"My testimony has not changed, and theirs are constantly changing". What became known in Chervinskyi’s case during appeal consideration

Author: Tetiana Bodnia

During the hearing of the Kropyvnytskyi Court of Appeal, Chervinskyi’s lawyers stated that they were not only appealing the ruling of the first instance court but also seeking the opening of criminal proceedings, as they believe that the composition of the court that issued this ruling was determined as a result of manipulations with the automatic case distribution system.

And since the SBI refused to enter such information into the Unified Register of Pre-trial Investigations, they will seek this through the courts. Meanwhile, in the court hearing, they tried to prove that the charges against their client were groundless and that the decision to extend the arrest was illegal. The prosecutor objected, stressing that there was sufficient evidence in the case file and that the judges had acted lawfully. 

WHAT THE LAWYERS PLEADED FOR

The hearing began with a motion by the ex-intelligence officer's lawyer to interrogate Chervinskyi's former commander, Viktor Hanushchak. "This is Roman Chervinskyi's immediate superior, who can confirm the fact that, in simple terms, this operation, of which Mr. Chervinskyi is accused, was agreed at the highest level, all orders were received, and relevant reports were made to the top management," said Kostiantyn Hloba. His colleague, lawyer Andrii Yosypov, supporting the motion, added that this witness would be able to confirm that this special operation was reported to Valerii Zaluzhnyi, who was the Commander-in-Chief of the Armed Forces of Ukraine at the time. He would also be able to confirm that the operation was initiated by the Security Service of Ukraine.

Chervinskiy also supported his lawyers, explaining that at the stage of serving him with suspicion, the interrogation of this witness was limited. "The materials substantiating the suspicion contained the interrogation, which is not true," he said. "He did not actually provide explanations but simply said that the operation was authorized and did not provide details. And this was used by the investigation to detain me on alleged suspicion. They hid other interrogations that were in the case file and did not provide them during the application of a measure of restraint before that. In general, the investigator avoided interrogating Hanushchak for a month, until Deputy Ariev wrote a request to the Prosecutor General. Only after that did the investigator interrogate him in full." 

Addressing the court, he said that his former commander had come to Kropyvnytskyi from Lviv to give testimony. But the court did not want to listen to him, agreeing with the prosecutor, who said that the circumstances that the defense was talking about and that the witness should report were beyond the scope of the appeal. He also recalled that at the previous hearing, the court had already denied the lawyers' similar motion and added that Chervinskyi's former commander was a witness in the criminal proceedings and should be interrogated as a witness directly during the consideration of the case on the merits. And on April 19, when the challenged ruling was issued, he was not present during the trial.

As for the merits of the appeal itself, at the stage of consideration of the motions, lawyer Yosypov asked the court to attach materials that, in his opinion, explain how Article 615 of the CPC should be applied, under which Chervinskyi's detention was extended. In particular, an explanatory note to the law that amended the CPC. According to him, such an article should be applied in cases where the judiciary cannot function properly due to the war. "We are not even talking about the administration of justice, we are talking about the impossibility of the court functioning as such," he explained. However, the court in Kropyvnytskyi is functioning and the city is not classified as a territory where hostilities have been or are ongoing. And the Ministry of Reintegration regularly updates the List of territorial communities located in the area of military (combat) operations or under temporary occupation or encirclement. The latest changes were approved in April 2024 and Kropyvnytskyi is not on the list.

"I consider the court ruling issued on April 19 this year to be illegal and one that significantly violates the rights of my client," lawyer Liudmyla Kusa said in court. According to her, this ruling should be canceled due to violations of the CPC, the conclusions set forth in it contain significant contradictions, the right to defense was grossly violated, and the decision itself was made by an unauthorized court. "Yes, in accordance with part 5 of Article 615, a preventive measure in the form of detention is indeed considered to be extended when it is impossible to hold a preparatory court hearing," she said, addressing the judges. "However, if we look at the text of the court decision that is being considered and appealed, we will see that, firstly, it was issued in a preparatory court hearing. The court of first instance states that with the participation of prosecutors Kobets, Havryshchuk, and the defendant Chervinskyi, certain issues were considered in the preparatory hearing. Among the issues considered, the accused notes that it is impossible to hold the court hearing in such a composition, and asks to postpone it. The prosecutor points out the impossibility of a preparatory court hearing and the need to apply the provisions of Article 615, part 5. That is, the court has already noted that all these actions took place in court."

She also emphasized that the hearing considered the prosecutor's motion and not the question of whether it was possible or impossible to automatically extend the preventive measure.

For those who did not follow the events in the Kirovohrad District Court, we would like to remind you that the hearing took place over three days. On the evening of April 19, the judges announced a break because there was an air raid alert, but did not say when the hearing would continue.

When the consideration of the appeal began last week, Kusa's lawyer insisted on watching the video recording, which shows how the hearing ended on April 19. The judges refused her request.

Therefore, she has now reiterated her motion and noted that the defense insisted on viewing the video of the trial court hearing because it confirms the illegality of the ruling and provides grounds for its cancellation. "According to the court record, which we believe to be completely fabricated, some actions allegedly took place, and according to the video recording of the court session, completely different ones," she emphasized. And then she commented by the minute on what exactly is on the video. She said that literally two minutes after the start of the hearing, when the prosecutor was reading the provisions of the CPC, the court adjourned the hearing, promising to inform when it would continue. And nothing was said about the court going to the deliberations room to make a decision. "Thus, according to the defense, the court did not go into the deliberations room at all. At the same time, according to the court's journal, the court did go into the deliberations room. But, if you, dear court, examine this courtroom record yourself, no one has left the deliberations room as of today."

She also clarified that a certificate drawn up by the court secretary was attached to the criminal proceedings, stating that when the court went into the conference room, there was an air raid alert, so the judges did not announce the court decision at all. Although they should have done so, as required by the CPC and the Convention for the Protection of Human Rights and Fundamental Freedoms. And, according to her, such a certificate itself contradicts the CPC. Kusa explained that everything should be recorded in the court's journal.

The lawyers told the judges how they tried to get into the court that evening after the air raid had ended, but the building was closed. And also why they believe that there were manipulations with the automated case distribution system. And they said they had called the police.

They also insisted that Chervinskyi should have been granted the right to defense. At the very least, they should have ensured the presence of a free legal aid lawyer, if his lawyers were not allowed to enter the court. But no one did this either.

In his turn, prosecutor Viktor Kobets, addressing the court, explained that on April 19, due to a significant number of air raid alerts, it was not possible to hold a hearing. Therefore, the measure of restraint was extended under Article 615, and he filed the motion earlier, on April 12.

He also believes that the composition of the court panel was determined legally, in accordance with the CPC.

WITNESSES CHANGE THEIR TESTIMONY

Chervinskyi has been behind bars for over a year. The Security Service of Ukraine filed charges against the former intelligence officer for committing a crime under Part 5 of Article 426-1 of the Criminal Code. This means "abuse of power or official authority by a military official under martial law".

Chervinskyi is accused of allegedly unauthorizedly attempting to implement an operation to lure a Russian pilot to Ukraine on a military aircraft. His actions allegedly led to the shelling of the Kanatove airfield.

He denies the charges and in court hearings at the pre-trial investigation stage, together with his lawyers, he repeatedly tried to convey to various judges that he worked as part of a working group, the operation was authorized at all levels, and was initiated by an SSU officer together with a civilian IT specialist. He claims that he did not go beyond his authority.

The lawyers also stated this time in the court of appeal that he did not commit a crime. In particular, lawyer Hloba, commenting on the accusation of unauthorized actions of the SOF colonel, drew the court's attention to the fact that the indictment states that Chervinskyi "unauthorizedly carried out a set of actions to carry out the relevant activities agreed upon in terms of the purpose and objectives". And then he explained that when the defense opened the investigation materials under Article 290 of the CPC, the lawyers saw many documents in the middle of these materials that contradicted this statement. In particular, he cited an extract from the interrogation report of the head of the SSU Main Directorate in Kyiv, which, according to him, states that around June 2022, the SSU received a letter from the Commander-in-Chief of the Armed Forces of Ukraine on the secondment of an SSU officer to the SOF to be involved in performing joint tasks. "This correlates with the statement of my colleague Andrii, who said that if we remove the SSU structures from this scheme, it really seems that Chervinskyi did it arbitrarily. And if the SSU appears in this scheme, then it is precisely the counterintelligence forces and means... it was done by the SSU. And there is no excess anymore."

He also partially quoted the testimony of the commander of the military unit where Chervinskyi served at the time, which states that at one of the meetings the intelligence officer said that he had been approached by an SSU operative. According to the lawyer, this also suggests that Chervinskyi did not conduct the operation on his own.

Further quoting this witness, he focused the court's attention on the fact that the commander of the Resistance Movement of the Special Operations Forces was aware of the operation, and he, in turn, reported to Zaluzhnyi.

He also repeated what the defense had stated earlier. That the ex-intelligence officer did not act independently, but was part of a working group and did not directly contact the Russian pilot.

Also, during his speech, the lawyer tried to draw the court's attention to the fact that from the testimony of witnesses, it can be concluded that Chervinskyi did not pass on data about the airfield to the Russians and that Kanatove was one of the three where the Russian plane was planned to be deployed. "If the plane had crossed the border of Ukraine, the airfield would have been identified after that," the defense lawyer said.

Supplementing the lawyers, Chervinskyi said that 23 witnesses and 17 victims had been interrogated in the case. "All of them are asked a clear question: whether the equipment was additionally concentrated at the airfield, and whether there were commands to concentrate. Each of these people is asked this question," he says. - "They don't just ask where you were and what you were doing. But whether there was a concentration and whether you were personally given a command. All 27 said they were not, there was no concentration. Seventeen victims say the same thing. There was none. And all of these people were either on duty, or at home after their duty, or at the airfield after their duty, resting. There was no command from Chervinskyi or his commander to concentrate or deploy anywhere else."

During the hearing, the intelligence officer also stated that the case contains discrepancies between the initial and repeated interrogations of the same witnesses regarding the circumstances of what happened during the operation and that they were under pressure.

"My testimony has not changed once since the beginning of the investigation," he emphasized. - "They were the same as they were and will be. And theirs are changing all the time."

Speaking after Chervinskyi and his defense counsels, the prosecutor emphasized that the circumstances voiced by the defense regarding the reasonability of the accusation were not the subject of this court hearing, and the materials that were attached could not be taken into account by the court when making a procedural decision. At the same time, he noted that he wanted to voice the prosecution's position on this issue as well. He also suggested that the defense interrogate the witnesses during the trial on the merits of the case in order to find out in court whether they are being pressured or not. He also responded to the statement about the working group. "During the year of the pre-trial investigation, the defense has not provided a single document that would refute or confirm the existence of any working group," the prosecutor said, adding that in his opinion, the investigation had collected sufficient evidence in this criminal proceeding and also cited the testimony of several witnesses on which the prosecution is based.

By the court's decision, Chervinskyi remained in custody. The next hearing in the court of first instance is scheduled for the end of May.

Tetiana Bodnia, Censor.NET