Page 41 - Report on the infringement of rights and guarantees of attorneys in Ukraine
P. 41

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
                                                                         77
            court had fully clarified the circumstances of the case and proceeded to debates .
                                                                                            78





               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).







                                                                                                          41
   36   37   38   39   40   41   42   43   44   45   46