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11.11.2020 | Yevgeniy Zakharov
Politics and human rights

Opinion on the political motives of criminal persecution and violation of human rights in the case of Sergiy Pashinsky

   

Background

Since 2006 Sergiy Pashinsky has held governing positions in “Batkivshchyna” party. In 2011 he became the Deputy Head of the party and the central headquarters of AUU “Batkivshchyna”. After the arrest of Yuliya Tymoshenko in 2011 he actively participated in the court hearings and organization of political measures in her support. Pashinsky actively worked in the Committee for Resistance to Dictatorship which was created on August 5, 2011 by the political parties in order to coordinate the opposition activities and prevent the political repressions in Ukraine[1]. He passed for the Verkhovna Rada of Ukraine for the third time in a row in the parliamentary elections in Ukraine in 2012, as a part of AUU “Batkivshchyna”. Since December 2012 he was elected the Deputy Head of “Batkivshchyna” faction. In 2012-2013 with O. Turchynov, A. Parubiy, V. Klychko, A. Yatsenyuk, O. Tyagnybok and other opposition politicians he became one of the most radical opponents to the regime of Victor Yanukovich[2]. He has organized measures against political persecution of Tymoshenko who was incarcerated in Kachanivska penal institution in Kharkiv[3]: hundreds of her supporters and like-minded people gathered in Kharkiv in solidarity with the former prime minister. Among the people’s deputies was the leader of the faction, Arseniy Yatsenyuk, as well as Sergiy Vlasenko, Andriy Kozhemyakin, Sergiy Pashinsky, Mykola Knyazhitsky and others[4]; more than 20 deputies of Verkhovna Rada arrived to Kharkiv, among them were Sergiy Pashinsky, Andriy Kozhemyakin, Mykola Knyazhitsky and Sergiy Sas[5]. Sergiy Pashinsky focused his activities on release of Yuliya Tymoshenko and protecting her from political persecution[6]. He spoke about the impossibility of signing the Association Agreement with EU for a country that has political persecution[7]. Concerning the decision of the appellate court in the case of Yuliya Tymoshenko Sergiy Pashinsky stated: “The decision of Kyiv Apellate Court in the case of Yuliya Tymoshenko, upholding the unlawful verdict of Pecherskiy Court, shows that Yanukovych regime fully destroyed justice in Ukraine. From now on even those miserable remnants of democracy in Ukraine that optimists still dared to talk about, are gone”[8]. He did not shy away from criticizing the regime and giving harsh statements: “For me defeating Yanukovych is the question of life and death”[9].

Sergiy Pashinsky (photo: ukrinform.ua)


n summer 2011 the human rights activists created Civil Committee for Protection from Criminal Persecution in Ukraine[10]. The members of the Committee: Zynoviy Antonyuk, Arkadiy Bushchenko, Yevgen Zakharov, Yosiph Zisels, Lyudmyla Klochko, Mykola Kozyrev, Igor Kolyushko, Kateryna Levchenko, Myroslav Marynovych, Vasyl Ovsiyenko, Oleksandr Pavlichenko, Iryna Rapp, Yevgen Sverstyuk, Volodymyr Yavorsky – well-known human rights activists, former dissidents and prisoners of conscience – stated about the political persecution in Ukraine. Later, the violations of human rights for political reasons were confirmed by the European Court of Human Rights which indicated the presence of the violation of Article 18 of the European Convention on Human Rights in the cases “Tymoshenko v. Ukraine”[11] and “Lutsenko v. Ukraine”[12].

Between November 2013 and February 2014 Sergiy Pashinsky was the Deputy Head of the Headquarters of the National Resistance that coordinated the protest actions on Maidan and in the entire country. He was one of the key “managers of the revolution” that supported the material and technical, financial and organizational provision of the Revolution of Dignity. According to the ex-Head of the SSU, V. Nalyvaichenko, S. Pashinsky’s name was among the “orientations” for the first-hand destruction in event of a decision to completely clean up the Maidan from the protesters[13]. According to the video materials, he was one of the few people’s deputies who did not leave Maidan on the night between February 18 and 19, as well as on the morning of February 20, 2014, when the complete clearing of the tent camp was expected and several dozens of people already died[14].

For five years Sergiy Pashinsky was the deputy Head of the “Narodny Front” faction that won the election in 2014[15]. In 2014 he was elected the Head of the Security and Defense Committee of the Verkhovna Rada of Ukraine[16]. 240 bills by Pashinsky were submitted for consideration to Verkhovna Rada during the cadence [17], 20 of them entered into force[18].

Circumstances of the case

On December 31, 2016 on 05:10 pm there was a verbal conflict between the deputy of Ukraine, Sergiy Pashinsky, and a citizen, Vyacheslav Khimikus, who were on “Kyiv-Odesa” highway in the area of Khlepcha village in Vasylkivskiy district of Kyiv region, on the topic of location of a vehicle “Volkswagen LT 31” and degrading insults of Pashinsky and his wife by Khimikus. During that conflict Vyacheslav Khimikus began to threaten Pashinsky with repercussions, while Pashinskly, in his turn, took his registered pistol and fired a warning shot into the air. After that Khimikus approached Pashinsky while holding an empty glass bottle of low-alcohol beverage and struck him on the head with it, and began threatening him with the broken bottle. Then Pashinsky, protecting himself from the unlawful actions of Khimikus, got up from the asphalt and fired his pistol at the upper left leg of Himikus, as a result of which Himikus received bodily injuries in the form of a gunshot fracture of the femur of the left leg. Immediately after that Sergiy Pashinsky asked his wife to call an ambulance and police, while he bandaged the victim’s wounded leg with his belt. At the same day Pashinsky went to the police with the statement about a crime. The investigation was initiated on the fact of hooliganism by Himikus.

On February 9, 2017 the investigation was initiated on the fact of infliction of bodily injuries on Vyacheslav Himikus by Pashinsky, based on the decision of the investigating judge of Pechersky District Court of Kyiv city.

Between 31.12.2016 and 02.01.2017 the investigation in the criminal proceedings was carried out by the investigators of Vasilkivskiy district police department. Despite the fact that the criminal proceedings were not difficult, on 03.01.2017 it was transferred to the Investigation Department of the Kyiv Region Prosecutor’s Office, and on 06.02.2017 – to the Main Investigation Department of the Prosecutor General’s Office of Ukraine to continue the investigation. The inefficiency of the investigation was indicated as the cause of the transfer, without any particular circumstances based on which such conclusion has been made, or the responsible persons.

On July 18, 2017 the ruling by a prosecutor from Prosecutor General’s Office of Ukraine joined both sets criminal proceedings in one. On July 26, 2017 after the results of the investigation the criminal proceedings against Pashinsky and Himikus were closed because of the lack of constituent elements of a crime.

On December 13, 2017, an investigative judge of Pechersky District Court of Kyiv quashed the ruling about the closure of the criminal proceedings, after the complaint by Himikus. The cause were the mutually exclusive conclusions of the pre-trial investigation on the lack of unlawful conduct of Himikus at the same time with the presence of conditions for the necessary defense of Pashinsky, and the violations of procedural rights of Himikus as the victim. The case was remitted for the continuation of pre-trial investigation.

On January 9, 2018, the judge ruled to close the materials concerning Himikus under part 1 of Art.. 173 of CUoAO. The court stated that that the actions of Himikus bear the signs of the criminal offence under Art. 296 of the Criminal Code of Ukraine (hooliganism).

On March 12, 2018 it was ruled on the refusal to recognize Himikus as a victim, as the investigation did not establish the infliction of harm (physical, moral, material) to be a criminal offence. On May 17, 2018 the ruling by the investigating judge of Pecherskiy district court of Kyiv refused to grant the complaint of Himikus on the refusal to recognize him as a victim.

The course of investigation in the proceedings against Vyacheslav Himikus

On April 24, 2018 the ruling by the procedural head prosecutor of the Prosecutor General’s Office of Ukraine separated the materials from the criminal proceedings No. 12016110140003023 into a separate set of proceedings after the application of Pashinsky on the fact of hooliganism by Himikus under part 2 of Art. 296 of CC of Ukraine. On November 14, 2018 Himikus was notified of the suspicion under pt. 1 of Art. 296 of the CC of Ukraine (hooliganism)within the separate criminal proceedings. On August 6, 2019 Himikus was notified of the new suspicion under pt. 1 of Art. 296 of the CC of Ukraine and additional pt. 1 of Art. 289 of the CC of Ukraine. On November 1, 2019 the ruling of a prosecutor from the Prosecutor General’s Office closed the criminal proceedings concerning Vyacheslav Himikus for the lack of constituent elements of a crime in his actions.

The course of the investigation in the proceedings against Sergiy Pashinsky

On February 7, 2019 the ruling of the deputy of the Prosecutor General changed the group of prosecutors in the criminal proceedings against Pashinsky. The seeming “particular complexity of the proceedings and a wide scale of investigative (search) activities to be performed to obtain the evidence” were indicated as the cause for such action. The group consisted of 14 prosecutors of the Prosecutor General’s Office of Ukraine. On October 31, 2019 the ruling of the Prosecutor General changed the group of prosecutors in the criminal proceedings against Pashinsky. The reasons for such actions were indicated as: “the actuality of the criminal proceedings and public resonance”, “the provision of the full, comprehensive and impartial study of all circumstances of a criminal offence”, “the need to conduct a significant number of investigative (search) and procedural actions to obtain the evidence”. The group was enlarged to include 21 prosecutors from the Prosecutor General’s Office of Ukraine. The Prosecutor General was designated the head of the group. On January 13, 2020 the ruling of the Prosecutor General changed the group of the prosecutors in the criminal proceedings against Pashinsky. The reasons for that were indicated as: “the complexity of proceedings, a wide scale of investigative and procedural actions for the provision of the proper exercising of the powers of the prosecutor during the pre-trial investigation and the trial, taking into account the creation of the Prosecutor General’s Office”. The group was reduced to 13 prosecutors from the Prosecutor General’s Office. During the change of the group of the prosecutors, against the demands of pt. 2 of Art. 37 of CCP, the participation of the prosecutors was not provided since the beginning of the criminal proceedings and until their termination. The powers of the prosecutors in those proceedings were transferred to other persons without the proper reasons, as demanded by pt. 3 of Article 37 of CCP. In the case with one suspect, regarding one episode of infliction of bodily injuries in a state of a necessary defense, during a domestic quarrel the procedural management was carried out by the groups of prosecutors from the Prosecutor General’s Office ranging between 13 and 21 persons headed by the Prosecutor General.

On March 18, 2019 after the results of the investigation the criminal proceedings concerning Pashinsky were terminated because of the lack of constituent elements of a crime. The investigation established that Pashinsky acted in the state of the necessary defense. But on September 11, 2019 the ruling to close the criminal proceedings against Pashinsky was quashed by the ruling of the deputy Prosecutor General. The Deputy Prosecutor General indicated that during the closing of the criminal proceedings the mandatory signs of the necessary defense were not established. On October 4, 2019 Pashinsky was notified of suspicion of causing intentional grievous bodily harm which posed risk for life at the moment of infliction, provided by Art. 121 pt. 1 of the CC. In general, 12 investigative actions were conducted for the period of pre-trial investigation with Pashinsky’s participation.

Detention of Sergiy Pashinsky. The application of a preventive measure

On October 7, 2019 the ruling of Pecherskiy district court of Kyiv applied a preventive measure to Pashinsky in the form of detention until December 4, 2019. Referring to the materials provided by the prosecutor, the investigating judge indicated the validity of the suspicion against Pashinsky. At the same time the judge did not study the evidence of the witnesses directly, and only referred to the minutes of their questioning. The judge also established the presence of a risk of hiding from the bodies of pre-trial investigation and court, referring to the seriousness of a possible punishment. The status of a former people’s deputy of Ukraine, former position of the head of a VRU Committee, membership in the Military Council of “Narodny Front” were interpreted by the judge as ”the presence of close social ties with the heads of the state authorities and law-enforcement bodies”, which Pashinsky could use with the aim of avoiding the criminal responsibility. The judge also referred to the multiple instances of crossing of the state border by Pashinsky. Furthermore, in the justification of the need of Pasninsky’s detention the judge indicated that Pashinsky was suspected of a serious crime against life and health of a person. Given that at the time of commission of the criminal offence Pashinsky held the position of the head of a VRU Committee, such conduct was clearly unacceptable for the person of such rank who had a number of awards and distinctions. It also “created a negative impression of disorder and impunity in the system of state authorities in the eyes of the public“. The judge did not consider the possibility of application of a more lenient preventive measure.

On October 11, 2019 Pashinsky’s defenders filed an appeal against the ruling of Pecherskiy district court of Kyiv city concerning the application of a preventive measure. In the appeal the defenders pointed that:

  • The investigator violated the rules of the territorial jurisdiction during the filing of the relevant petition, and the investigating judge did not have the authorization to examine such petition
  • The investigating judge did not study any of the documents added to the investigator’s petition
  • In the justification of the suspicion the investigating judge referred to the documents that were not added to the investigator’s petition and were not in the court’s possession at all
  • Pashinsky voluntarily appeared for the numerous investigative actions, he did not hide from the investigation before the closure of the criminal proceedings or after their re-opening
  • The investigating judge on his own accord established the presence of the risk of use of social ties with the aim of avoiding the responsibility, which was not stated by the prosecution
  • Pashinsky’s positive characteristics in the form of responsible positions, awards and distinctions were used by the judge as the reasons for the need to hold Pashinsky in custody.

On October 18, 2019 the appeal of Pashinsky’s defenders was not granted by the ruling of Kyiv Appellate Court. Upholding the reasons of the investigating judge, the Appellate court again referred to the seriousness of a possible punishment. At the same time the Court did not provide any actual data which would suggest the presence of risks of obstruction of criminal proceedings. Moreover, referring to the case-law of the European Court of Human Rights (without indicating any particular decision) the appellate court states that “the decision of the court must ensure not only the rights of a suspect, but also the high standards of protection of civil rights and interests, which demands a greater strictness from the court in assessing the violations of civil values”. It is apparent that the appellate court erroneously interprets the position of the European Court in the issue of observing the right to freedom. The submissions of Sergiy Pashinsky and his defenders, provided in the appeal, were left without attention by the court.

On November 29, 2019 the ruling of Pecherskiy district court of Kyiv city extended Pashinsky’s preventive measure in the form of detention until January 29, 2020. Referring to the minutes of questioning of the witnesses, without questioning them during the trial суддя the judge established the validity of suspicion against Pashinsky. The investigating judge also referred to the need for conducting a great complex of procedural actions the need for which the prosecutor proved during the court hearing. However, the judge did not point out which particular actions should be conducted by the prosecutor and which circumstances prevented the prosecution from conducting them before the expiration of the term of detention. Without the reference to particular facts and proofs the judge established the presence of all risks provided by Article 177 of CCP, even those which were not established during the selection of a preventive measure. The known politicians expressed the wish to file a petition to the court to transfer the applicant to the bail, in particular, those were: people’s deputies of Ukraine of VIII convocation: M. Bondar, S. Vysotsky, O. Masorina, O. Sochka, A. Teteruk, M. Velychkovych (also a former deputy of the Ministry of Internal Affairs of Ukraine), V. Syumar (also a former deputy of the secretary of the National Security and Defense Council of Ukraine, deputy head of the “Narodny Front” faction), O. Turchynov (also the secretary of the National Security and Defense Council of Ukraine, the Head of VRU, Acting President of Ukraine, First Deputy Prime Minister of Ukraine, the Head of the Security Service of Ukraine). Without any reasoning the guarantors were denied their applications to take the applicant on bail. The court did not consider the possibility of application of a more lenient preventive measure.

On December 3, 2019 Pashinsky’s defenders filed an appeal. The lawyers noted that the investigating judge again violated the rules of the territorial jurisdiction, and the judge did not have the right to examine the relevant petition of the investigator. The defenders also pointed the following violations:

  • The judge left without consideration the submissions of the defenders concerning the unjustified suspicion and did not assess the evidence provided by the defenders;
  • The risks stated by the investigator are not confirmed by the actual data;
  • The judge left without consideration the proofs of Pashinsky’s due procedural conduct, confirmed by the minutes compiled with his participation;
  • Without reference to any proofs the judge established the presence of all five risks provided by CCP of Ukraine. Although during the use of the preventive measure the investigating judge only established two risks.

On December 18, 2019 the ruling of Kyiv Appellate Court partially granted Pashinsky’s appeal. The court refused to extend Pashinsky’s detention and applied to him the round-the-clock house arrest. The appellate court established the lack of a proper reasoning behind the risks of obstruction of the criminal proceedings. The appellate court took into account the fact that the case file materials lacked the data that would indicate that on freedom Pashinsky hid from the pre-trial investigation and court bodies, obstructed the criminal proceedings, committed other criminal offences, in particular, exercised unlawful influence on the witnesses or the victim in the criminal proceedings. At the same time the court did not provide any actual data which would confirm the need for the application of house arrest to Sergiy Pashinsky.

On January 28, 2020 the ruling of the investigating judge extended Pashinsky’s preventive measure in the form of round-the-clock house arrest until March 27, 2020. The investigating judge justified his decision by the seriousness of the criminal offence that Pashinsky is suspected of committing. Without indicating the particular circumstances of the case, without referring to any proofs, the court in general phrases stated that the prosecutor proved the existence of the risk of Pashinsky’s absconding and the impossibility of application of a more lenient preventive measure. On January 31, 2020 Pashinsky’s defenders filed an appeal against the ruling of the investigating judge on the extension of the preventive measure, which was dismissed by the appellate court.

The presence of political motivation of persecution

The persecution of a person has political motivation if the actions of the state bodies and officials are caused: а) by illegitimate considerations of social and political nature; or b) by the actions of the persecuted person for the protection of rights, freedoms and lawful interests of the citizens[19].

We propose to consider a political prisoner as any prisoner in criminal or administrative prosecution in which a significant and reliably defined role is played by the political motives of the government, and only such prisoner[20]. At the same time it is unimportant whether it was political reasons that prompted the action which is incriminated as a crime or offence; only the presence of the political interest of the government in the result of the case is significant. Since the extrajudicial assessments and judgments are in principle inadmissible in the field of law enforcement, the political motivation in the judiciary may entail the procedural and material consequences, such as:

  • The elements of falsification in the accusation;
  • Unreasonably severe preventive measures or punishments;
  • Unjust sentences or decisions on administrative offences;
  • Court bias in assessing the probative value of the submissions of the defense and prosecution;
  • Various restrictions on the possibility of defending oneself, including with the help of a defender;
  • Arbitrariness in the choice of evidence, ignoring of apparent facts;
  • The use of the norms of the law irrelevant in the circumstances;
  • Selective (discriminating) nature of the court persecution comparing to the similar cases of other persons[21].
  • Accusatory propaganda campaign, defamatory publications, often with the disclosure of covert investigative data[22].

The case of Sergiy Pashinskyhas a clearly political nature.

In connection with the position of the head of Security and Defense Committee of Verkhovna Rada of Ukraine and the work associated with increasing the defense of Ukrainian army, Sergiy Pashinsky became the subject of constant media attacks by the Russian Federation which is recognized in Ukraine as an aggressor country on the legislative level:

  • A story on NTV about the shooting of Maidan[23], a custom movie, allegedly filmed by Italian journalists[24],
  • “Pashinsky, the Butcher of Maidan”[25],
  • “Who is Pashinskiy and how he ended up in power”[26],
  • The video by Shariy: “the investigation on Pashinsky – the terrorism”[27], alleged conversations of Pashinsky[28],
  • The video by Shariy: “Sergiy Pashinsky – embezzler with history”[29],
  • “Untouchable: which is the role of Pashinsky “the shooter” in the case of Maidan murders”[30],
  • “ Are Parubiy, Pashinsky and Avakov guilty in the death of the “heavenly hundred”? Photofacts for Ukrainian skeptics»[31],
  • “Pashinsky fired his machine gun in short bursts”[32].
  • “Andriy Kluyev called a public deputy, Sergiy Pashinsky, one of the organizers of the shooting on the Maidan”[33] and many other.

As a result of the monitoring of the informational attacks which increased before each court hearing, on a number of black exchanges in DarkNet[34] there were found requests for the negative comments to the videos with Pashinsky tag on Youtube. All payments for the negative comments were conducted in rubles. The monitoring of the paid informational messages, as well as custom articles, program stories and video blogs showed that millions of euros are spent on the destruction of Pashinsky’s reputation and the creation of the image of a villain.

After Volodymyr Zelensky and “Sluha Narodu” party came to power, Sergiy Pashinsky, who lost the parliamentary election, became a convenient target for the PR of the new government. Given the great demand of the society for the repressive methods of fight against corruption, Volodymyr Zelensky, a presidential candidate, promised in his election campaign the quick incarcerations of the persons suspected of corruption. The main motto of his election campaign was an expression: “The spring comes – we will plant”[35]. Another of his campaign promises was peace in Donbas and the return of the temporarily occupied territories to Ukraine”[36].

Human rights activists have on many occasions stated that the Kremlin uses the hostages to reach its political goals. And despite the fact that such actions are a gross violation of the international humanitarian law, that they can be qualified as a war crime, they became a part of the Minsk Process. The sources state that one of the conditions for release of the prisoners of Kremlin, exchange of prisoners and the further peaceful regulation is the criminal persecution of the leaders of Maidan who came to power after the Revolution of the Dignity and led parts of Ukraine against the occupation. The Deputy of State Duma of the Russian Federation, Sergiy Markov, stated that Gritsak, Avakov, Muzhenko, Turchynov, Pashinsky and Parubiy are “the persons most responsible for the terror of 2014”, and in Kremlin Zelenskiy faced the ultimatum: it was necessary to conduct a thorough investigation concerning those persons, they all had to receive real and very significant prison terms. “While they are free the reunification of Donbas with Ukraine is out of the question”[37].

It is also well-known that in Kremlin the dates are traditionally liked. The conquering of cities, invasions, and demonstrative repression for the holidays. Many consider Pashinsky’s arrest on Putin’s birthday not accidental: “Pashinsky’s incarceration fits perfectly in the new foreign policy in Ukraine. This logic is called “peace for any price”, and it has not only a military, but also an ideological component. Within it it is great to show our Northern neighbors that official Kyiv seems to repent for the “sins of the Maidan”, it is sorry for the start of ATO operation in the East”, – stated the Chief Editor of LB.ua Sonya Koshkina – “The heads” of Pashinsky and Parubiy (probably, Turchynov, too) are an awesome gift for the Russians. Especially when the incarceration of the first one is carried out ... on the birthday of Volodymyr Putin. An interesting coincidence, isn’t it?”[38]. Putin’s regime’s interests and the interests of former Ukrainian politicians and the entourage of Yanukovych are reflected in Pashinsky’s persecution[39]. The trial of Sergiy Pashinsky and his imprisonment were accompanied by a wave of informational attacks against him[40].

The election promise of the President about the “incarcerations” can be considered another aim of Pashinsky’s persecution. During his press marathon the President of Ukraine, Volodymyr Zelensky, answered the questions of the journalists with the following: “When I arrived, on the second day I thought that we would incarcerate everybody – all corrupt officials. But when the first handcuffs were on… everybody said “oh no-no”, the President does not have the right to influence the law-enforcement bodies. Me: “Ok”, and can I gather councils and talk to law-enforcement officers about their actions? Yep, I can. And if a bandit wanders the street, everyone calls me and says: “this person kills, lies, they must be a deputy”… May I ask them: where are the incarcerations of such people? Well, you may, but very carefully. So I must choose my words. Heavens forbid it would be an influence… Go outside and ask people, is Pashinsky a bandit or not? I give you 100%, you ask a hundred people – a hundred people will say yes“[41].

In his speech the President grossly violated the principle of presumption of innocence enshrined in Art. 62 of the Constitution of Ukraine and §2 of Art. 6 of ECHR. In the case “Krivolapov v. Ukraine” ECtHR stated that careless public statements of the representatives of the state concerning the person’s guilt at the stage of the investigation violate the principle of presumption of innocence and affect the impartiality of the court. ECtHR emphasized that according to well-established case law, §2 of Art. 6 of the Convention prohibits the officials from declaring a person guilty before his or her conviction by the court. The Court also pointed out that such statements of the state officials держави encouraged the public to believe that the applicant was guilty, and influenced the assessment of the facts by the responsible court body[42]. The presence of systemic violations of the presumption of innocence by the state authorities was also stated by ECtHR in the case “Shagin v. Ukraine”: “The Court reiterates that the principle of presumption of innocence enshrined in paragraph 2 of Article 6 of the Convention (995_004) is one of the aspects of the right to fair trial of a criminal case guaranteed by paragraph 1 of Article 6 (see decision in the case of “Allenet de Ribemont v. France” of 10 February 1995, para. 35, Series A, No. 308). This principle not only prohibits a premature expression of opinion by the court stating that the person “accused of a crime” is guilty while it is not yet proved according to the law, but also extends to the statements made by other state officials concerning the ongoing proceedings in the criminal cases, which encourage the public opinion on the guilt of the accused and determine in advance the assessment of the facts by a competent court body (see the findings of the relevant Court case law, for example, in the decision in “Khuzhin and Others v. Russia” case, No.13470/02, para.93, of 23 October 2008)[43].

On November 7, 2019 the President of Ukraine stated in his video blog: “Not too many incarcerations? Hasn’t started yet? I both agree and don’t. Look: There are the cases of Svinarchuks, Pashinsky, Mykytas, Dubnevych. You could even see that in Verkhovna Rada not everyone voted for the (application for — editor) Dubnevych. Everyone is afraid of the same attitude towards them. And they are right to be afraid, the attitude will be the same. And then the people I mentioned will receive sentences. And if they don’t – the new cases will open, and nobody will stop”[44]. The President’s statement: “ And then the people I mentioned will receive sentences. And if they don’t – the new cases will open, and nobody will stop” exactly corresponds to a well-known phrase by А. Vyshynsky “If only there was a person – an article could be found”[45]. It can only be interpreted in such a way that the main target of the persecution is the person and not the offence that he or she committed.

In the movie “The Year of President Zelensky” Volodymyr Zelensky criticizes the law-enforcement bodies, Prosecutor General’s Office and courts for the lack of “incarcerations” and states, in particular: “There were Svinarchuk, Pashinsky, Grymchak, others... and what’s the result? The court let them go. The judicial reform, to put it mildly, is imperfect, and there is a lot of work left in this direction”[46]. Thus the President instructs the courts to implement his election promises– “incarcerations”.

The Chief Editor of LB.ua, Sonya Koshkina wrote on her Facebook page: “The President’s Office really had more meetings with the security forces, on the topic of “where are the incarcerations”. And not just incarcerations, but “quick and such that would be liked by people”. Un/lawfulness is not important (I am not kidding). It was really discussed in such tone. The key words are “quick” and “liked by people”. Four priority cases were defined during the discussion. The first one is Poroshenko (everything is clear here). The second is Pashinsky. Zhevago is the third one (he was declared wanted yesterday). I do not know the fourth one yet. I am on it. To be frank, I did not believe at first. I thought that the source did not convey the meaning the right way – that it omitted or distorted something etc. Because the President’s Office cannot discuss the order (!!) and priority (!!) of the cases to be “quick” and “liked by the people”… But it turned out that it was not just the President’s Office, but also a narrow circle of the deputies who ... voted by raising their hands (eight persons voted against that)”[47]. We have learned about this meeting with security forces in the President’s Office even earlier, from other sources which we cannot name.

After the meeting with the President the higher officials: the Director of SBI, Roman Truba, and Prosecutor General of Ukraine, Ruslan Ryaboshapka, who carried out the procedural management in Pashinsky case, also took active part in the discrediting of Sergiy Pashinsky, commenting not only on the circumstances of investigation of that case, which poses a public interest, but also expressing their tendentious position, adding that he will be a party to other high-profile corruption-related cases:

  • Ryaboshapka sees “a certain connection” between Gladkovsky and Pashinsky cases[48];
  • Pashinsky may become a party of three other criminal proceedings – Ryaboshapka[49];
  • The investigators from Prosecutor General’s Office shielded a former people’s deputy Sergiy Pashinsky – Truba[50];
  • PGO “moderated the investigation for the benefit of a people’s deputy” – Truba[51]

The existence of the political nature of the persecution is also evidenced by the constant changes of the group of prosecutors, against the requirements of pt. 2 of Art. 37 of CCP, without good reason required by pt. 3 of Art. 37 of CCP. The fact that the procedural management in a case with one suspect, for one episode of infliction of bodily harm in the state of necessary defense, during a domestic conflict was carried out by the groups of prosecutors from the Prosecutor General’s Office ranging between 13 and 21 persons headed by the Prosecutor General, is a direct indication of politically motivated persecution.

Another fact that indicates the political motivation of the persecution is also politically motivated resignation of a prosecutor, Vitaliy Martynenko, who once closed the case against Pashinsky[52].

ECtHR has already examined the cases in which the criminal persecution has the hidden political or economical motivation (Gusinskiy v. Russia, §73-78; Khodorkovskiy v. Russia, §254; OAO Neftyanaya Kompaniya Yukos v. Russia, §665; Khodorkovskiy and Lebedev v.Russia, §889; Nastase v.Romania (dec.), §109; Tchankotadze v. Georgia, §114; Merabishvili v. Georgia [GC], §332). In “Тимошенко проти України”[53] case, §296 ECtHR points out the general similarity of the circumstances to the circumstances in “Lutsenko v. Ukraine”[54] case. In both cases soon after the change in power, the applicants who were a former Prime Minister of Ukraine and the Minister of the Interior, were accused of abuse of power and brought to criminal liability. Many national and foreign monitors, including various non-government organizations, media, diplomatic circles and individual public figures, believed those events to be a part of politically motivated persecution of the opposition leaders in Ukraine[55].

The informational campaign aimed at discrediting Sergiy Pashinsky greatly affected his private and family life. Here we can see the violations of the right to respect to private life in the context of Article 8 of ECHR, while two countries violated that right simultaneously: The Russian Federation and Ukraine. This case can become a novel in ECtHR practice for Art. 8, because until now ECtHR case law in this part concerned the balance of the freedom of speech (Art. 10 of ECHR) and respect to private life (Art. 8 of ECHR). When the subject is a public person, the court evaluates the level of public interest in the information an publicity level of the person. The court also assesses the good faith level of the publication. However, this practice concerns the cases regarding the protection of honor, dignity and business reputation of the public persons concerning whom the information was distributed by independent journalists and media (“Ojala and Etukeno Oy v. Finland”[56], “Bladet Tromsø and Stensaas v. Norway”[57] and others). In “Hanover (Princess of Hanover) v. Germany” case the Court emphasized the importance of the protection of private life from the point of view of development of each person’s individuality and stated that each person, including the people well-known to the public, must have a “legitimate expectation” that their private life would be protected[58]. However, in this case there is an intentional campaign aimed at discrediting Sergiy Pashinsky, inspired by RF, as well as the statements by the President of Ukraine and other high state officials.

An unreasonably severe preventive measure, the one which clearly violates the right to freedom and personal integrity, is also one of the signs of political persecution. For us the violation of Art. 5 of ECHR is doubtless, and it lies in the following.

During the application of the preventive measure the investigating judge determined the validity of Pashinsky’s suspicion, however, he did not directly study the testimony of the witnesses, only referring instead to the minutes of their questioning. The judge also established the presence of the risk of hiding from the pre-trial investigation and court bodies, referring only to the seriousness of a possible punishment. The status of a former people’s deputy of Ukraine, in the past – the position of the head of VRU Committee, membership in the Military Council of “Narodniy Front” were misinterpreted by the judge as “the presence of close social ties with the heads of state authorities and law-enforcement bodies, which Pashinsky could use with the aim of avoiding the criminal responsibility”. The judge also referred to multiple crossings of the state border by the suspect, which clearly could not indicate the risk of absconding. Pashinsky’s positive characteristics in the form of responsible positions, awards and distinctions were used by the judge as the grounds for the need to hold the suspect in custody. The judge did not consider the possibility of applying a more lenient preventive measure. The risk of obstructing the criminal proceedings was not confirmed by the actual data.

In “Tymoshenko v. Ukraine” case (§266) ECtHR emphasized the fact that the justification of any period of detention – regardless of how short it was – must be convincingly proven by the state authorities, and in §270 ECtHR states that a possible obstructions for the establishment of truth in the case are not included to the list of causes which could justify the detention for the subparagraph “c” of Article 5, paragraph 1 of the Convention [59].

The investigator violated the rules of territorial jurisdiction while filing the relevant petition, and the investigating judge did not have the power to examine such petition, however, he examined it. The investigating judge did not study any of the documents added to the investigator’s petition, however, he granted the decision, referring to them. In the justification of the suspicion the investigating judge referred to the documents which were not added to the investigator’s petition and were not in the possession of the court. Pashinsky voluntarily appeared for numerous investigative actions, without hiding from the investigation before the criminal proceedings were closed or after their re-opening. The investigating judge on his own accord established the existence of the risk of use of social ties with the aim of avoiding the responsibility, which was not alleged by the prosecution. Pashinsky’s positive characteristics in the form of responsible positions, awards and distinctions were erroneously used by the judge as the grounds for the need to hold the suspect in custody. The appellate court did not rectify the mistakes of the investigative judge. At the same time the appellate court did not provide any actual data which would indicate the presence of the risks of obstructing the criminal proceedings. Moreover, referring to the case-law of European Court of Human Rights (without naming a particular decision) the appellate court states, that “a court decision must ensure not only the rights of the suspect, but also the high standards of protection of general society rights and interests, which requires from the court a greater level of strictness in the assessment of the violations of society values”. This indicates the misconception of the appellate court concerning the requirements of Art. 5 of the Convention. The submissions of the defense provided in the appeal were left without attention by the court.

By extending the preventive measure, the investigative judge once again violated the rules of territorial jurisdiction and examined the investigator’s petition without having the power to do that. The judge also referred to the need for conducting a wide complex of procedural actions, the need for conducting which was proven by the prosecutor during the court hearing. However, the judge did not indicate which particular actions the prosecutor needed to carry out and which circumstances prevented the prosecution from conducting them before the expiration of the term of detention. Without referring to any particular facts or evidence the judge established the presence of all risks envisaged by Art. 177 of CCP, even those that were not established during the selection of a preventive measure. Without any reasoning the guarantors’ applications for taking Pashinsky on bail were denied. The court did not examine the possibility of application of a more lenient prevention measure. The investigating judge also left without examination the submissions of the defenders regarding the unfounded suspicion and did not provide the assessment of the evidence provided by the defenders. The judge did not pay attention to the evidence of due procedural conduct of the suspect, confirmed by the minutes compiled with his participation.

Although the appellate court took into account the fact that the case file materials lacked the data which would indicate that on freedom the suspect was hiding from pre-trial investigation and court bodies, obstructed the criminal proceedings, committed other criminal offences or unlawfully influenced the witnesses or the victim, it did not provide any actual data which would confirm the need for house arrest of the suspect.

During the extension of the preventive measure for Pashinsky the investigating judge once again justified his decision by the seriousness of the criminal offence which the applicant is suspected of committing. Without providing particular circumstances of the case, without referring to any evidence the court using general phrases indicated that the prosecutor has proven the presence of the suspect’s risk of absconding and the impossibility to apply a more lenient preventive measure. At the same time the judge once again violated the rules of the territorial jurisdiction for the examination of the investigator’s petition. The judge has also established the validity of suspicion against Pashinsky on the ground of the minutes of the questioning of other persons without calling and questioning them directly in the court hearing. The judge did not pay attention to the evidence provided by the defense and did not justify why he did not accept them. The judge did not study all materials added to the investigator’s petition and refused to demand from the prosecution the additional evidence that was obtained during the investigation and testified in favor of Pashinsky. The judge did not indicate why the alleged risks did not decrease and continued to exist with the passage of time and after investigative actions. The judge also did not provide the convincing arguments concerning why the use of a more lenient preventive measure, with imposition of a relevant obligation would not provide the proper procedural conduct of the suspect and prevent even imaginary risks. The court did not provide the assessment of the perfect procedural conduct of the suspect.

ECtHR often established the violations of paragraph 3 of Article 5 of the Convention in the cases, in which the domestic courts extended the detention of the applicants referring mainly on the seriousness of the accusations and using template wording, even without examining the particular facts or the possibility of applying the alternative preventive measures, – “Orlovsky v. Ukraine”[60], “Khanrhcnko v. Ukraine“[61], “Tretyakov v. Ukraine”[62] and others. In “Ilijkov v. Bulgaria” case, §84, ECtHR emphasizes that the extension of detention can only be justified in the presence of specific signs of the real demand of public interests, which despite the presumption of innocence prevails over the rule of respect to personal freedom[63].

In our opinion, holding Pashinsky in custody and applying the house arrest was not necessary in the given circumstances.

The investigating judge stated that at the time of committing the criminal offence the applicant held the position of the head of Verkhovna Rada of Ukraine Committee, and such conduct is “clearly unacceptable for a person of such rank who has a number of awards and distinctions”. It also “created the negative impression of disorder and impunity in the system of state authorities in the eyes of the public“. Thus, before solving the issue of Pashinsky’s guilt the court already referred to him as a person who committed a crime, which again indicates a violation of the principle of presumption of innocence (para.2 of Art. 6 of ECHR).

Conclusion

Sergiy Pashinsky is a victim of the political persecution. The aggregate analysis of the facts of the case indicates that the political motivation of Pashinsky’s persecution is caused by illegitimate considerations of the social and political nature of the high state officials. The sudden re-opening of the pre-trial investigation against him and the start of his criminal prosecution long after the closure of the criminal proceedings and after the expiration of the maximum statutory terms of pre-trial investigation were conducted with political motivation, namely, the wish of President Zelensky and his full team to show that he keeps his promises to fight against crime, in particular, with corruption-related crimes, to initiate the criminal persecution and provide the “incarcerations” of well-known persons from among the representatives of the previous power and thus to increase his political rating. The political persecution of Pashinsky was also a revenge of his political opponents for his opposition activities, protection of rights of political prisoners of Yanukovych regime, participation and assistance in the organization of the Revolution of Dignity, as well as the protection of sovereignty and territorial integrity of Ukraine during the armed conflict with the Russian Federation. The violations of Sergiy Pashinsky’s rights can be considered in the context of violation of the right to freedom and personal integrity (Art. 5 of ECHR), violation of the right to fair trial in the part of the violation of presumption of innocence (para.2 of Art.6 of ECHR), violation of right to respect for private life (Art. 8 of ECHR) and the political aims of restriction of Convention rights and freedoms (Art. 18 of ECHR).


[1] https://www.youtube.com/watch?v=98lu-AYioos

[2] https://www.youtube.com/watch?v=6SzFkf97n_o

[3] https://poltava.to/news/23480/

[4] https://ukranews.com/ua/news/205452-100-prykhylnykiv-tymoshenko-vymagayut-ii-zvilnennya-v-kharkovi

[5]http://www.ukrrudprom.com/digest/Sergy_Pashinskiy_Pslya_Kachanvsko_kolon_Timoshenko_perede_odrazu_na_Bankovu.html

[6] https://glavcom.ua/interviews/121987-sergij-pashinskij-jakshcho-do-30-veresnja-timoshenko-ne-vipustjat-asotsiatsiji-ne-bude.html

[7] https://www.zhitomir.info/news_101246.html

[8]https://ipress.ua/news/v_zakoni_pro_amnistiyu_maie_buty_peredbachene_zvilnennya_yulii_tymoshenko__pashynskyy_42191.html

[9]https://gazeta.ua/articles/politics/_pashinskij-dlya-mene-pitannya-zhittya-i-smerti-podolati-anukovicha/451536

[10] https://helsinki.org.ua/articles/v-ukrajini-stvorenyj-hromadskyj-komitet-zahystu-vid-politychnyh-peresliduvan-dodano-video-z-pres-konferentsiji/

[11] https://zakon.rada.gov.ua/laws/show/974_924

[12] https://zakon.rada.gov.ua/laws/show/974_852

[13]https://uk.wikipedia.org/wiki/%D0%9F%D0%B0%D1%88%D0%B8%D0%BD%D1%81%D1%8C%D0%BA%D0%B8%D0%B9_%D0%A1%D0%B5%D1%80%D0%B3%D1%96%D0%B9_%D0%92%D0%BE%D0%BB%D0%BE%D0%B4%D0%B8%D0%BC%D0%B8%D1%80%D0%BE%D0%B2%D0%B8%D1%87

[14] https://youtu.be/1dxggBeSzBE

[15] https://itd.rada.gov.ua/mps/fraction/page/2612

[16] https://www.cvk.gov.ua/pls/vnd2014/wp300pt001f01=910.html

[17]http://w1.c1.rada.gov.ua/pls/zweb2/webproc2_5_1_J?ses=10009&num_s=2&num=&date1=&date2=&name_zp=&av_nd=%EF%E0%F8%E8%ED%F1%FC%EA%E8%E9&prof_kom=0&is_gol_kom=0&dep_fr=0&stan_zp=0&date3=&is_zakon=0&n_act=&gneu_decision_present=&sub_zak=0&type_doc=0&type_zp=0&vid_zp=0&edition_zp=0&is_urgent=0&ur_rubr=0&sort=0&out_type=&id=&page=1&zp_cnt=20

[18]http://w1.c1.rada.gov.ua/pls/zweb2/webproc2_5_1_J?ses=10009&num_s=2&num=&date1=&date2=&name_zp=&av_nd=%CF%E0%F8%E8%ED%F1%FC%EA%E8%E9+%D1%E5%F0%E3%B3%E9+%C2%EE%EB%EE%E4%E8%EC%E8%F0%EE%E2%E8%F7&prof_kom=0&is_gol_kom=0&dep_fr=0&stan_zp=44&date3=&is_zakon=0&n_act=&gneu_decision_present=&sub_zak=0&type_doc=0&type_zp=0&vid_zp=0&edition_zp=0&is_urgent=0&ur_rubr=0&sort=0&out_type=&id=

[19] Definition of the Civil Committee for Protection against Political Persecution: http://khpg.org/index.php?id=1312443141

[20] The definition belongs to a well-known Russian human rights activist, the first Ombudsman of RF, Sergiy Adamovych Kovalyov.

[21] http://khpg.org/index.php?id=1312443141

[22] http://khpg.org/index.php?id=1540388414&w

[23] https://youtu.be/rG_DTj5YfR4

[24] https://www.youtube.com/watch?v=rGWGnNM4FV8&has_verified=1

[25] https://www.youtube.com/watch?v=iQURoe1Hirc

[26] https://www.youtube.com/watch?v=LjWos1N37sQ

[27] https://www.youtube.com/watch?v=vTPWSGLMakM

[28] https://www.youtube.com/watch?v=x8JFWxr4cMg&feature=emb_title

[29] http://argumentua.com/stati/sergei-pashinskii-kaznokrad-s-istoriei

[30] https://ukraina.ru/exclusive/20180213/1019922408.html

[31] https://jpgazeta.ru/parubiy-pashinskiy-i-avakov-vinovnyi-v-gibeli-nebesnoy-sotni-fotofaktyi-dlya-ukroskeptikov/

[32] https://www.crimea.kp.ru/daily/26794/3828743/

[33]https://gordonua.com/news/politics/klyuev-zayavil-chto-snayperov-na-maydan-privez-pashinskiy-164349.html

[34] DarkNet (also known as the “hidden network”, “Dark Network”, “Shadow network:, “Dark web”) is a hidden network, the connections of which are only established between the trusted peers, (“friends”), with the use of non-standard port protocols. The anonymous network of unconnected virtual tunnels which provides the transfer of data in the ciphered form. The DarkNet is different from other distributed temporary networks, since the file exchange is carried out anonymously (since the IP-addresses are not publicly accessible), therefore, the users can communicate without particular worries and state intervention) https://en.wikipedia.org/wiki/Darknet

[35] https://glavcom.ua/publications/sadzhati-budemo-do-chogo-gotuyutsya-zelenskiy-i-yogo-komanda-613267.html

[36] https://www.president.gov.ua/news/inavguracijna-promova-prezidenta-ukrayini-volodimira-zelensk-55489

[37]https://replyua.net/putin/167167-v-kremle-vystavili-zelenskomu-ultimatum-ili-vy-sazhaete-ih-v-tyurmu-ili-nikakogo-vossoedineniya-ukrainy-s-donbassom-ne-budet.html

[38] https://lb.ua/news/2019/10/08/439203_keys_pashinskogo_pereyaslavskaya_rada.html

[39] https://texty.org.ua/fragments/96984/Pashynskyj_u_2014_nakazav_vybyty_Girkina_zpid-96984/

[40] https://news.rambler.ru/other/42958497-vor-i-bespredelschik-ot-maydana-chem-znamenit-sergey-pashinskiy-na-ukraine/

[41]https://censor.net.ua/ua/video_news/3153166/zapytayite_u_lyudeyi_na_vulytsi_pashynskyyi_bandyt_upevnenyyi_100_lyudeyi_zapytayite_100_vidpovist_tak

[42] https://zakon.rada.gov.ua/laws/show/974_d94

[43] https://zakon.rada.gov.ua/laws/show/974_612

[44] https://www.ukrinform.ua/rubric-polytics/2814026-zelenskij-pererahuvav-rezonansni-posadki-j-anonsuvav-novi.html

[45] https://bulvar.com.ua/gazeta/archive/s49_62568/5017.html

[46] https://www.youtube.com/watch?v=VCkbYp8g4u0&vl=uk (18:04)

[47] https://www.facebook.com/story.php?story_fbid=2878104142212068&id=100000375314745

[48]https://nv.ua/ukr/ukraine/politics/ryaboshapka-sprava-gladkovskogo-pashinskiy-novini-ukrajini-50048853.html

[49]https://tsn.ua/politika/pashinskiy-mozhe-stati-figurantom-sche-troh-kriminalnih-provadzhen-ryaboshapka-1428600.html

[50]https://www.ukrinform.ua/rubric-polytics/2795900-truba-zvinuvacue-gpu-u-pokrivanni-eksdeputata-pasinskogo.html

[51] https://www.radiosvoboda.org/a/news-sprava-pashynskogo-dbr-truba/30207449.html

[52]https://m.censor.net.ua/resonance/3159437/prokuror_vtalyi_martinenko_ya_gotoviyi_do_rozslduvannya_chi_zakonno_ya_zakriv_spravu_pashinskogo_pitannya

[53] https://zakon.rada.gov.ua/laws/show/974_924#n543

[54] https://zakon.rada.gov.ua/laws/show/974_852

[55] https://zakon.rada.gov.ua/laws/show/974_924#n543

[56] https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-139991%22]}

[57] https://hudoc.echr.coe.int/eng#{%22appno%22:[%2221980/93%22],%22itemid%22:[%22001-58369%22]}

[58] https://zakon.rada.gov.ua/laws/show/980_324

[59] https://zakon.rada.gov.ua/laws/show/974_924

[60] https://zakon.rada.gov.ua/laws/show/974_a92

[61] https://zakon.rada.gov.ua/laws/show/974_662

[62] https://court.gov.ua/sud2590/2536/233223/343

[63] http://echr.ketse.com/doc/33977.96-en-20010726/view/


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