"TECHNICAL ERROR" — A NEW "Convincing" Argument to Justify the Legality of Decisions Made

On July 18, 2018, investigators from the Investigative Department and operatives from the Economic Protection Department of the Main Directorate of the National Police of Ukraine conducted several investigative actions at the O.V. Nezhdanova, and employees of the ONMA were detained.

Yuriy Zhovtan and Denis Ponomarenko, partners at the “Barristers” Law Firm, are representing one of the ONMA employees who was detained and has been notified of suspicion in the aforementioned criminal proceedings.

When, in mid-August, attorneys Yuriy Zhovtan and Denis Ponomarenko began defending one of the ONMA employees in the aforementioned criminal proceedings, they were struck by the number of violations of Ukraine’s criminal and criminal procedural laws.

1. The actions of law enforcement officers who conducted searches and made arrests on July 18, 2018, at the ONMA appear to constitute the elements of a crime under Article 370 of the Criminal Code of Ukraine, namely: an attempt to provoke bribery committed by law enforcement officials. Law enforcement officers had fabricated fake “money” in advance, and the prosecutor issued search warrants as if they knew that, in any case, they would place the money exactly where they needed it or with whom they needed it.

2. All searches at the ONMA were conducted in violation of the Constitution of Ukraine and the Criminal Procedure Code of Ukraine without the authorization of an investigating judge. Later, after the searches were conducted, the investigator, with the prosecutor’s consent, applied to the investigating judge of the Primorsky District Court of Odesa with motions to conduct searches in order to legalize his actions. However, it remains unclear whose lives or property the investigator was protecting in these situations, as the investigating judge’s rulings do not contain any reasonable justification for an emergency situation, as required by law.

3. As announced during a hearing at the Odesa Regional Court of Appeals, one of the search reports—during which, according to the investigation, key evidence was seized, there is no indication whatsoever as to which criminal proceeding or which criminal offense the search was conducted in connection with.

4. In the report of our client’s arrest, in violation of Article 209 of the Criminal Procedure Code of Ukraine, the time of arrest was recorded not as the time when the search of his office and the inspection began in the client’s presence, but as the time the arrest report was drawn up.

4. By law, the prosecution had 24 hours from the time of the arrest to serve a written notice (Article 278(2) of the Code of Criminal Procedure of Ukraine). If the law is followed, failure to meet this procedural deadline results in the release of the detained person from custody and the termination of their status as a suspect. However, the investigator served our client with a written notice of suspicion 27 hours after the arrest and did not release him from custody. The investigating judge “overlooked” this “detail,” even though, by law, he is entrusted with general duties to protect human rights (Article 206 of the Code of Criminal Procedure of Ukraine).

5. The defense is also greatly surprised by the nature of the crime with which our client is charged. Specifically, the prosecution argues that our client’s actions contain elements of the crime defined in Part 3 of Article 369-2 of the Criminal Code of Ukraine, which establishes liability for “accepting an offer, a promise, or the receipt of an unlawful benefit for oneself or a third party in exchange for influencing the decision-making of a person authorized to perform state functions, combined with the solicitation of such a benefit.” Based on such a suspicion, before formalizing it, the prosecution must identify the circle of individuals whom the prospective suspect could have influenced and confirm that such individuals (or individual) are authorized to perform state functions. However, the prosecution has once again overlooked an important detail: according to the “Note” to Article 369-2 of the Criminal Code of Ukraine, the scope of persons authorized to perform state functions must be determined in accordance with the Law of Ukraine “On the Fundamentals of Preventing and Combating Corruption,” which is not in effect in Ukraine as of September 1, 2016! This circumstance deprives the charges against our client of any legal basis, since, according to Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, there shall be no punishment (criminal liability) without a law.

6. The ruling of the investigating judge of the Primorsky District Court of Odesa on the application of a preventive measure in the form of pretrial detention dated July 20, 2018, does not comply not only with the standards established by the case law of the European Court of Human Rights, but also with the requirements of Ukraine’s Criminal Code, which are formulated in fairly accessible language.

Specifically, the ruling does not specify:

- the circumstances established by the investigating judge that indicate the existence of risks justifying the application of a preventive measure (para. 2, part 1, Art. 196 of the Code of Criminal Procedure);

- the circumstances indicating that the application of less severe preventive measures would be insufficient (para. 3, part 1, Art. 196 of the CPC);

- evidence substantiating these circumstances (para. 4, part 1, Art. 196 of the CPC).

In other words, essentially three of the five mandatory elements of a ruling on the application of a preventive measure were not specified by the investigating judge.

Furthermore, the investigating judge provided absolutely no justification for either setting the preventive measure for the maximum term—58 days—or for setting the maximum bail amount.

It is evident that the investigating judge disregarded fundamental provisions of the law; therefore, attorneys D. Ponomarenko and Y. Zhovtan, after taking on the defense, immediately filed appeals against the investigating judge’s ruling with the Odesa Regional Court of Appeals.

In response to the appeal filed by attorney D. Ponomarenko, a panel of judges of the Odesa Regional Court of Appeals denied the request to extend the deadline for filing an appeal, even though that deadline had not even begun to run—due to the client not having been served with a copy of the ruling on the application of a preventive measure. A cassation appeal is currently being filed with the Supreme Court.

Attorney Y. Zhovtan filed a motion to recuse the same panel of judges of the Odesa Regional Court of Appeal, which was granted, and on September 10, the case will be heard by a different panel of judges.

7. Additionally, on July 20, 2018, at the request of the investigator, the investigating judge of the Primorsky District Court of Odessa issued another ruling—the legality and validity of which are questionable—removing our client from office. This ruling contains no fewer violations. An attempt to appeal the ruling to the Odessa Regional Court of Appeals was thwarted when one of the judges exceeded his authority: in a situation where the law requires a decision to be made by a panel of judges, he unilaterally decided to return the appeal to the attorney. A cassation appeal against this ruling is also being filed with the Supreme Court.

8. On July 24, 2018, the same investigating judge of the Primorsky District Court of Odessa issued another ruling, the legality of which must be reviewed by an appellate court—regarding the seizure of property temporarily confiscated during the aforementioned unlawful search.

The formulaic nature of the phrasing and the extreme brevity of the ruling by the judge of the Primorsky District Court of Odessa make it impossible to find any reasonable or lawful justification for the seizure of the property therein.

According to the law, an investigating judge must issue a ruling on the seizure of property no later than 72 hours from the date the investigator’s motion is received by the court; otherwise, the property must be returned to the person from whom it was seized. The investigator’s motion was received by the court on July 19, 2018. Consequently, the 72-hour period allotted for its consideration expired at midnight on July 22, 2018. The investigating judge ignored this “detail” and, 45 hours after the property was supposed to be returned to the client, seized the property.

Despite the fact that, at the time the investigating judge was considering the motion to seize the property, a suspicion had already been formulated under Article 369-2 of the Criminal Code of Ukraine, the investigating judge, for unknown reasons, based his decision on a completely different article—Article 368 of the Criminal Code.

During the hearing in the appellate court, the prosecutor was able to explain all the numerous violations of criminal procedural law with just one phrase: “technical error.” In essence, the prosecutor’s position suggests that the entire criminal proceeding described above is nothing more than a technical error.

An appeal against this ruling has also been filed by attorney Y. Zhovtan. Currently, some of the judges on the panel have recused themselves, and the appeal will be considered by a different panel of judges.

By a strange coincidence, all the court rulings that legalized the investigator’s actions and the measures of procedural coercion in this criminal proceeding (more than five) were issued within a single week by the same investigating judge of the Primorsky District Court of Odessa. Currently, some of these rulings are being challenged through appeals and cassation proceedings.

The defense sincerely believes that justice serves to uphold fairness and freedom, not arbitrariness; however, unfortunately, the circumstances of this criminal proceeding cast doubt on the validity of this axiom. We are confident that the practice of “denial of justice” must be stopped.

The inexplicable hype and artificial public outcry surrounding this fabricated criminal proceeding—which is riddled with “technical errors”— numerous violations of Article 62 of the Constitution of Ukraine and Article 296 of the Civil Code of Ukraine by the administrative bodies of the O.V. (who are also asking Ukraine’s executive authorities to “take control of the course of the judicial investigations into the case”—that is, in essence, asking them to violate Article 126 of the Constitution of Ukraine) allow us to make the modest assumption that the sole purpose of these criminal proceedings was to create conditions for removing the Academy’s rector from office, and that law enforcement agencies and the court were drawn into this shady scheme.

The attorneys ask the media, online news outlets, and bloggers to ensure that, when covering the criminal proceedings and related events, they do not violate Article 62 of the Constitution of Ukraine and Article 296 of the Civil Code of Ukraine.

Constitution of Ukraine

Article 62. A person is presumed innocent of a crime and may not be subjected to criminal punishment until their guilt has been proven in accordance with the law and established by a court conviction.

No one is required to prove their innocence of a crime.

A charge may not be based on evidence obtained unlawfully or on mere assumptions. Any doubts regarding the proof of a person’s guilt shall be resolved in their favor.

If a court verdict is overturned as unjust, the state shall compensate for the material and moral harm caused by the unfounded conviction.

Civil Code of Ukraine

Article 296. Right to Use One’s Name

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4. The name of a natural person who is detained, suspected, or accused of committing a criminal offense, or of a person who has committed an administrative offense, may be used (made public) only if a court’s conviction against that person has become final, or if a ruling has been issued in a case involving an administrative offense, and in other cases provided for by law.