Chervinskyi’s case: why do judges not want to see victims in court?

Author: Tetiana Bodnia

The case of SOF Colonel, ex-Intelligence Officer Roman Chervinskyi is once again at the center of public attention. After the materials were transferred to the Kirovohrad District Court, his detention was extended not during an open hearing that lasted three days in a row, but without the participation of his lawyers and behind closed doors, when the court’s working day was formally over.

After that, the lawyers publicly stated that they did not know his whereabouts, and one of them even suggested that he could have been kidnapped for transfer to the Russian Federation. And when it finally turned out that he was in the Kropyvnytskyi detention center and they filed an appeal, it became known during its consideration that Roman Chervinskyi, who had been behind bars for a year, had been appointed in absentia to the position of deputy commander of a military unit a month ago.

Censor.NET journalist found out what is happening in the case of the ex-intelligence officer.

As previously reported by Censor.NET, the case of the ex-intelligence officer, who is accused of abuse of power during the operation to hijack a Russian plane, which, according to the prosecution, led to the missile attack on Kanatove airfield, was at the epicenter of a scandal immediately after the pre-trial investigation was completed and transferred to the Kirovohrad District Court. During the preparatory hearing, Chervinskyi's lawyers and the ex-intelligence officer himself stated that the composition of the court was illegally determined as a result of manipulation and interference with the automatic case distribution system in order to determine specific judges and called the police to file a crime report. 

In addition to the lawyers, people who were in the courtroom that day also wrote statements and testified because they had come to Kropyvnytskyi to support the ex-intelligence officer. However, when we asked Kostiantyn Hloba what was the subsequent reaction to these statements by law enforcement officers, he said that there was still no response.

"We called the police and demanded that they examine witnesses, record the crime, enter information into the URPTI (Unified Register of Pre-Trial Investigations) and question the judges. The investigative team that arrived did not take any action other than examining people. And that was because of my rather systematic requests. At first, they did not want to do it. "As of now, no one has received an official response to this call about whether or not the information was entered into the Unified Register of Pre-trial Investigations, because I was not the only applicant," explains Kostiantyn Hloba. I also received no response. Although in my appeal I clearly expressed the requirement not only to enter the information into the URPTI but also to notify me of the results of the decision, indicating the official address of my place of work."

For the second time, Chervinskyi's wife had to call the police, because in the evening, after the judges had adjourned the hearing due to the air raid alert, Hloba's lawyer called the court secretary to find out whether the hearing would continue and was told that the judges were in the conference room. It was strange, because although the hearings lasted for three days in a row, the motion to extend the detention period was not considered, so it was unclear what the judges would decide next and where Chervinskyi was. She told this to the police officers who arrived at the scene. 

"The investigative team arrived, after a while they got into the courtroom, they were not immediately allowed in," the lawyer says. - "According to the police, they were informed that a court hearing was being held. And they stated the fact that they were not allowed to see Roman Chervinskyi at all. And they did not see him. Although we directly demanded that the investigative team make sure that a crime was being committed against Roman on the court premises. But the convoy did not allow them to see Roman, and they could neither see him nor obtain an explanation."

Only a few days later, the ex-intelligence officer's lawyers received the court ruling and found out where he was. They insist that the decision to extend Chervinskyi's detention was made illegally, and therefore filed a complaint with the appellate court. In particular, lawyer Viktor Vasyliuk explained to journalists that Article 615 of the CPC, to which the judges referred in their ruling, was adopted because martial law was in force in the country. According to him, if in wartime it is impossible to hold a preparatory court hearing and consider a motion to extend the detention of the accused, it is believed that such a preventive measure is automatically extended. "But, unfortunately, the Kirovohrad District Court did not hold a court hearing, as it stated in its decision because the lawyers did not appear. What does martial law come in, what does the impossibility of holding a court hearing come in? Moreover, it is nonsense that he did render a decision. What is the automatic extension if there is a decision? But when rendering the decision, he did not examine the evidence, did not listen to the opinion of the lawyers. That is, the right to defense was violated," Vasiliuk emphasized. "He did not even listen to Chervinskyi's opinion. Therefore, this is a completely illegal decision, it was made so hastily in order to simply extend the period of detention."

He emphasized that the preparatory hearing lasted three days. "There was enough time to consider any issue, but the court did not do so," the lawyer said. "They deceived the lawyers, said that a break was announced and in a closed court, together with the prosecutors, they made such a shameful decision.

Already during the hearing of the Kropyvnytskyi Court of Appeal, lawyer Andrii Yosypov stated that the preparatory hearing should be held with the mandatory participation of the victims, who were not present. "The secretary announced that the victims had been notified," the lawyer said in his speech. – At the same time, after reviewing the case file, we found that not all victims were notified of the hearing on the dates specified. Secondly, Your Honor, the victims allegedly submitted applications for consideration without their participation. But at the same time, they could not be taken into account by the court, because, firstly, they came without an electronic digital signature, the text of these statements is the same for all of them, which confirms the fact that only the prosecutor or investigator wrote and sent these statements. Some of them were not signed at all. That is, the victims should have been present at the time of the trial in the court of first instance on a mandatory basis. Why do we insist on the presence of the victims? According to the text of the criminal complaint and the text of the so-called reasonable suspicion, my client is charged with harsh consequences. Harsh consequences are in the form of bodily harm. The harsh consequences are in the form of alleged damage to property. So, dear court, the victims actually consider themselves victims, and they have received, as they themselves state, material and moral damage, which actually defines who the victims are, in criminal proceedings initiated on the fact of armed aggression under Article 110. They were interrogated in this criminal proceeding on the fact of armed aggression by the Russian Federation. Not on the fact of illegal actions or abuse of power by my client. The investigator requests interrogation protocols from that criminal proceeding, then tries to interrogate them independently in a new criminal proceeding. Each of them states that they did not suffer bodily harm as a result of my client's unlawful actions, that they did not suffer material or moral damage, which is a crucial condition for a victim, I repeat, from the actions of my client. By excluding, your honor, the victims from this criminal proceeding, we are "eliminating", I apologize for the jargon, the severity."  

He stressed that the defense has the right to ask the victims questions in court to find out whether they consider themselves victims of the actions of the Russian Federation or of Chervinskyi's actions.

"The investigator and the prosecutor insist that they consider themselves victims of my client's actions," he stressed, "I insist, moreover, I have attached evidence of this, as well as statements from those victims who write and claim that they do not consider themselves victims of my client's actions.

And if this is established in court, he said, the criminal complaint should be returned to the prosecutor's office.

He stated that since the issue of extending the period of detention would be raised during the appeal, the defence team wanted to hear the victims' position. In his opinion, this is extremely important.

He also added that one of the grounds for filing an appeal against the decision of the court of first instance was a violation by the panel of judges of the first instance of the procedure established by Articles 314-315. According to him, the hearing was held without any preparatory actions and without resolving the issues of the possibility of closing the criminal proceedings, the possibility of returning the criminal complaint, without establishing the need or possibility of changing the jurisdiction in this criminal proceeding.

His colleague, lawyer Hloba, petitioned the court to summon and interrogate as a witness Viktor Hanushchak, who was Chervinskyi's immediate commander at the time of the special operation and reported about it to Zaluzhnyi.

Speaking in court, Chervinskyi once again emphasized that he acted within his powers and in the interests of Ukraine, and he still calls the case against him politically driven.

The defendant stated that he had a motion "for the prosecutor to return the evidence that the lawyers had received". According to him, they were attached to the case file, which is still under investigation. He explained that in particular, it is a plan for the protection of a defense facility. "This is a key piece of evidence that someone is responsible for the safety of the military and how they should act accordingly," he said. He also reminded the court that he is accused of allegedly feeding information to the Russians about the concentration of equipment and military personnel at the airfield, but the second piece of evidence, which he also requests to be attached, says that the Russians conducted reconnaissance. "There are three stages of reconnaissance. They were all carried out by the Russians and this confirms that they collected information about the airfield on their own, I did not tell them about it," he said, addressing the judges.

The court session also mentioned one of the key witnesses, whose interrogation had been requested by the defense many times in other courts. It is about an SSU officer who, according to the defendant himself and his lawyers, was part of the joint group that conducted this special operation. This means that he represented the Security Service of Ukraine in it. It is important to note that Chervinskyi is accused of abuse of power and failure to coordinate his actions.

The prosecutor, in turn, stated that in his opinion, it is possible to consider the appeal in the same composition of persons who were present at the hearing. He emphasized that this appeal is not considered as a decision made during the preparatory court hearing. It is only a ruling made under Article 615 of the CPC.

He objected to the interrogation of witnesses and victims, calling it absurd, "which does not correlate with the Criminal Procedure Code of Ukraine". The court upheld the prosecutor's position, refusing to question witnesses and victims. Referring, as did the prosecution representative, to the fact that the circumstances mentioned by Chervinskyi and his lawyers had not been investigated by the court of first instance.

During further consideration, the judges granted the lawyers' request for admission to the case file, which referred to the evidence collected by the defense regarding Chervinskyi's innocence and the groundlessness of the suspicion and indictment.

Also, during the same meeting, it became known that Roman Chervinskyi was appointed to a new position in March - deputy commander of a military unit.

"We, as lawyers, were informed that in connection with the implementation of the Supreme Court's decision, which canceled the order to send him to a military unit in Donetsk region, Syrskyi has already issued a new order on 8 March this year appointing him deputy commander of the unit," Chervinskyi's lawyer Liudmyla Kusa told Censor.NET in more detail. She clarified that the received document did not specify which military unit it was about because it was a secret. "He has to come to the General Staff himself and clarify where he is supposed to go further."

She also clarified that Chervinskyi, having received the relevant document from the General Staff, should go directly to the military unit with it. There he should be accepted for the position with his personal file, etc. "Since he did not appear there, he has not yet been enrolled in the military unit," the lawyer explained.

Answering the question of whether the situation had become clarified with the special operation and Chervinskyi's role in it after the defense gained access to the pre-trial investigation materials, the lawyer said that evidence had only been added to show that he had not given any commands to anyone at the airfield. "The Air Force was in charge of all the activities at the airfield," she said. "Some of the servicemen had not even seen Roman's face. That is, the materials only confirmed what we have repeatedly said. That he was only doing his part, not the whole special operation. And even more so, he did not direct the actions of major generals, lieutenants, etc.

According to military experts, they were written in a hurry. Imagine this picture. On December 13, the prosecutor's office determines that the proceedings are under the jurisdiction of the SBI. On December 13, the same day, the SSU investigator brought a resolution on the commissioning of expert studies to the Kyiv Scientific Research Institute of Forensic Expertise. Since December 13, the case has been under the jurisdiction of the SBI. In parallel, the expert studies are being conducted. And on December 29, Deputy Prosecutor General Symonenko again transferred the proceedings to the SSU, because the SBI allegedly was not investigating it properly. And the experts complete the examination the next day. And the case is sent back to the SSU. In other words, part of the case file is in the possession of the experts, part of the case file is in the possession of the SSU, and part of the case file is in the possession of the SBI. And they say that the SBI is not investigating well. This is what they did to keep the case in the SSU.

And in this examination, which was done in two weeks, the experts analyzed the entire special operation, all the documents and wrote that Chervinsky had conducted everything incorrectly, Chervinskyi was guilty."

According to her, the defence has the opportunity to file complaints against the actions of the experts with the Ministry of Justice, stating that they have violated certain standards. It is also possible to conduct another examination. But whether this will be possible given that there are very few military experts in the country is unknown.

The next hearing of the Kropyvnytskyi Court of Appeal is scheduled for next week. Perhaps then we will hear more arguments from both sides.

Tetiana Bodnia, Censor.NET