The law on sentencing in absentia is ineffective, according to prominent lawyers and Prosecutor General Vitaly Yarema. It contradicts the national Constitution and the laws of leading countries. This is because "their" laws are written to protect, while ours are written to extort.
Read more about him in Vitaly Yarema's article: "Honest Cop" and Sergei Dumchev's Godfather
Accepted "for show"
Some may find the Prosecutor General's recent statements illogical, while others may find them entirely inappropriate. Judge for yourself: on August 2, Vitaliy Yarema, through Ukrayinska Pravda, convinced the public of the inevitability of punishment for the fugitives "Yanukovych and Co." This inevitability, he claimed, stemmed from the imminent adoption of a law on sentencing in absentia. The newspaper also reported that the Prosecutor General's Office was working diligently on the provisions of a bill designed to confiscate the property of fugitive politicians.
The "results" of this work became apparent almost immediately—just a couple of weeks after the law came into effect. As a reminder, it was painfully conceived by the Verkhovna Rada in late October and passed on the fourth try. And already on November 12, at a Prosecutor General's Office advisory council, the Prosecutor General called it "impractical."
On November 21, he went “further” and declared that the law was imperfect because it was passed in haste:
"The law was passed hastily and applies only to individuals located outside of Ukraine. And if any defendant provides documentary evidence that they are in Crimea, which is de jure Ukrainian territory, we will not be able to try them under this law," Yarema said, slightly ruefully, in an interview with Focus.
To add credibility, he also sang an old song about the stolen funds of former Prime Minister Lazarenko, which he also plans to recover.
Interestingly, the Prosecutor General's tone was somewhat different on November 12. He stated then that to enforce the law, "the precise location of the person under suspicion must be indicated. And such information can only be provided by the Russian Prosecutor's Office, which is not providing it."
But let's briefly return to Yarema's mention of Crimea. Either the Prosecutor General or Justice Minister Pavlo Petrenko ( read more about him in the article "Pavlo Petrenko: The "Pocket" Boy of the Yatsenyuk "Family ") got something wrong. During a briefing on August 23, the minister promised that the new law would also affect negligent Crimean officials: "The law on conviction in absentia will apply not only to those hiding from the law in other countries, but also to the self-proclaimed authorities of Crimea." The question arises: why then, "under Yarema," Yanukovych, if he visits the peninsula, will evade the law, while "under the minister," Crimeans will also be punished?
And the issue here, apparently, is this. This is nothing more than Yarema's banal suppression of the ugly truth: that this law is merely a sham and contradicts both the Constitution and international law. The situation is somewhat similar to the lustration law, which lustrated prosecutors are successfully challenging in court, a situation closely monitored by Prokurorskaya Pravda.
But while the latter works, albeit poorly, the former is in dire straits. Today, to finally bring the immature law to maturity, the Prosecutor General is proposing a series of dubious amendments. The most the Prosecutor General's Office hopes to achieve with these amendments is to create the appearance of legality in the process of expropriating property from undesirables in their absence. Given the current state of the law enforcement and judicial systems, as experts have already noted, the law will lead to "the wholesale fabrication of criminal cases against people absent from Ukraine for the purpose of confiscating their property."
As Prokurorskaya Pravda previously reported, the idea of introducing a similar provision into the Criminal Code and the Criminal Procedure Code was briefly mulled by former Supreme Court Chairman Vasily Maliarenko. He planned to use "in absentia" to expedite the consideration of "long-running cases."
But he encountered serious opponents in the form of Sergei Golovaty, Stepan Gavrish, and Vasily Onopenko, who believed that everyone's constitutional right to a defense is inviolable, and that the defendant's mandatory participation in the court hearing is an important guarantee of his rights and the proper administration of justice.
For example, according to Golovaty, in this case, not only are the rights of the individual (the accused or suspect) violated, but also the very principle of competitiveness in the courts, reducing their vigor. After all, in such cases, only the formal elements of legal proceedings are observed, plus everyone has a free hand: the judge can do whatever they please, and the prosecutor doesn't have to bother searching for convincing evidence. It's also easier for lawyers in such cases, as they understand perfectly well that the court can easily and casually ignore the defense's arguments.
Overseas will not help
If a foreigner becomes Ukraine's new Prosecutor General, thanks to Nayyem and Co., the new law is unlikely to please them either. Especially if it's, say, an American lawyer. After all, the laws of the world's leading countries, particularly Ukraine's current main ally, the United States, protect the rights of those in absentia.
The right of a defendant in a criminal case to participate in his or her own trial is universally recognized as a fundamental right and is enshrined in the United States Constitution. This is stated in the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fifth and Fourteenth Amendments. This right may be waived, and a waiver may be enforced in absentia, only if the defendant chooses not to attend the trial.
A U.S. court will not commence a trial without the defendant's presence unless the defendant has waived this right. The court will not allow proceedings against a defendant to proceed in the defendant's absence unless the defendant is present at the beginning of the trial. The U.S. Supreme Court decided this issue based on the defendant's federal criminal procedural rights.
The Supreme Court, in its opinion, emphasized that if the accused was not present at the trial, this must be the defendant's waiver, and the best defense against this is to rely on a strict interpretation of the federal rules of criminal procedure, which, at a minimum, require the presence of the accused at the initial stage of the trial.
As for EU countries, full-fledged trials in absentia are permitted in some countries, but only as a legal sanction to deter flight. When conducting such trials, European jurisdictions prioritize protecting the rights of the accused. Courts vigilantly ensure that the rights of the accused are not curtailed by biased punitive measures. All civil rights of the accused must be fully preserved, without exception.
The UN Human Rights Committee does not consider trials in absentia unacceptable unless the accused voluntarily refuses to exercise their right to be present at the trial. It also believes that countries should use trials in absentia only in cases where defendants have been given adequate and timely notice and have received a corresponding request to appear.
Here, they don’t even announce suspicions...
"Loop" further
This is Yarema's only way out of the situation surrounding the law on in absentia convictions. And he must continue to "hide and seek" until parliament refuses to accept the Prosecutor General's Office's latest amendments.
Then the Prosecutor General will throw up his hands with a clear conscience and say: “You see, I did everything I could.”
"The question arises: why was this rather controversial law passed, citing the need to ensure accountability for officials who fled, if the Prosecutor General's Office, at whose request it was passed, believes it isn't being implemented in practice?" asked Andriy Grebenyuk, head of the Kyiv branch of the Ukrainian Bar Association.
The answer to the renowned lawyer's question, in our opinion, lies not in the text of the law, but simply in these few media reports:
“As Ukrainian President Petro Poroshenko stated, this law makes it possible to prosecute the fourth president of Ukraine, Viktor Yanukovych, in absentia”;
"As stated by the head of the Security Service of Ukraine (SBU), Valentyn Nalyvaichenko, this law will allow the return of assets frozen, seized, and stolen by the country's former leadership to the state budget";
"Interior Minister Arsen Avakov emphasizes that the entry into force of the law on in absentia convictions will allow for the investigation of a number of criminal cases to be brought to a logical conclusion, particularly against high-ranking Russian officials, as well as those financing militants in eastern Ukraine."
Experts? Pragmatic realists, or populists?
Hypothetically, it's certainly possible for someone to suffer from Yarema's amendments one day. However, it's unlikely that it will be the lawyers themselves, like Andriy Portnov, or the Yanukovych & Co. team, who certainly have the resources to hire good lawyers.
Portnov, incidentally, has already ridiculed the GPU's efforts by submitting a statement to Yarema on October 23. In it, as you probably recall, the former politician himself requested to be prosecuted under the law on conviction in absentia.
But will it be easy for a Ukrainian migrant worker or businessman if the prosecutor's office decides to "squeeze" some of his property in his absence?
In this regard, Prosecutor's Truth has several questions for the Prosecutor General's Office:
— Is foreign legislation and implementation experience studied before lobbying for new laws? Or is the "new" approach—all hopes resting on new foreigners taking the reins of power?
— What other "Yarema amendments" should the Ukrainian people expect from the Prosecutor General, and will they be as "implementable"?
— Isn't Vitaly Yarema tired of serving as a lightning rod for his "senior comrade" and aiding the business squabbles between the "old" and "new" authorities?
Prosecutor's Truth
ON THE TOPIC: Vitaly Yarema. "Honest Cop" and Sergei Dumchev's Godfather
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