32 Non-Appearances and Almost 20 Recusals: How Defense Delays KDAC Case Consideration

The case of the “Vovk Films” has barely begun to be considered because of endless recusals, and the stage of preparatory proceedings has been going on for more than a year. 

Nothing has changed, and one of the participants — former head of the State Judicial Administration Zenovii Kholodniuk – was exempted from criminal liability because the statute of limitations expired. As of July 10, 32 preparatory hearings had not been held in the KDAC case, and the participants filed more than 50 written motions to postpone the court hearing.

The consideration of this case in court turned into a super lengthy process, an almost absurd one. The main reason is that quite often, the defendants abuse their procedural rights, taking advantage of a gap in the Criminal Procedural Code (CPC) of Ukraine. The example of the KDAC case prompted us to study what exactly the parties were doing to delay the work of the court.

Which gap in the CPC of Ukraine are we talking about?

Unlike the administrative, civil, and economic laws, the criminal procedural law does not formally prohibit participants from abusing their procedural rights. However, such a prohibition is a general legal principle, that is, it exists without special enshrinement in the law. The Criminal Court of Cassation of the Supreme Court drew attention to this. That is, in this case, “not prohibited” still does not mean “allowed.”

Let’s move on to specific examples. There are several opportunities for the defendants in the cases. 

1. Declare unreasonable recusals

It is possible to declare the judge’s recusal when there are certain doubts about their impartiality. This mechanism exists so that there is no doubt in the final decision on the case due to the fact that it was adopted by an illegal or biased court. That is, the goal is quite noble, but the defense in the KDAC case declared almost 20 recusals of the judges and the panel as a whole in a year.

The defendants and their lawyers stated, for example, that Judge Markiyan Halabala liked an interview with a judge of the Supreme Court on Facebook, and Judge Olena Tanasevych, together with other judges and one of the persons involved in the case, celebrated the New Year. The court did not grant such recusals, nor did it consider those that had already been decided by it earlier. 

2. Fail to appear at court hearings 

The parties to the case traditionally ignore the hearing for various reasons: from sudden illnesses to the birth of a child. The prosecutor initiates the imposition of fines, and defenders are reprimanded for being really late; however, this does not help. 

If at least one party to the case is absent, the HACC is forced to postpone the court hearing. In the KDAC case, the preparatory hearing lasted almost a year, and only on June 12, 2023, did everyone come to court. “This wonderful day has come — everyone is present!” the presiding judge Viktor Nohachevskyi joyfully commented on this event. 

3. Piling up the court with unfounded motions

Any participant can file a motion with the court to resolve a particular issue, but sometimes it turns into abuse. For example, one of the defendants in the KDAC case asked to remove the broadcasts of the hearings from the HACC YouTube channel and change the schedule of the appointed court hearings. Such motions not only do not relate to important issues regarding the case, but sometimes are not procedural at all. Despite this, the court is obliged to listen to the positions of the parties and spend a lot of precious time on this.

4. Wasting just a little more time — what are the other options?

The parties to the cases also use other methods of delaying the trial. This is filing numerous and not entirely substantiated motions for the appointment of examinations, and the use of offensive statements addressed to other participants in procedural documents, and a lengthy acquaintance with the materials of criminal proceedings, and finally the intentional non-receipt of court notifications sent to the postal address specified by the person and others.

How does the court react in the KDAC case?

A panel of judges consisting of Viktor Nohachevskyi, Markiyan Halabala, and Olena Tanasevych, for their part, is making efforts to prevent abuse and consider the case within a reasonable time. For example, they set a deadline of June 14, 2023, for filing motions and complaints against the defense. After that, the court will accept additional applications only for valid reasons.

As far as certain motions are concerned, the judges decided to consider only those relating to the participants who appeared at the hearing. This seems logical because there are really a lot of persons involved in this case: ten accused and at least one lawyer for each. In addition, recusals filed repeatedly and on the same issues are left without consideration.

The panel of judges also takes attendance seriously. For example, if lawyers do not appear at hearings without good reason, judges may complain about the improper performance of their professional duties. The court-appointed specialist will study how legitimate the excuse for skipping hearings by one of the accused due to illness was.

What changes should be introduced to avoid abuse?

The ultimate goal of such manipulations is to delay the consideration of the case so that the court cannot resolve the issue of the person’s guilt. To limit the scope for abuse, it is necessary to supplement the CPC of Ukraine with a provision on possible manifestations of abuse of procedural rights, as well as to determine how the court may respond to them, for example, to allow the court to fine participants (including lawyers) for such actions and leave repeated motions and those that were already decided by the court, etc., without consideration.

We hope this will speed up the impartial investigation and consideration of cases in court, and there will be significantly fewer examples, such as with the case of “KDAC films.”

The analysis was prepared by Pavlo Demchuk, a legal advisor of Transparency International Ukraine, and Yuliia Poltorak, an intern at the legal department of Transparency International Ukraine