Delaying tactics? SAPO should draw the court's attention to Kuzminykh's defense's abuse

The High Anti-Corruption Court (HACC) will continue hearing the case on Monday against Serhiy Kuzminykh, a People's Deputy accused of bribery and chairman of the subcommittee on pharmacy and pharmaceutical activities of the Verkhovna Rada committee on national health. The previous session was partial, with the court only hearing the prosecution, as the MP's lawyer, Volodymyr Krasovskyi, ignored it. The President of the All-Ukrainian Association of Retired Judges, Denys Neviadomskyi, explained in a comment to UNN that the defense can delay the trial in several ways, including the non-appearance of the lawyer. 

Delaying the process by the defense, for example, by a lawyer, can be done in several ways, including non-appearance, filing motions to postpone the hearing, or calling additional witnesses. It is also important to draw the court's attention to the interpretation of these actions as abuse of procedural rights, which may lead to delays in the consideration of the case.

It is worth noting that at the last hearing, the court continued to examine the written evidence in the Kuzminykh case. However, due to the non-appearance of the defense lawyer, it was unable to proceed to the examination of material evidence. The presiding judge emphasized that the lawyer once again preferred another criminal proceeding to the trial of the MP. 

The MP himself has repeatedly missed court hearings. Thus, the HACC in response to a request from UNN reported that Serhiy Kuzminykh, accused of bribery, systematically fails to appear in court. Out of 86 court hearings scheduled in his case, 22 hearings were disrupted due to the non-appearance of the MP himself, which is almost every fourth. Under such circumstances, the question arises - is the accused and the defense abusing their rights? 

According to Neviadomskyi, the legislator omitted the consolidation of the institute of prohibition of abuse of the rights of the parties in the Criminal Procedure Code.

"It is not known exactly what caused the above-mentioned situation, but I believe that it is definitely not related to the absence of abuse of procedural rights by participants in criminal proceedings in practice, which, among other things, is seen in more than one thousand court decisions in criminal cases in the period from December 15, 2017, in which the concept of "abuse of procedural rights" is found," the retired judge added.

Neviadomskyi noted that in the legal opinion of the Criminal Cassation Court of the Supreme Court, expressed in one of the rulings in 2018, the court stated that although the Criminal Procedure Code of Ukraine does not provide for a general provision on the prohibition of abuse of procedural rights, the prohibition of abuse is a general legal principle and applies to all branches of law.

"The above-mentioned legal position of the Criminal Cassation Court of the Supreme Court, from my point of view, is of fundamental importance, because, in the absence of закреплення in the norms of positive law (the Criminal Procedure Code of Ukraine) of the principle of prohibition of abuse of procedural rights by participants in criminal proceedings, the court actually extrapolated the effect of such a principle, as a general legal principle (obviously, natural law), to criminal proceedings in Ukraine. In the case of unfounded non-appearances at the hearing, the prosecution may apply to the disciplinary authorities of the bar," Neviadomskyi explained.

That is, according to the expert, both the judge and the prosecution should pay attention to the abuse by the defense. In the case of Kuzminykh, this is a systematic ignoring of court hearings by both the lawyer and the accused.

We remind you

Earlier, UNN wrote that Kuzminykh had ignored the hearing of the High Anti-Corruption Court several times in a row under the pretext of a business trip to Moldova to strengthen inter-parliamentary cooperation. As explained to UNN in the Specialized Anti-Corruption Prosecutor's Office, the MP was not obliged to hand over his foreign passports and notify the prosecution of his departure abroad. At the same time, the MP, as the accused, is obliged to attend all court hearings, but neglects this obligation.

Under such circumstances, according to the former Deputy Prosecutor General, lawyer Oleksiy Bahanets, the prosecution should ask the court to change Kuzminykh's preventive measure to detention due to his failure to fulfill his procedural obligations.

Let's add

People's Deputy Serhiy Kuzminykh was exposed "red-handed" while receiving an illegal benefit of 558 thousand hryvnias. According to the investigation, he received funds for assisting in the signing of contracts between private companies and one of the hospitals in the Zhytomyr region for the supply of medical equipment. 

At the end of January 2022, NABU recorded the transfer of money and published a video about it. In it, a person with a voice similar to Kuzminykh's promises his assistance and adds that he can resolve issues with all medical institutions in the region. 

On January 31, 2022, the then Prosecutor General Iryna Venediktova signed a suspicion notice to him. 

Serhiy Kuzminykh was not detained due to " депутатський імунітет", but he ignored interrogations, which is why he was put on the wanted list. After several days of "hiding", the MP was finally detained to choose a preventive measure.

In May 2022, Kuzminykh was chosen a preventive measure in the form of bail in the amount of 49 thousand 600 hryvnias. Of course, the bail was paid for the people's choice.

In September 2022, the indictment in the case against Kuzminykh was sent to the HACC for consideration on the merits. The stage of evidence examination is currently ongoing. During this time, the MP has repeatedly ignored court hearings.