Lawyer Kostiantyn Hloba: "Keeping Roman Chervinskyi in custody is legal nonsense"
The Supreme Court has ruled that the transfer of Special Operations Forces officer Roman Chervinskyi to the Donetsk region was illegal, as volunteer fighters with three dependent children have the right to serve at their place of residence. But so far, according to his lawyers, this has not affected the State Bureau of Investigation, which continues to investigate the proceedings on the ex-intelligence officer’s alleged absence without official leave. In turn, Chervinskyi’s lawyers emphasize that this decision of the highest court proves that there is no risk, which prosecutors cite in court hearings in another case in which he is a suspect - regarding the rocket attack on the Kanatove airport - when it comes to a preventive measure.
They also intend to prove in court that the suspicion brought against the ex-intelligence officer is groundless, citing new circumstances. However, it is not yet known when this will happen, as the hearing has been postponed due to the judge's illness. In addition, the defense team has repeatedly tried to summon key witnesses to court to clarify the full facts. Although some judges supported this, so far none of these witnesses have appeared in court.
Roman Chervinskyi openly states that he is being politically persecuted while talking to journalists in court. Therefore, while talking with his lawyer Kostiantyn Hloba, managing partner of Barristers Law Firm, we discussed whether we would be able to see and hear all the witnesses and find out what really happened when the case is considered on the merits, and whether the defense will apply to the European Court of Human Rights for political persecution. At the beginning of our conversation, he says that he is an idealist, so he believes that Chervinskyi will eventually be able to prove his case. But he adds that it will not be easy.
"AS THE DEFENSE, ONE OF OUR TASKS WILL BE TO FIGHT FOR CHERVINSKYI'S CASE TO BE HEARD IN KYIV"
- We are showing the truth, and now, here in the courts in Kyiv, the judges are letting us do our job - to convey it. Even though they are playing the game "We don't hear, we don't see," my interlocutor explains, "If we are talking about taking the case to court and considering it on the merits, this will not be Kyiv.
Judges from the regions have almost no experience in handling such high-profile political cases because there are no similar precedents that shape judicial practice and process in the regions. (This is the main problem.) Accordingly, the experience and education of a judge somewhere in the region, unfortunately, leaves much to be desired. When my colleagues and I visit other regions on other cases and hearings are held there, they are, I'm not afraid to say it, "collective farm", where the judge has his code of law, his understanding). I am afraid of exactly this. That a judge can simply up and go to a meeting room when he or she has no right to do so. The judge can do some kind of his process, which the Criminal Procedure Code does not provide for. Therefore, I am cautious about what will happen in court on the merits. Yes, we all hope that we will finally see those witnesses, but the nuance is that the prosecutor may refuse to question a particular witness. And this will be manipulation. But the court may not interrogate them, because a judge somewhere will not care.
- Doesn't the Criminal Procedure Code oblige to interrogate all witnesses when it comes to the merits hearing?
- This is where we come to the conclusion that somewhere, let's say, outside the Kyiv region, the quality of the trial leaves much to be desired. This is, of course, not a one hundred percent rule. There are really good judges outside the Kyiv region. But they are few. A judge who really conducts a high-quality and proper trial is primarily about experience. Judges in the regions do not have the experience that Kyiv judges have. This is the problem. Therefore, we, as the defense, will undoubtedly have one of our tasks, and I set it for myself first and foremost, to fight for Chervinskyi's case to be heard in Kyiv. I want to emphasize once again: judges from the regions do not have sufficient experience in handling such cases. Somewhere in the region, they will definitely not hear us. There, judges will be even more afraid of this, so to speak, "machine system". They won't hear us, won't see us, and will conduct their own process, which is not provided for in any way. The lawyers recuse themselves - they are rejected. The lawyers make comments - okay, but we do everything the same way. This is what can happen there.
- It's strange because most judges have passed the qualification assessment procedure, which means that the quality of their work should have been taken into account by the HQCJ.
- Believe me. We have 60 attorneys in our firm, and we work all over the country. Outside the Kyiv region, 80% of courts are a disaster. We, as attorneys, come to the court, convey the record, and the judge hears about it for the first time. So how should we react?
A lawyer in complex high-profile cases provides defense as provided for by the Criminal Procedure Code and in accordance with modern practice, while a judge from a region that does not have similar experience usually does not know how to respond to certain procedural algorithms (He has never had practice, he does not know the issues involved. He does not know how the Supreme Court looks at these issues).
- One of the problems with such trials as the Chervinskyi case is that they are related to the military and have certain specifics. For example, I noticed that Roman and your fellow lawyers emphasize certain technical nuances in their speeches. In particular, they emphasize that missiles are programmed for a certain number of days, and the pilot of the plane should have been informed which airfield to land at only after it was in flight. If the military courts had not been destroyed, they would have been the ones to consider such cases.
Tell me, why do you think that the case will be sent to another region for consideration, and not left in Kyiv?
- Because the case is essentially heard where, according to the investigation, the crime was committed. This is provided for by the Criminal Procedure Code. But we have some nuances. In my opinion, this is an artificially invented case, so it is difficult to say when exactly the crime was committed, according to the investigation. When did Chervinskyi plan and execute all the actions in Kyiv or in Kanatove? This will be a controversial issue when we determine whether the case will be heard in Kyiv or outside of Kyiv. It's a really fine line here because everything that is attributed to Roman was done while he was in Kyiv.
- Do lawyers even get asked where to transfer the case?
- No. Unfortunately, the legislator has given lawyers a modest role. We will respond to violations. They will draw up an indictment and send the case where they see fit. And we will further appeal to the Supreme Court, respond to these violations and raise the issue that the highest court has determined our judicial jurisdiction over this case.
- So do you assume that Roman will be transferred to the place where the case will be heard?
- No, I think he will be transferred from here to the hearings. In general, we are working to convey to the court the position that keeping Roman Chervinskyi in custody is legal nonsense. Firstly, 90% of the witnesses in the case file speak in his favor. The investigation simply does not notice this. At one of the hearings, I provided the judge with a table where I analyzed what is written in the suspicion and what the prosecution witnesses say that does not correspond. For example, the suspicion states that Roman did this and that. On this fact, a prosecution witness testifies that Roman did not do this. Either other people did it, or it was not done at all - it all depends on the situation. This is the problem. And our role in court today is to inform: "You just read it". Recently, I posted on Facebook that I had visited the deputy chairman of the Shevchenkivskyi District Court of Kyiv. I came with one message: "Read what we write". That's all, I don't ask for anything else.
- I noticed when you were handing the judge this document analyzing the testimony of witnesses that it was quite voluminous. It takes time to read it and compare it with the case file. For any judge. How do you do this in these prompt trials?
- They don't have to be like that, they turn them into a quick competition. For example, let's take one of the previous hearings on the extension of the preventive measure. There were 10 days left until the end of our client's detention. That is, we had the right to hear this case for 10 days within the law without any violations. What did the judge do? He wanted to hear the case every day and did everything he could to make it happen. As a result, we listened for a day, and, thank God, the hearing was adjourned to the next day at our request. It turned out to be two days.
- The hearing was postponed because they were waiting for a witness who could not come to court in the evening.
- It was not the only reason. I also filed a motion because we consulted with our colleagues and realized that everyone was tired and that it would be very poorly done if we continued to convey the case theory to the court. So we took this break and continued to work with an added vim the next day.
But judges try to listen day into date. The question arises: why? That's why, when I filed motions in court, I emphasized: "Your Honor, we are not limited". The prosecutor is not comfortable, he is in a hurry. I understand why he is doing this so that we are not heard in this hurry. Someone didn't read it. Something was not written down. I call this extra-procedural manipulation. In fact, my ten-year experience allows me to write a book about extra-procedural manipulations. There are a lot of them. This is something that is not written in the law, but something that is used and allows the criminal process to be customized. And the prosecution is successfully using it.
- Nothing is preventing any judge from taking their time, taking a break to figure things out.
- But they don't do that, do you understand? I didn't write a treatise on some legal topic. I made a concise table. Read it. Do you think that in the decision that we received from this judge, he reflected at least a word about this fact? No. What is the judge supposed to do by law? Examine, evaluate, reject or accept. Four actions, none of which have been taken.
- One of the pieces of evidence cited by the investigation is a video allegedly showing Chervinskyi transferring certain information to the Russians. The defense emphasizes that this video is from a Russian TV channel. Is there any way to verify its authenticity? And if he did pass some information to the Russians, why is he not being prosecuted for treason?
- The authenticity of this video cannot be established. In order for an expert to recognize the authenticity of this video, the original source on which it was recorded is needed. Secondly, I made a transcript of this video. There is not a single word about Roman providing any information. Not a single word! And if Roman did provide the other side with some information, why is there no question of treason? We just got involved in this case three months ago, at the next extension of the preventive measure, and I clearly told the judge: "Look, you don't need anything to just manipulatively write this in the suspicion. The prosecutor just wrote it, and that's it. But if we make it a separate crime, we need to prove it, we need concrete evidence, and there is no evidence." This is where the manipulation comes in. You asked the right question: Why is there no treason? Because there is none because Roman did not give out any information.
"IF YOU EXCLUDE ALL KINDS OF MANIPULATIVE MOMENTS, THEN 80% OF THE CASE MATERIALS CONFIRM OUR POSITION"
- In addition to Chervinskyi's immediate commanders, who have already been questioned in court, there are other participants in this story. The defense says that representatives of different branches of the military were involved in the operation, and he could not give them commands. But let's talk about the key witnesses whom the defense lawyers are asking to be questioned in court and who have not yet been present. One of these key witnesses is an SSU officer who, according to Roman, came to him, and that's how it all started. He is summoned to court, summonses are issued, but he does not come. Please tell me, can he be subject to taking into custody at this stage?
- Again, if we take the "ideal picture of the world," yes. If we take our picture of the world, the judge simply won't do it. According to the Criminal Procedure Code, of course, it can be applied. We initiate the interrogation of a witness in court. The judge makes a decision accordingly. One time he did not appear, the second, the third time - and there may be such a decision. But I am convinced that the judge will not do this. Why? These are such instinctive things, but I pay attention to them. When the judge decided to interrogate this witness during the previous extension of the preventive measure, the prosecutor immediately stood up and started making excuses, saying why it was not possible.
- He did not justify himself, but explained that there was already a testimony of this witness in the case, so there was no point in doing so.
- Yes, but it looked like an excuse.
In an ideal world, this should not happen. Even the prosecutor should not stand up and say that he is against the interrogation of the prosecution witness.
We have three interrogation protocols for this witness in our case. The first one is from 2022, which we can all see. The other two are hidden from us. This is what I said in court.
- Why don't they give them to you?
- Because it describes all the manipulations of the investigation. Let me explain. When I interviewed this witness in our office, I asked him a clear question: "Is this interrogation yours?" He answered: "Yes, but this is the first one, and it is not true by many percent". I asked him, "Why?" He explained: "Because during the first interrogation, the investigator told me that it was a formal action and the case would be closed, so I described the situation in very general terms, without going into details. In very general terms." In subsequent interrogations - the second and third - this witness gave clear testimony that there was a group of people who reported to the leadership, that Roman was not the head of this group, that in fact the actions that underlie the suspicion against Roman were carried out by the SSU. And the investigator has these protocols.
- How do you know that all this exists if you have not seen these protocols?
- Because this witness tells me that there are. As a lawyer, I have the right to question witnesses. The only difference is that an investigator examines, a lawyer interrogates. In fact, it is evidence of equal strength. A witness for the prosecution told me that he had been interrogated several times. But this protocol, which I have, and all the case materials, is the first one, and it does not reflect the actual circumstances.
- If this is evidence of equal strength, why doesn't the court accept it?
- The judge accepts them, reads them, but does not reflect their analysis in the ruling. This is the nuance. Again, we go back to the Criminal Procedure Code, the judge is supposed to examine, evaluate, accept or reject, but this is ignored.
- If you already have this testimony, why do you need this witness in court?
- Because we are not heard. Here is a document stating that I interviewed the witness. The result is a ruling that does not even reflect this. Why do I need to question this witness in court? Because maybe I can get through verbally. If the judge does not respond to the evidence I present, I obviously have to convey it in some other form. So I am looking for this form. I must not stop. Now I've been turned into a lawyer who is "looking for a form of communication" of the same information.
- Another important witness that the defense requested to be called to court was Zaluzhnyi. It is clear that when he was the Commander-in-Chief of the Armed Forces of Ukraine, it was difficult to do so. Will you now insist on interrogating him in court or will you wait for the materials to be sent to the court for consideration on the merits? Because the prosecution says that they have his letter and written answers to the questions.
- We are working on it. But I am convinced that no investigating judge will make this decision today. At one stage of the court hearings, when we were not yet lawyers in this case, our colleagues obtained a court decision to interrogate Zaluzhnyi as a witness in court. But it was not enforced. It is clear that now the situation has changed to some extent. I want to believe that it has changed in a positive way. But I am still, let's say, watching this situation. I am not initiating it, but this does not mean that tomorrow we will not come directly to this decision. Because I don't really believe that a series of extra-procedural manipulations will not start around this issue, which will turn it into a show. And I don't need a show. I need a quality process.
There is another important nuance. When the full-scale war began, the head of the Security Service of Ukraine issued a decree that introduced, so to speak, a non-documentary turnover. That is, most orders and reports were given verbally. This is reflected in one of the interrogation reports that I cited in court. The lack of document flow allows our opponents to say that there was no authorization for the transaction. However, the operation was authorized across the entire vertical, and most witnesses confirm this fact.
- Bakanov, the former head of the SSU, who was supposed to know about this special operation to hijack the Russian plane, is now your colleague, a lawyer. Are you going to ask him to appear in court as a witness?
- Roman has such an idea. But this issue is still under discussion. Don't get me wrong, there are actions that need to be taken even if there is no result. And there are a number of issues when you don't understand that it will work, then it's better not to do it. These two questions about witnesses are probably from the second block. Observing the process that is currently taking place in the Shevchenkivskyi District Court, I am inclined to think that this will be some kind of fruitless action. And the next time we really need it, we will not use it because we will not be able to summon these people again. This is a rather complicated algorithm to understand, but it is like that.
- I don't know what materials are in the case, so I can only talk about what I see and hear in public during the hearings. But there are still a lot of questions. For example, whether there was any working group at all, which your defendant constantly talks about, who set what tasks for whom and what tasks. Therefore, I would like to hear the version of events at the meetings from the direct participants. After all, we do not see Zaluzhnyi's letter for obvious reasons.
- Yes, these are logical questions. But let's leave them for a little later. That's the first thing. Second, regarding Zaluzhnyi. Let me give you an example. If I write you a letter saying that a certain notional scoundrel has done something on the street, and before that he communicated with you, and ask whether you gave your consent to his actions, you will, of course, say that you did not. The investigation did exactly that. They briefly described the case in an appeal to Zaluzhnyi, and it is clear that Zaluzhnyi replied that he did not give his consent to this "savagery." This is the situation. And the prosecutor uses this answer in court. So no one gave consent to this "savagery".
- And if both Zaluzhnyi and Bakanov had stated in court that they had not consented to this special operation, what would you have done?
- We have 15 witnesses in the case, who give approximately the same testimony. And if Bakanov and Zaluzhnyi come tomorrow and it turns out that this did not happen, let's conduct a simultaneous interrogation.
- Can such interrogations be conducted in court?
- You can conduct certain cross-examinations - there is a corresponding methodology. And, relatively speaking, based on the testimony of others, we can establish the outline of the incident. This is a complicated process. But it can be done.
Let's move on. What should a judge do? Does he have to assess the discrepancies? Yes, he should! How should he make a decision? Based on the assessment of what he perceives. Where are the testimonies discrepant? Why do they disperse? Who should be trusted in this situation? This is an intellectual analysis of the situation, and the judge has to do it.
- You don't have a lot of legal tools in this case, given its specifics, do you?
- Yes, we are working with 90% of what the investigation has collected. But if you remove all kinds of manipulative aspects, then 80% of the case materials confirm our position. That's why we work with the criminal proceedings, we work with the prosecution witnesses. Because they testify in our favor. This is the bottom line. I don't have to look for anything.
- The results do not show this yet.
- They do not hear, do not read, do not pay attention.
- You also wrote on social media that, on the one hand, the pre-trial investigation seems to have been completed and the materials have been opened to the lawyers for review, and on the other hand, you learned that some kind of examination is still underway. Can you tell us in more detail what it is?
- We sent lawyers' inquiries to a number of expert institutions, asking whether any examinations are currently being conducted. And we received a response from one of them that the examination is still underway.
- Did they explain in their response what kind of expertise it was?
- No. They do not provide such information. What is the nuance? If the pre-trial investigation is completed and the so-called stage of Article 290 of the Criminal Procedure Code is announced, which is when the materials are opened, then the pre-trial investigation cannot be conducted. That is, the investigator and prosecutor have collected the materials and opened them. They cannot "complete" the investigation and add something else.
There are two very interesting legal issues here. First, what kind of legal nonsense is this? And secondly, it turns out that our pre-trial investigation is ongoing, and accordingly, the terms of the pre-trial investigation are expiring, they have not been suspended. Formally, they have completed and stopped it.
I don't know whose decision it was, but they have already created a kind of legal collapse at the start. That is, the opening of the materials suspends the pre-trial investigation, but formally the deadlines do not expire, we can familiarize ourselves with the materials for a year. And given the examinations and the ongoing pre-trial investigation, do the deadlines then expire?
The second question is: what kind of expertise is this? We are guessing that it may be a military expertise and that it is in our favor. That's why they are probably hiding it in this way.
What is the manipulation? How do you eliminate evidence that harms you? Send it somewhere for examination. Appoint an examination under Article 290, familiarize the lawyers with all the materials you have, forget to open this later, and you cannot use it in court.
- Well, you just think that, you don't know for sure, do you?
- Based on the fact that they have created a legal phenomenon that does not exist in the legal nature, they did it either because of ignorance or on purpose. If it is ignorance, then it is understandable. But if it was intentional, then we are decomposing the situation, and for what purpose? Either to remove it from the evidence so that we don't see it, or for something else. But I have only one answer so far.
- But it happens that the portions are separated, the materials are sent to the court, and the case is investigated further.
- This is not a separation. We had a separation, and for some reason, this examination was not included in that separation. And if they really needed to separate it, I would understand. But no.
- Will the experts have to familiarize you with their conclusions?
- That's the thing, no.
- Your colleague Andrii Iosypov wrote a post about the case of Roman Chervinskyi and the signs of political persecution. He pointed out that the ECHR (European Court of Human Rights), depending on the case, has formed several basic signs of political persecution. Do you plan to apply to the ECHR regarding political persecution of your defendant, if you see such signs?
- There is a second group of lawyers who are currently collecting materials on these facts. We are planning a meeting on this matter. So far, I cannot say for sure. But in any case, the defense team is collecting this evidence as a separate unit, and we may come to the conclusion that the evidence is sufficient for the ECHR. If we come to the conclusion that this is not the case, we will not implement this algorithm.
- You have said publicly that you have recently been threatened and that there is some kind of interference with your advocacy. But you did not say how it is manifested. Can you explain?
- As soon as Roman and I signed the contract, several cars appeared in front of our office, which were parked there almost around the clock with their lights on and engines running. These were two minibuses. There were people in them, partly in civilian clothes, partly in police uniforms. I called the police. I was told that it is not because of me. But when I called the police, there was a very interesting situation. Two policemen approached the minibus, the door opened, four arms reached out, took the policeman, the door closed, and something happened to him for about 5-10 minutes. Then the door opened, he was shoved out, and the policeman's rhetoric was completely different after that. They started telling me about some security guards, that there was someone in the building where our office was located, and that they were being protected.
We recorded the number plates of these cars, and I filed a Crime Incident Report.
But if we are talking about living in some kind of "ideal world," I have a question: why haven't I been interrogated on this issue yet?
- Under what article is the proceeding opened?
- Article 397 of the Criminal Code, interference with the activities of a defense counsel or representative of a person.
- Why did you take it all personally, since you are not the only lawyer in the office and in the case in general?
- Because my arrival at the office is accompanied by the cars mentioned above. That is, there is a system. It's not the first time I've worked on similar cases.
In addition, I am constantly receiving messages saying, "Let's talk, let's meet. I went to one such meeting. I was told directly that "it's not your business and it's not a fact that you can handle it." Do you understand?" And when a man of strange appearance comes and explains all this to you persistently...
- How did this person introduce himself?
- Friend. Imagine that you are conducting a journalistic investigation and you are asked to meet. You arrive. A stranger says: "I'm a friend, you shouldn't be doing an investigation, and it's not clear that you'll be able to pull off this investigation." What is your immediate association? Well, the appropriate one.
Everything seems to be fine. But the atmosphere of this meeting was not friendly.
- Have you passed on the messages you receive to law enforcement agencies?
- I have passed some of them on, and we are still collecting some more. Because I receive various letters at my office that I have to filter out. I can't say that all negative emails are threats. That's why we select those letters where I really have questions, and we will definitely pass them on to law enforcement agencies.
- Why did you decide to pay your own UAH 2 million as bail if the court does decide on an alternative to arrest? At least you publicly announced this during the hearing.
- I'll say it like a dreamer (smiles - author). We started our conversation with you saying that I am an idealist and a dreamer. It was a situational decision. But I do not consider it wrong.
- Will you continue to emphasize this?
- Yes. You have seen that at first, I said 500 thousand, and now I'm talking about two million. So I will not go back on my words.
Tetiana Bodnia, Censor.NET
Photo: Oleh Bohachuk, Censor.NET and from Kostiantyn Hloba's Facebook page
