Page 41 - Report on the infringement of rights and guarantees of attorneys in Ukraine
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In the case against the former president, the opportunities of the
defence were also restricted by preventing questioning of defence
witnesses.
PROPOSED WITNESSES ADMITTED
On 19 April 2018, the panel of judges, having not yet questioned all those defence witnesses
admitted to questioning, announced a transition to court debate. The statements made by attorneys
that the premature transition to debate deprives them of the possibility to question more than 10
witnesses, including former Prime Minister M. Azarov, former Minister of Internal Affairs V.Yu.
Zakharchenko and a number of other officials during the Yanukovych presidency, were ignored. The
panel of judges also ignored the statement by attorneys that two witnesses were ready to give their
testimony only in the courtroom, and there was no need to comply with international agreements,
which the court was avoiding to comply with, to question them . The presiding judge stated that the
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court had fully clarified the circumstances of the case and proceeded to debates .
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Such a situation not only violates the principle of equality of arms, but also
casts doubts on the possibility of a fair trial. According to ECHR practice, if an
accused person reasonably requested hearing statements of witnesses that
could play a significant role in strengthening the position of the defence or
even led to his acquittal, the government must provide relevant reasons for
rejecting such a request (Topic v. Croatia and Polyakov v. Russia cases). In the
case of V. Yanukovych, the court has already granted the defence permission
to question witnesses, which is evidence of the validity of their questioning,
whereas there are no compelling reasons for the subsequent termination of
questioning.
Furthermore, if a witness is missing (absent from court hearings) the court must
make a reasonable effort to secure his/her presence (Bonev v. Bulgaria and
Karpenko v. Russia cases) and properly consider the defendant’s application
on such a matter (Pello v. Estonia case). According to international law, the
refusal to question witnesses who are abroad, despite the presence of
applications requiring such questioning by witnesses and defendant, cannot
be regarded as "reasonable effort" or "proper consideration of a defendant's
application". A court’s failure to justify the refusal to question a witness may
restrict the right of defence, which is incompatible with the guarantees of a fair
trial. (Vidal v. Belgium and Bocos-Cuesta v. The Netherlands cases).
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