On the detention in custody of lawyer Yevhen Korniychuk
Serhiy Konkov, President of the Association of Lawyers of Ukraine has issued a statement regarding the arrest on 22 December 2010 and remand in custody of Yevhen Korniychuk, lawyer and former First Deputy Minister of Justice in Yulia Tymoshenko’s Government.
The statement explains that the Pechersky District Court in Kyiv allowed the application from the Prosecutor General’s Investigator on Particularly Serious Cases and remanded Yevhen Korniychuk in custody. This followed the initiating on 22 December by the First Deputy Prosecutor General of a criminal investigation against Yevhen Korniychuk on charges under Article 365 § 3 of the Criminal Code (Exceeding power or official authority).
“Yevhen Korniychuk is a well-known lawyer, and since 2000 – bar lawyer. He was one of the partners in the leader law firm “Magister and Partners” (“Magisters”) was twice National Deputy [MP] and worked as First Deputy Minister of Justice and in other posts as a public official.
Yevhen Korniychuk is working, has a permanent home in Kyiv, is married and the father of three underage children, one an infant, born on the day that Mr Korniychuk was arrested.
On 22 December 2010 Yevhen Korniychuk responded to the first summons from the investigator and arrived for questioning at the Prosecutor General’s Office where he was arrested during the interrogation.”
Serhiy Konkov states that under such circumstances he considers wrongful the ruling from 30 December remanding Korniychuk in custody, with it not taking into account the conditions which should be assessed when deciding whether remand in custody is appropriate.
He stresses that preventive measures, in accordance with Article 148 of the Criminal Procedure Code, are applied to prevent a person absconding, impeding the course of justice, continuing their criminal activities, as well as to ensure the enforcement of procedural decisions.
They are applied where there are sufficient grounds to believe that the person will try to hide from the investigators or court, avoid enforcing procedural decisions, obstruct the establishment of the truth or continue criminal activities.
If there are insufficient grounds, then a written undertaking is obtained that the person will appear when summoned and will inform if he changes his whereabouts.
Since Yevhen Korniychuk went at first summons to the Prosecutor General’s Office, the choice of preventive measure was clearly made without taking into account the requirements of Article 150 of the Criminal Procedure Code which envisages that when deciding on the preventive measure, as well as the circumstances outlined in Article 148, the gravity of the impugned crime is considered, as well as the state of health, family and material condition, the type of activity, the place of residence and other circumstances which characterize this.
Article 149 of the Criminal Procedure Code envisages several types of preventive measure with remand in custody not being the first. They are: 1) an undertaking not to leave the place; 2) personal surety; 3) guarantee from a civic organization or labour collective; 3-1) bail; 4) remand in custody; 5) supervision by the command of a military unit.
The author stresses that Yevhen Korniychuk’s guilt has not been established by the court and therefore the application of the most extreme preventive measures where many others were available is in contravention of the constitutional principle of the rule of law stating that the rights and freedoms of the citizen are of the highest value.
The Association of Lawyers of Ukraine has consistently upheld the observance of human rights and civil liberties, including in criminal proceedings.
The Association officially states that it considers it unacceptable to remand in custody people accused of certain official crimes and crimes linked with business activities, since in many cases such a preventive measure is an unlawful level of influence on a person only suspected of committed such a crime. In 2010 the Association of Lawyers of Ukraine made a submission to the President regarding appropriate amendments to the Criminal Procedure Code.
Serhiy Konkov is convinced that the ruling of the Pechersky Court to remand Yevhen Korniychuk in custody should be revoked without delay.
He says that if the court should not deem it possible to apply Article 148 § 3 of the Criminal Procedure Code and not order any preventive measure, he will be approaching the Kyiv Court of Appeal stating his willingness to provide a personal written guarantee of the behaviour and appear of the accused whom he has known personally for a long term, and with whom he has had professional dealings. He undertakes if necessary to bring him to the investigation unit or court at their first summons. He says that if necessary, a second guarantor can be provided immediately.
“I am also ready to offer bail for Yevhen Korniychuk if the Kyiv Court of Appeal decides to choose such a preventive measure.
As President of the Association of Lawyers of Ukraine, I consider it my civic and public duty to continue to react appropriately to each case of misuse by the investigative bodies of their procedural rights leading to violations of citizens’ rights and freedoms.”
President of the Association of Lawyers of Ukraine
(Abridged only to avoid repetition of names, terms etc)