Page 40 - Report on the infringement of rights and guarantees of attorneys in Ukraine

ISSUES WITH
QUESTIONING
OF WITNESSES

Blocking of comprehensive access of the defence to evidence of the prosecutor's office and during
work with witnesses. It happens both at the pre-trial investigation stage and at the stage of
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considering a case by court on the merits. The best example of such actions is a series of processes
over the former president of Ukraine Viktor Yanukovych, defended by AVER LEX Attorneys At Law.

Vitaliy Serdyuk
attorney of former president Viktor Yanukovych

On 4 December 2017, the court began to "hurry up" Viktor Yanukovych's attorneys when
they were questioning witness Arseniy Yatsenyuk (former Prime Minister of Ukraine),
referring to the fact that another witness was waiting to be questioned. The court and the
prosecutor's office were saying that the questions asked by the defence were a waste of
time. The court interrupted A. Yatsenyuk's questioning by attorneys of the former president
and let the witness go before the defence had finished asking questions .
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On 24 January 2018, during the questioning of a witness, Andriy Parubiy (Chairman of the
Verkhovna Rada of Ukraine), the court, being dissatisfied with the approach taken by the
attorneys of former president Viktor Yanukovych to questioning and considering it a waste
of time, limited the time of interrogation by the defence to only one hour. After the time
stipulated by the court was up, the presiding judge stopped questioning just when the
defence was asking the next question .
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On 1 February 2018, questioning of the President of Ukraine Petro Poroshenko took place
via video link. The defence was again limited in time, the attorneys were deprived of the
opportunity to ask the witness all its questions, which the defence considered necessary.
The questioning was again interrupted immediately after the attorney asked the witness
another question .
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The ECHR considers it a violation of Article 6 §§ 1 and 3 of the Convention,
when a defendant has no adequate opportunity to question a witness, unless
there are compelling reason (Schatschaschwili v. Germany, Al-Khawaja and
Tahery v. The United Kingdom and Solakov v. the former Yugoslav Republic of
Macedonia cases). Constant interruption of questioning of witnesses during
questioning by the defence cannot be considered "an adequate opportunity
to question a witness" Moreover, the absence of such restrictions on the
prosecution indicates a violation of the principle of equality of arms. A court’s
statements on its willingness to save time and expedite the proceedings may
not serve as grounds for failure to observe such a fundamental principle for
proceedings as the equality of arms (Nideroest-Huber v. Switzerland case).

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