16. 04. 2025
On 2 April 2025, the High Anti-Corruption Court held a court hearing in criminal proceedings No. 52022000000000228 against Oleksandr V. Dubilett, who is accused of committing criminal offences under Part 2 of Art. 28, Part 1 of Art. 366, Part 2 of Art. 28, Part 2 of Art. 366, Part 5 of Art. 191 of the Criminal Code of Ukraine (related to embezzlement of funds of PJSC CB Privatbank, legalisation of criminal proceeds and official forgery of documents, which caused significant financial losses to the bank), Volodymyr A. Yatsenko under Part 5 of Art. 191, Part 3 of Art. Article 209 of the Criminal Code of Ukraine, Olena A. Bychykhina under Article 191, paragraph 5, Article 209, paragraph 3 of the Criminal Code of Ukraine, Nataliia V. Onyshchenko under Article 191, paragraph 5, Article 209, paragraph 3 of the Criminal Code of Ukraine, Lyudmyla O. Shmalchenko under Article 27, paragraph 5, Article 191, paragraph 5 of the Criminal Code of Ukraine, and Nadiia O. Konopkina under Article 27, paragraph 5, Article 191, paragraph 5 of the Criminal Code of Ukraine. The hearing was attended by the defendants (via video link), defence counsels, the prosecutor and the panel of judges: Inna O. Bilous, Viktor V. Nogachevskyi, with Markiyan V. Halabala presiding. The victim’s representatives were absent from the courtroom.
The key subject of the court hearing was the continuation of consideration of the defence’s motions to return the indictment. In total, six such motions were announced during the trial, in the interests of each of the accused.
In particular, the defence counsels of Oleksandr V. Dubilet substantiated their motion with the following:
- personal data of the accused, including his place of residence, were incorrectly stated in the indictment, as the accused does not live at the address indicated in the indictment. Moreover, at the time the indictment was drawn up, Oleksandr V. Dubilet was outside Ukraine – in the State of Israel – on legal grounds, which was duly reported to the pre-trial investigation body with the provision of relevant supporting documents;
- the description of the actual circumstances in the text of the indictment is internally contradictory, which, in the opinion of the defence, makes it impossible to clearly understand the charges;
- The legal qualification of the act does not correspond to the described circumstances of the case, as a result of which, according to the defence, the scope of the charge becomes unclear, and therefore the right to be informed in an understandable manner of the nature and grounds of the charge (Article 6 § 3(a) of the European Convention on Human Rights) is violated;
- the structure of the indictment does not meet the requirements of the CPC of Ukraine. In particular, the IAC ISHR observer drew attention to the comments of the lawyers that the factual circumstances completely duplicate the text of the indictment, which is 400 pages long, which, in the opinion of the defence, complicates the exercise of the right to effective preparation for the defence (Article 6 § 3 (b) of the European Convention on Human Rights);
- the case file contains contradictory information about the date of the indictment: the document itself states on 5 March 2023, while the register of pre-trial investigation materials indicates a different date – on 4 March 2023, which, according to the lawyers, creates legal uncertainty about the procedural status of the document
- the indictment does not have any attachments.
According to the defence, all of these violations are significant, given that the indictment does not allow to properly establish the scope of the charges against each of the defendants. According to the defence counsels, this deprives the defendants of the opportunity to exercise their right to prepare an effective defence and contradicts the requirements of Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial.
Bychikhina’s counsels also stressed that the legal qualification of the incriminated acts is internally contradictory, which makes it impossible to understand the essence of the charges. In addition, the text of the indictment sets out the factual circumstances of each of the accused in the same way, regardless of the content and nature of the specific acts charged, which, in the defence’s opinion, indicates a formal approach of the prosecution and violates the principle of individualisation of criminal prosecution. Onishchenko’s defence counsels pointed out the discrepancies between the wording of the accusation in the indictment and the content of the notice of suspicion. As noted, the indictment does not contain certain elements previously mentioned in the notice of suspicion, while new wording has appeared that is not supported by the factual circumstances. Such inconsistency, according to the defence, calls into question the clarity and predictability of the charges, which is a direct violation of Article 6 § 3(a) of the European Convention on Human Rights.
Summing up, the common position of the defence regarding the materiality of the above violations, which make it impossible to exercise the right to defence and devalue the very essence of the prosecution. In this regard, the defence counsels insisted on the need to return the indictment to the prosecutor to eliminate the identified violations.
In its response, the prosecution stated that, in its opinion, the statement of factual circumstances in the indictment had not changed significantly compared to the notice of suspicion. Regarding other comments, the prosecutor acknowledged the existence of certain procedural inaccuracies, but described them as technical errors caused by the significant volume of the indictment (about 400 pages), which, in his opinion, do not have a significant impact on the substance of the charges and do not violate the rights of the accused.
The IAC ISHR observers also noted that, in the prosecutor’s opinion, possible contradictions or inaccuracies in the presentation of certain data do not affect the actual content of the indictment and do not impede a proper understanding of the nature of the alleged acts. In particular, while acknowledging the discrepancy between the date of the indictment (5 March 2023) and the date of its entry into the pre-trial investigation register (4 March 2023), the prosecutor stated that this discrepancy was not significant in the context of the criminal proceedings. Similarly, the lack of relevance of the personal data of the accused Oleksandr V. Dubilet, in particular, regarding his place of residence, was also substantiated.
Summing up, the prosecution concluded that there were no significant procedural violations that could serve as grounds for returning the indictment to the prosecutor. Accordingly, the prosecutor insisted on continuing the trial.
After considering the motions, the court, having heard the positions of the parties, issued a decision to dismiss them, recognising the defence arguments as not justifying the need to return the indictment.
In view of the above, the experts of the IAC ISHR monitoring mission consider it necessary to emphasise that the indictment is a key procedural document in criminal proceedings, which plays a fundamental role in ensuring procedural certainty and the right to a fair trial.
Unlike a notice of suspicion, the procedural form of which is not always clearly defined and is subject to multiple interpretations, an indictment in national law is a formalised procedural decision that summarises the results of the pre-trial investigation and defines the scope of the prosecution. As provided for by Article 110(4) of the Criminal Procedure Code of Ukraine, an indictment is an act by which the prosecutor brings charges of a criminal offence and which concludes the pre-trial investigation. It must meet the requirements set out in Article 291 of the CPC of Ukraine.
In this context, the compliance of the indictment with the legislative requirements, in particular the clarity of the wording of the charges, the logical consistency of the factual circumstances set out and the proper legal qualification, is of particular importance. The presence in such a document of significant internal contradictions, content deficiencies or inaccuracies – especially those that make it difficult or impossible to understand the essence of the charge – poses a risk of violating the fundamental guarantees provided for in Article 6 of the European Convention on Human Rights, including the right of the accused to be informed of the nature and grounds of the charge in an understandable form and to defend himself effectively.
Taking into account the content of the court hearing, in particular the arguments voiced by the parties, the experts of the IAC ISHR monitoring mission consider it appropriate to draw attention to certain procedural issues that may raise concerns in terms of ensuring the standards of a fair trial guaranteed by Article 6 of the European Convention on Human Rights. The defence’s reports of difficulties in determining the scope of the charges and the contradictions in the statement of factual circumstances in the indictment, in the opinion of the experts, may indicate a potential risk of insufficient specification of the charges against each of the accused. This, in turn, may complicate the understanding of the content of the charge and affect the possibility of effective exercise of the right to defence. The defence counsels’ statement that the indictment contains a single generalised statement of circumstances for several defendants, despite the differences in the alleged actions, deserves special attention. This approach, from the point of view of an objective observer, may create a situation in which the individualisation of the charges becomes insufficient, potentially affecting the ability of the accused to properly organise their defence.
The ECtHR emphasises that in accordance with Article 6(3)(a) of the European Convention on Human Rights, everyone accused of a criminal offence has the right “to be informed promptly and in detail, in a language he or she understands, of the nature and grounds of the charges against him or her”. This provision stipulates the obligation of the state to provide the accused with full and clear information on the nature of the charges so that the latter has a realistic opportunity to prepare an effective defence. The ECtHR emphasises that the notification must cover both the legal and factual qualifications of the charge (Vizgirda v. Slovenia, para. 75). Furthermore, it is important to emphasise that subparagraphs (a) and (b) of Article 6 § 3 are interrelated and that the right to be informed of the nature and cause of the charge must be considered in the light of the accused’s right to prepare his defence (Gelenidze v. Georgia, para. 29).
In the light of the above, the experts of the IAC ISHR monitoring mission do not claim any procedural violations, but draw attention to the need for a proper assessment by the court of the above circumstances, given the importance of observing the principle of legal certainty, procedural clarity and the right of every person to be informed in an understandable manner about the nature and grounds of the charges.
Particularly noteworthy is the fact that the representative of the prosecution acknowledged the existence of procedural deficiencies and contradictions in the text of the indictment. In such circumstances, it cannot be stated unequivocally that the defence counsels’ arguments are objectively unfounded. On the contrary, these issues, in the opinion of the experts, require a thorough assessment by the court, taking into account the ECtHR standards on the clarity of the accusation, equality of arms and ensuring the effective exercise of the right to defence.
Experts of the IAC ISHR monitoring mission also note that according to the ECtHR case law, the right to a defence in criminal proceedings is intended to ensure, as far as possible, procedural equality of the parties (F.S.M. v. Spain, paras. 55-56). The accused must have a realistic opportunity to organise his defence properly, including by clearly understanding the charges against him. In this context, doubts also arise as to whether an adequate level of legal certainty is provided. This, in turn, may affect the ability of the accused to effectively exercise their right to defence.
The IAC ISHR observers also drew attention to the statement of the defence lawyers regarding the shortcomings of the register of pre-trial investigation materials. In particular, the defence lawyers emphasised the following circumstances:
- the register does not correspond to the scope of procedural decisions made in the case;
- there is no information on the acquisition of suspect status in relation to all the accused, which makes it impossible to calculate the procedural terms properly;
- the register does not contain information on the performance of all procedural actions.
The prosecutor, in turn, noted that the above circumstances could be the result of technical errors, and therefore are not material violations.
The experts of the IAC ISHR monitoring mission consider it necessary to note that numerous contradictions and technical inaccuracies in the procedural documents can significantly undermine the validity and correctness of the indictment. From the point of view of an objective observer, a significant number of errors creates reasonable doubts as to the overall fairness of the process, the observance of the rights of the accused, the equality of the parties and their right to proper defence.
It is important to add that the principles of competitiveness and equality of arms are closely related and are the main components of the concept of a “fair trial” within the meaning of Article 6(1) of the European Convention on Human Rights. They require a “fair balance” between the parties: each party must be given a reasonable opportunity to present its case under conditions which do not place it at a substantial disadvantage vis-à-vis its opponent or opponents (Đurić v. Serbia, para. 71) Given the circumstances of the case, there are objective doubts as to whether such a balance was properly achieved in the present criminal proceedings.
It is also worth noting that the IAC ISHR observers did not see any obvious signs that the court had properly taken into account the defence counsels’ comments in its decision.
Summarising all of the above, the experts of the IAC ISHR monitoring mission conclude that there are signs of violation of the right to defence (Article 6(3) ECHR), the principle of equality of arms (Article 6(1) ECHR) and, in general, the right to a fair trial in this case. In this regard, the case is recommended for further monitoring.
