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Direct and indirect pressure on the court, prosecution and victims for "more equal opportunities" before the law - «M&P» Legal group»

Direct and indirect pressure on the court, prosecution and victims for “more equal opportunities” before the law

In this article we want to analyze one extreme-resonant case “IL-76”, in which the court found the Ukrainian general guilty and sentenced him to 7 years in prison, while collecting from the Ministry of Defense UAH 0.5 million. damages in favor of each victim who lost 49 sons.

With the text of the sentence to General Nazarov VM You can read two links:
In the unified state register of court decisions, the verdict of March 27, 2017, case № 185/12161/15-k.

Also on the page of the lawyer – the representative of the victims V. Poghosyan you can read the sentence with all the names of officers, experts, general witnesses, etc.

The information explosion in this case was not about the essence of the evidence, not about the qualification or tactics of prosecution or defense, and not even because of the final essence of the case, but because of the reaction of top government officials who violated the principle of “balance of power”. , executive and judicial “and breaking” the mechanism of checks and balances “, gave a clear signal that they are dissatisfied with the conviction, directly pushing the future Board of Appeal, which will review the case, to the opposite conclusion.

We will not analyze in this article the essence of the accusation, the nature of official duties, the evidence collected, the correctness or incorrectness of this process as such. It is possible that the verdict is lawful from the procedural point of view, and it is possible – not (for such conclusions it is necessary to see the case materials and investigate them). The reasons for the information explosion caused by the public statements of public officials who disrespect the act of justice – a sentence “passed in the name of Ukraine” and which according to the constitution is no less valid than the law or any decisions of state executive bodies – deserve a detailed legal analysis.

The main purpose of the separation of powers – to avoid the absolute usurpation of power by any branch of government – is a preventive mechanism to prevent possible tyranny of the people, tyranny of the dictator or tyranny of the courts.

Immediately after the verdict, several loud statements were made about the need to set up military tribunals and the alleged “incompetence” of the sentencing court. Here are just a few examples:

  1. According to UNN, the Chief Military Prosecutor initiated the creation of military tribunals on the model of Israel. and so on … And where there is a death or a maximum sentence, the Minister of Defense has the right to mitigate the sentence. ”
    I would like to remind you that it is A. Mathios who heads the military prosecutor’s office, which supported the accusations. But no extraordinary ideas about the need to create tribunals, before sentencing Nazarov VM, publicly for the media, the chief military prosecutor did not express.
  2. The President of Ukraine was one of the first to launch a chain reaction (domino principle) of public criticism: That is why I plan to propose the restoration of special military courts in accordance with existing international practices. The actions of commanders in a combat situation should be evaluated by military specialists, military experts and military judges, not civilians..
  3. The Minister of Defense of Ukraine on his FB page – “The verdict in the case of General Nazarov should be as balanced as possible …. Now a dangerous precedent has been set when a court decision can dangerously affect the opinion of personnel … I support the resumption of special military courts in accordance with existing international experience. Military specialists, experts and judges should evaluate the actions of commanders in combat situations. “.
  4. Chief of the General Staff of the Armed Forces of Ukraine V. Muzhenko – “A dangerous precedent has been set, which could have fatal consequences for the state. The position of the military prosecutor’s office is interesting. It is intended only to punish or can also protect commanders.”

Directly or indirectly, the statements of high-ranking officials indicate (secretly order) three things:

  1. The court decided the case illegally without taking into account the military situation
  2. Such a court must be removed from the military authorities, creating a special. military court, which allegedly presumably will make favorable (acquittal) decisions for the executive and military authorities
  3. The court of first instance has made an illegal decision, so the defense minister, the chief of staff, the president and even the military prosecutor are very much looking forward to “correcting an unfortunate mistake” in the higher court.

Here are some clear facts, established circumstances and conclusions of the court:

  1. The state prosecution was supported by the military prosecutor’s office, which until recently insisted on the accusation and did not drop it. The prosecutor’s office was arranged by the so-called “civil” court. There was suspicion, an indictment, an indictment, all according to the classics of the genre.
  2. The so-called “civil court” sentences daily in cases of financial fraud, treason, abuse, serious crimes related to the IT sector and business accounting. And we do not create medical courts by considering the mistakes and negligence of doctors, although their activities are more specific than any military action.
  3. The verdict is based on military examinations and military documents. military testimony, military material evidence. Any case requires immersion in a specific area, from which the quality of the final decisions usually does not suffer, because the corpus delicti is or is not.
  4. The dead are 49 soldiers – privates and officers, whose “interests” and honor after death were represented by their relatives (over 60 people). The reaction of the victims can be fully felt from the press conference held in connection with the above public statements. The full video of the press conference is freely available on YouTube and you can watch it yourself, it’s really worth it.
  5. Excerpt from the verdict: “To implement the Plan, the Chief of Staff – First Deputy Chief of ATO PERSON_64 (General Nazarov) on June 13, 2014 at 10:15 sent a request to the First Deputy Chief of the General Staff of the Armed Forces of Ukraine to include additional forces and means of combating terrorism, subordinated to the ATO leadership in the Donetsk and Luhansk regions, the consolidated unit – companies with weapons, military equipment and other property, which on the same day to be transported by air from the airport of Dnepropetrovsk to the airport of Lugansk.

Thus PERSON_64, in connection with performance of official duties on the specified position, reliably knew that the Luhansk airfield is surrounded by enemy forces which regularly carry out its attacks, and also that the enemy is armed with portable anti-aircraft missile systems (hereinafter – MANPADS) and other means of destroying aircraft from the ground, which provides its air defense, and realized that the flight of aircraft to the specified aerodrome will be carried out, including over enemy territory, as the distance from the aerodrome m. Luhansk to the location of the nearest units of the Armed Forces of Ukraine and the IMF was more than 40 km.

Along with this …. Person 64 … in order to organize the implementation of this part of the Plan and overcome (breakthrough) air defense (air defense) of the enemy did not plan the use and did not organize the management of military units (units) of the Armed Forces of Ukraine and IMF , which are involved in the anti-terrorist operation and transferred to the direct subordination of the head of the anti-terrorist operation.

Moreover, on June 13, 2014 at 4:25 p.m., the ATO headquarters received operational information from the Anti-Terrorist Center Headquarters under the Security Service of Ukraine, included in Section II “Information on Separatists’ Plans and Intentions ”of the summary report on the operational situation in the ATO area 16:00 on June 13, 2014, that two groups of fighters went to the Luhansk airport, armed with MANPADS and intend to shoot down all planes at landing or takeoff.

Similar information was re-submitted to the ATO headquarters from the Anti-Terrorist Center Headquarters of the Security Service of Ukraine on June 13, 2014 at 8:05 p.m., which was included in Section II “Information on Separatists’ Plans and Intentions ” as of 8 pm on June 13, 2014.

These certificates with information about the preparation for a terrorist act near the airport Lugansk to 21 hours the same day provided personally PERSON_64 for their processing, responding to a terrorist threat and organizing the cessation of activities or neutralization of the above illegal armed groups (formations).

In addition, on June 13, 2014, the above information on the terrorist threat around the Luhansk airfield, according to the table of urgent reports, is included in paragraph 4 of the intelligence report of Sector “A”, which at 17 o’clock in the afternoon. № 186/0310 / okp sent to the anti-terrorist operation headquarters, where PERSON_64 was immediately provided directly.

Also, on June 13, 2014, officers of the Main Department of the Ministry of Internal Affairs of Ukraine in Luhansk Oblast established the fact that enemy groups were stationed near Luhansk airfield, armed with MANPADS, and the ATO headquarters was informed by telegram the same day.

The information that two groups of militants armed with MANPADS intend to shoot down all aircraft during landing or takeoff from Luhansk airfield directly indicated the preparation of this terrorist act and threatened the implementation of the ATO leader’s plan of June 11, 2014 regarding the movement of transport aircraft consolidated company to the above-mentioned aerodrome, the lives of the personnel of this unit and members of the aircraft crews, the preservation of weapons, military equipment and other property ”

Conclusions:

Previous articles in the blog have already analyzed the approach of the European Court of Human Rights to such statements of public authorities and their significance for the concept of “fair and impartial court”.

Thus, the ECtHR has repeatedly stated similar and similar findings: “The Court reiterates that the principle of the presumption of innocence is an aspect of the right to a fair trial. This principle not only prohibits premature expression by the court itself that a person , “accused of committing a crime”, is guilty, while it has not yet been proven in accordance with the law, but also applies to statements made by other government officials in ongoing criminal proceedings and which incite the public to think about the guilt of the suspect and determine in advance the assessment of the facts by the competent judicial authority (see the findings of the relevant case-law of the Court, for example, in Khuzhin and Others v. Russia, no. In this connection, the Court emphasized the importance of public officials choosing their words in publishing their statements before the trial. ”

The impartiality of the court is inevitably distorted by the pressure of statements by high-ranking officials who have the power to influence the appointment and dismissal of persons hearing the case.

Moreover, how should a public prosecutor feel – a prosecutor who supports the public prosecution in such a case. It is logical that he asks himself the question of rejecting the appeal, the accusation, the aggressiveness of the case as such. A separate issue is that the prosecutor has a head, who vertically depends largely on the Attorney General, who is directly dependent on the presidential administration.

How fair are such public statements against victims, who have the right to an impartial trial that should not be subject to pressure from the president and the defense minister.

However, it is also seen that the information explosion caused by the above public statements should have positive consequences, as it has led to an incredible scale of public discourse in society. And society, in turn, is a very clear indicator of the mood for public authorities and a vivid reminder of the existence of Art. 6 of the Constitution of Ukraine “State power in Ukraine is exercised on the basis of its division into legislative, executive and judicial.”, Which clearly shows that outside the competence and line of division, one branch of government should not and has no right to influence another.