A deaf defense

6 August 2018, 12:51

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 Da. 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.

RELATED ARTICLE: The Hapsburg Group: Old Europe at Yanukovych's service?

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 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.

RELATED ARTICLE: Who are you, Mr. Yanukovych?

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…

Translated by Lidia Wolanskyj

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