27. 05. 2025
On 15 May 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 main subject of the court session was the continuation of the consideration of the defense’s motions in preparation for the trial.
At the beginning of the court session, the defense filed a number of objections to Judge Inna O. Bilous, who is a member of the panel. The corresponding motions were filed in the interests of each of the accused.
In its arguments, the defense emphasized that since February 10, 2025, Judge Inna O. Bilous has been on long leave due to pregnancy, which was later officially extended until June 9, 2025. As noted, after going on leave, the judge addressed the court chairman with a memorandum in which she requested a re-distribution of cases, motivating this by the need to comply with reasonable terms of consideration.
IAC ISHR observers drew special attention to the observation that other judges who considered cases in panels together with Judge Inna O. Bilous also addressed the court president with similar requests for reassignment of cases. As a result of the reassignment, Judge Inna O. Bilous was replaced in at least seven criminal proceedings, while she is officially on leave. At the same time, the participation of this judge in this case continues, which, in the opinion of the lawyers, indicates the selective nature of such involvement and may raise doubts about the objectivity of the court.
The defense also emphasized that the content of the memo itself indicates the judge’s recognition of the need to comply with the principle of reasonable time as an objective basis for refusing to participate in some of the proceedings. However, the judge’s remaining on the panel in this particular criminal proceeding leaves open the question of the criteria by which such decisions are made. The presence of such ambiguous circumstances, given the standards of impartiality and independence of the court, creates objective doubts about the fairness of the trial.
In addition, the defense drew attention to the fact that providing the judge with the opportunity to actually independently determine in which proceedings she will participate creates risks of violating the principle of automatic (automated) case allocation. Such an approach, according to the defense, may lead to the formation of an illegal composition of the court, and also creates a threat of violating the principle of reasonable terms, given the judge’s long absence due to pregnancy.
The defense also emphasized that if the judge referred in her memorandum to the need to comply with the principle of reasonable terms as a basis for terminating participation in other proceedings, then compliance with this principle must be consistent — regardless of the specific case. Selective application of this approach, at one’s own discretion, is unacceptable and undermines confidence in the objectivity of the trial.
In response, Judge Inna O. Bilous noted that the cases referred to by the defense attorneys are not identical in procedural circumstances, and therefore are not comparable. She also indicated that the re-allocation of cases is the exclusive competence of the presiding judge. That is why, according to her, she stopped participating only in those cases in which she acted as the presiding judge.
The prosecutor, in turn, expressed a position that the stated challenges were unfounded, indicating that the defense did not provide a single specific example of procedural decisions that would indicate the judge’s bias. The prosecutor also noted that the fact that the judge was on leave did not terminate her powers as a judge within the relevant proceedings.
After hearing the parties’ positions, the court ruled to refuse to satisfy all stated challenges.
Based on the materials provided, IAC ISHR experts see the presence of factors that may raise reasonable doubts about the impartiality of the trial, in particular, in the behavior of a judge who, during her official leave, continues to selectively participate in the consideration of certain cases, including this one. Such a situation seems contradictory, especially considering that the judge herself previously initiated the re-auto-allocation of cases, referring to the need to comply with the principle of reasonable time limits.
The lack of transparent, understandable criteria explaining the selective participation of a judge in the consideration of cases during her official absence creates a risk of losing trust in the court as an institution that should be a guarantor of independent, objective and impartial justice. Such an approach is incompatible with the principle of automated case allocation, which is recognized as an important guarantee of preventing interference in justice and ensuring the impartiality of the court.
In the light of the case-law of the European Court of Human Rights, in particular the cases of Sigríður Elín Sigfúsdóttir v. Iceland (§§ 45-49) and Saakashvili v. Georgia (§ 122), it is emphasized that the impartiality of the court must be assessed both by subjective and objective criteria. In the situation under discussion, even in the absence of evidence of the judge’s personal bias, the very existence of external circumstances that raise doubts among the parties as to impartiality is sufficient grounds for analyzing the case by objective criteria. According to the position of the ECtHR, the impartiality of the court must not only exist, but also be obvious to an external observer.
In view of the above, the IAC ISHR experts believe that the court should have given a proper assessment of these circumstances and taken into account the objectively justified doubts of the defense, in particular in view of the requirements of Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The insufficient reaction of the court to the stated challenges may indicate an improper application of domestic mechanisms for ensuring impartiality, which, in turn, poses a risk of a potential violation of the right to a fair trial.
The experts of the IAC ISHR monitoring mission also draw attention to the fact that the participation of a judge in the consideration of the case at the preparatory stage, despite being on maternity leave, creates additional risks from the point of view of compliance with the principle of impartiality. Given that such leave, according to the law, can be extended as parental leave until the child reaches the age of three, the participation of this judge in the preparatory proceedings in a case that has not yet been considered on the merits seems unjustified. A situation in which the case is transferred to a panel, none of whose members is absent or does not plan to be absent for a long time, seems rational and procedurally stable.
In the absence of clear explanations regarding the reasons for the judge’s selective participation in cases, such a practice only increases justified doubts about the transparency of procedural management and can be regarded as an impact on the automated allocation of cases. In addition, from the position of the defense, a situation of uncertainty is created regarding the composition of the court and the terms of consideration of the case, which may negatively affect the exercise of the accused’s right to a trial within a reasonable time. The lack of clarity regarding the further course of the trial leaves the defence and the accused in a state of legal uncertainty, which is contrary to the standards set out in Article 6 of the Convention.
In this regard, experts have stressed that, according to the case-law of the ECtHR, a court must not only be impartial but also “established by law”, which includes compliance with the rules on the composition of the court and the procedures for the allocation of cases (Guðmundur Andri Ástráðsson v. Iceland, § 211). Interference with these procedures, in particular in a way that creates even the appearance of procedural instability, can undermine confidence in the court as an institution. As the ECtHR has stressed, the principle of impartiality is closely linked to the requirement of judicial independence, both in its personal and institutional aspects (Suren Antonyan v. Armenia, § 97), and the provision of effective procedures for the removal of judges is a tool that serves to guarantee this independence and maintain the legitimacy of the judicial process (Jóhannes Baldursson and Birkir Kristinsson v. Iceland, § 70).
Taking into account the above, the IAC ISHR experts believe that in this hearing there are signs of a violation of the impartiality of the court (Article 6 § 1 ECHR) and in general the right to a fair trial (Article 6 § 1 ECHR). The case is recommended for further monitoring.
