A deaf de­fense

How Yanukovych's lawyers are drag­ging out the trial

The Ukrainian Week - - CONTENTS - An­driy Holub

Stale­mate. This chess term is the best way to de­scribe the sit­u­a­tion in the Obolon Dis­trict Court in Kyiv in a case con­sid­er­ing the pos­si­ble trea­son of Vik­tor Yanukovych. The last phase of lit­i­ga­tion ar­gu­ments prior to a ver­dict was sup­posed to start on July 30 morn­ing, but ef­forts to get the hear­ing go­ing came to noth­ing over the fol­low­ing three days. More­over, the con­di­tions for re­solv­ing this sit­u­a­tion are miss­ing.

Hav­ing the hear­ings post­poned for a day be­cause the plain­tiff’s lawyers were ab­sent suited not only the de­fense but the court as well: on July 30, Jus­tice Vla­dyslav De­vi­atko had an ap­point­ment to un­dergo an in­ter­view to as­sess his qual­i­fi­ca­tions, such as all Ukrainian judges are go­ing through to­day. More­over, such an in­ter­view could not be treated as a cake­walk by De­vi­atko, for whom the Yanukovych case is not the first high-pro­file case he is han­dling. In 2011, the jus­tice sen­tenced his col­league Ihor Zvarych to 10 years. At­ten­tion was once again fo­cused on him when the Yanukovych regime be­gan per­se­cut­ing peo­ple in­volved in the protests of 2014. Some in­di­vid­u­als, such as mem­bers of Au­tomaidan, were de­prived of their driv­ing per­mits with­out rea­son, while oth­ers were sim­ply tossed into re­mand cells un­der false pre­tenses. Three such de­ci­sions were made by De­vi­atko. What’s more, when a mas­sive wave of such cases came to the courts, he was the act­ing chief jus­tice, a po­si­tion he has main­tained to this day, al­though no longer in just an act­ing ca­pac­ity.



De­vi­atko was asked all the key ques­tions. To keep things short, his an­swers come down to this: the Obolon Court came out of a dif­fi­cult sit­u­a­tion “with dig­nity” and in two thirds of cases re­fused to re­mand the ac­tivists. De­spite De­vi­atko’s con­fi­dent be­hav­ior dur­ing the in­ter­view and his di­rect an­swers to all ques­tions, it will be hard for him to avoid ac­cu­sa­tions of po­lit­i­cal bias. Still, he ef­fec­tively be­came the first “judge of the Maidan” who suc­cess­fully passed his qual­i­fi­ca­tions as­sess­ment. Oth­er­wise, the Yanukovych case, which has been un­der­way for nearly 18 months, would have had to go back to square one.

Such an out­come would have been a per­sonal fail­ure for Prose­cu­tor Gen­eral Yuriy Lut­senko, who promised that ver­dict would be handed down in the case of the fugi­tive ex-pres­i­dent “by In­de­pen­dence Day.” Of course, he was re­fer­ring to last year’s In­de­pen­dence Day. The PG him­self con­sid­ers the case against Yanukovych a “mat­ter of per­sonal honor.” But see­ing how things evolved in the fol­low­ing two days, Lut­senko’s dream won’t come true this year, ei­ther.

On July 31, Yanukovych’s de­fense team switched to a dif­fer­ent tac­tic: at­tor­ney Vi­taliy Serdiuk came to court, but only to ex­press his dis­agree­ment with the ac­tions of the panel and once again file a re­quest to have this par­tic­u­lar panel and prose­cu­tors re­moved from the case. Af­ter this he left the hear­ing, but not the court build­ing.

This day turned out to be good for the Yanukovych de­fense lawyer. The tac­tics he has been us­ing are the same ever time, but they are slowly be­com­ing more ef­fec­tive. The scheme for all the pro­cesses con­cern­ing Yanukovych is more-or-less the same: at the be­gin­ning, the lawyers drag things out in ev­ery way pos­si­ble and at the con­clud­ing stages they do every­thing they can to sim­ply stop it. For in­stance, there was the tac­tic of call­ing the po­lice with a claim that a crime has been com­mit­ted in the sup­posed vi­o­la­tion of Yanukovych’s rights. “Ev­ery­body stay in your place!” screams Serdiuk dur­ing a re­cess in the hear­ing and de­mands that Prose­cu­tors Rus­lan Kravchenko and Maksym Krym be ar­rested on the spot. Of course, no ar­rests take place, nei­ther this time nor the other two times that Yanukovych’s lawyer called the po­lice to the court: one more time in this case, and a third time in the case in­volv­ing the shoot­ings on the Maidan. How­ever, it keeps all at­ten­tion on Serdiuk him­self, who keeps claim­ing that the po­lice aren’t re­spond­ing.

But the key role was not played by the lawyer from AverLex. On the se­cond day, a new lawyer was in­tro­duced in the Yanukovych team, Olek­sandr Baidyk, with whom the ex-pres­i­dent signed a con­tract a week ear­lier. The thing is that Baidyk al­ready rep­re­sented Yanukovych in an­other case through the Cen­ter for Sec­ondary Le­gal Aid. This is a cen­ter that is sup­posed to pro­vide le­gal as­sis­tance to any per­son who can­not af­ford to hire a lawyer. The lawyers who work with the Cen­ter sign their con­tract vol­un­tar­ily, but they are not al­lowed to refuse clients.

The ques­tion is how did a le­gal aid cen­ter get in­volved in a Yanukovych case in the first place. At the last stage of the case the ex-pres­i­dent’s de­fense lawyer re­fuses to par­tic­i­pate in the court hear­ings. The rea­sons can be many, but the re­sult is the same. The law re­quires that no act of the court take place with­out the pres­ence of at least one lawyer on the plain­tiff’s team, and so the courts have lit­tle choice but to re­quest that a le­gal aid lawyer be ap­pointed.

At one time, Ok­sana Va­syli­aka, di­rec­tor of the Kyiv Cen­ter, told The Ukrainian Week that de­fense lawyers were cho­sen on the ba­sis of a num­ber of cri­te­ria: their duty sched­uled, their spe­cial­iza­tion, and their ex­pe­ri­ence. How­ever, Yanukovych’s lawyers did not al­ways meet the first cri­te­rion. In­ci­den­tally, the ex-pres­i­dent con­sid­ers the ap­point­ment of a court lawyer a vi­o­la­tion of his rights. Baidyk him­self sees no con­tra­dic­tion in his acts, as this di­a­log be­tween the The Ukrainian Week cor­re­spon­dent and Baidyk in the court il­lus­trates: “Why were you a le­gal aid lawyer for Yanukovych?” “Be­cause I was des­ig­nated.” “But isn’t that a vi­o­la­tion of Yanukovych’s rights?” “Of course, it’s a vi­o­la­tion of his rights.”

Vik­tor Yanukovych’s new court-ap­pointed de­fense lawyer, Vik­tor Ovsian­nikov, has done noth­ing to dis­turb tra­di­tion. He re­fused to an­swer whether he was the duty lawyer the day he was ap­pointed: “This is con­fi­den­tial in­for­ma­tion.” In­ter­est­ingly, the Cen­ter used to pub­lish the list of lawyers on duty ev­ery day on its site, but now the page comes up as an er­ror. More­over, Ovsian­nikov also re­fused to come to the court to lis­ten to the state­ments of the prose­cu­tors dur­ing the third day of hear­ings, in­sist­ing that he had to fa­mil­iar­ize him­self with the ma­te­ri­als of the case first. Al­though Jus­tice De­vi­atko as­sured him that he would have the nec­es­sary time to do so af­ter the prose­cu­tors’ state­ments, the le­gal aid lawyer ig­nored this and left the hear­ing.

The sit­u­a­tion re­peated it­self three times a day af­ter re­cess was an­nounced. Ovsian­nikov’s ac­tions led to a fairly se­vere state­ment by the nor­mally re­served De­vi­atko: “The de­fense some­times for­gets that in Ukraine not every­thing can be de­cided by money. Some­times it’s also a mat­ter of honor, dig­nity and pro­fes­sional ethics. These ac­tions are a dis­grace to the high call­ing of a lawyer in Ukraine.” Of course, these words sug­gest that the judge is pow­er­less: De­vi­atko was forced to com­plain to the Cen­ter to ap­point a new lawyer and move the hear­ing to Au­gust 16.

How­ever, there’s no guar­an­tee that the new le­gal aid lawyer will be­have any dif­fer­ently. In the case of the Maidan shoot­ings, a de­cent lawyer was fi­nally found with the fourth at­tempt. But this at­tor­ney had a lot of com­plaints filed against him by the other mem­bers of the Yanukovych de­fense team. The case could end up with this lawyer los­ing his li­cense to prac­tice. In two weeks, it should be­come clear whether some­one will be pre­pared to risk such an out­come for the sake of honor, dig­nity, pro­fes­sional ethics and the high call­ing of a lawyer in Ukraine...

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