On February 3, the panel of judges of Kyiv Court of Appeal including Denys Masenko, Valeriy Lashevich and Victor Hlynnyy heard the position of the representatives of Hennadiy Korban’s defense in the consideration on the merits of the appeal against his arrest. Within a few hours the defense councils of the presidium member of UKROP political council brought to the attention of the judges the arguments concerning the illegality of the ruling made by Judge Mykola Chaus of Dniprovskyy District Court.
The defense councils drew attention to of the panel to numerous violations of the existing Code of Criminal Procedure by the prosecutors and Judge Chaus. According to lawyers, violations of law had been committed already before the trial began. In particular, the prosecutors’ petition to change the measure of restraint for the detainee with the respective annexes has not been handed to the defense prior to its consideration, as provided by the current Code of Criminal Procedure. Instead, the consideration of the case began on December 25, 2015, when the court had no documents at its disposal, which would confirm that the petition had been handed to the defense councils. In addition, the court of primary jurisdiction never notified Hennadiy Korban on the appointment of court proceedings, not to mention the fact that it satisfied the motion of the investigator of Kyiv Prosecutor’s Office Oleksandr Nedilko on the detention and bringing the politician in court, despite the fact that it was not the matter of failure of attachment and commital, as stipulated by the provisions of the Criminal Procedure Code.
Defense council Oleksandr Lysak said that Dniprovskyy District Court satisfied the motion of the prosecutor's office about the arrest and bringing Hennadiy Korban before court, without taking into account the evidence provided by defense that he was put to hospital after surgery. The next day the Judge Chaus again satisfied the next motion of the prosecution on Hennadiy Korban’s attachment to court, although the day before was announced a break in the hearing due to a sharp deterioration of the politician’s health condition.
However, the judge Chaus held more than a 30-hour session during which Hennadiy Korban was in critical condition and needed urgent medical attention. Even the fact that a dozen of unknown persons (“titushkas”) in disguise broke into the courtroom at midnight, smashed furniture and tried to provoke a fight, it did not stop Judge Chaus and was not a reason for adjournment.
According to lawyers, one more ‘highlight’ from Nicholas Chaus was the fact that the court did not wait for the results of the forensic examination they had assigned lately, which was to determine the politician’s capability to participate in the investigation and in court hearing. However, Judge Chaus, without having the relevant competence, determined the health condition of Hennadiy Korban as satisfactory on his own, as the one which allows the suspect to participate in the meeting. However, he did not consider any conclusions of doctors or medical examination results, which indicated to the contrary.
But the thing the lawyers were interested the most throughout the case hearing by Judge Chaus, was what relation Dniprovskyy court had to the case, as in the case file did not have any confirmation of its relation to the prosecutor's office of Kyiv, whose registered address is located in Pechersk district of Kyiv. “This petition was considered in Pechersk district court, according to the location and registration of the prosecutor's office of Kyiv,” said human rights activist Oleksandr Lysak.
In turn, lawyer Oksana Tomchuk noted that the defenders still had not received a response from Kyiv Forensic Examination Bureau, their expert said that the institution may not provide information on the forensic examination of Hennadiy Korban until its completion. “This document is still classified,” said Oksana Tomchuk, stressing that the relevant document is almost critical to the court's decision on the appeal against the arrest of Hennadiy Korban.
During his speech, lawyer Oleksiy Shevchuk said that Judge Mykola Chaus, in violation of the law, also decided to hold a closed judicial session, without having the relevant competence. “Any decision of Judge Chaus without the opinion of forensics is illegal,” said the lawyer.
The defense councils asked the panel of judges to carefully consider all the facts and make a fair judgment. “These processes cannot stay out of the public eye. We all understand the political component of this matter, the pressure exerted on all participants in the process. However, I sincerely believe that the situation is not hopeless. I ask the court to satisfy our appeals in full,” Oksana Tomchuk said.
In turn, defense council Oleksandr Miroschnyk focused attention of judges of the Appeal Court on numerous inaccuracies in the minutes of the hearing at Dniprovskyy District Court during the examination of the Prosecutor's motion to arrest the politician. In general, during his speech, Oleksandr Miroschnyk provided more than a dozen of factual and technical inaccuracies in the document, and showed to the panel numerous examples, when the important facts were not put on record, among which the petitions filed by the defense councils. “As a result of the replacement of the court clerk due to banal fatigue during the proceedings, most of court records are devoid of any logic and history,” Oleksandr Miroschnyk says.
Lawyer Alina Samarets was the last among the defense councils to outline her position; she told the panel that Judge Mykola Chaus abused her rights as a lawyer at the time of consideration of the appeal against Hennadiy Korban’s arrest. In particular, according to the human rights activist, the judge has not given her time to study the case materials. “I said that 20 minutes were not enough to get acquainted with more than 300 pages, and the legislator has clearly defined the minimum period, which I have to get acquainted with the petition and to prepare defense – no less than 2 hours. However, Judge Chaus did not pay attention to it and tried to continue the meeting,” said the lawyer. In addition, she noted that the judge had not told her about the court members, and did not explain the right of withdrawal, to which Mykola Chaus asked, playing with the concepts, whether the lawyer understood her rights.
Commenting on the position of the defense, the panel of judges satisfied the petition of lawyer Oksana Tomchuk to postpone the hearing of the case due to fatigue of the participants, first and foremost, of her client Hennadiy Korban. Presiding Judge Denys Masenko announced the “rest break” and the adjournment of the meeting to February 8 2016, 11.00. Before the next meeting of the defense and the prosecution must ensure the presence of witnesses in the case of politician Hennadiy Korban.
