honor, and dignity of other people.
