SBU gives no grounds for why UOJ journalist should be in pre-trial detention
From the UOJ case, it is clear: Andriy Ovcharenko is being repressed for his journalistic activities.
Dear readers! We continue to publish materials related to Orthodox journalists currently detained in Lukyanivska prison in Kyiv. We do this with one goal: to demonstrate the absurdity of the charges, to show the fabricated nature of the case against the UOJ, and to allow as many citizens of our country as possible to personally witness this.
In this article, we offer you to familiarize yourself with the speech of our website employee Andriy Ovcharenko's lawyer in court. This speech clearly demonstrates that the detention of representatives of our resource in pre-trial detention contradicts not only the fundamental laws of Ukraine but also common sense and elementary legal procedure.
Here is the full speech of Andriy Ovcharenko's lawyer in court:
Respected court!
First of all, I would like to draw attention to Part 3 of Article 199 of the Criminal Procedure Code of Ukraine, according to which a motion for the extension of detention must contain the information specified in Article 184 of the Criminal Procedure Code of Ukraine, including a presentation of the circumstances giving grounds to suspect the accused of committing a criminal offense and references to materials confirming these circumstances. Thus, the justification of suspicion must be addressed by the investigative judge even when considering a motion to extend the term of detention. There is a position of judges who believe that once the investigative judge has determined the measure of restraint, it automatically continues. I believe that such a position is erroneous, I draw attention to this norm and explain why.
Suspicion must be justified each time the measure of restraint is extended. The function of judicial control obliges the investigative judge to draw a conclusion about the justification of suspicion directly, for which the judge must analyze the constituent elements of this suspicion and identify substantial evidence indicating the proven occurrence and legal qualification. Otherwise, any law-abiding person, at the desire of the investigator or prosecutor, at any time and without any evidence of guilt, can be designated a state traitor or a participant in a criminal organization with the application of an alternative measure of restraint in the form of pre-trial detention.
This conclusion is consistent with Part 3 of Article 17 of the Criminal Procedure Code of Ukraine, which states that suspicion cannot be based on evidence obtained illegally; Part 1 of Article 178 of the Criminal Procedure Code of Ukraine, which notes that when deciding on the issue of applying a measure of restraint, the investigative judge is obliged, based on the materials provided by the parties to the criminal proceedings, to assess in aggregate all circumstances, including the weight of the available evidence of the suspect's commission of a criminal offense; and subparagraph 1 of Part 1 of Article 194 of the Criminal Procedure Code, which notes that when considering a motion for applying a measure of restraint, the investigative judge is obliged to determine whether the evidence provided by the parties to the criminal proceedings indicates the circumstances justifying suspicion.
Investigator Savenko asserts in the motion that Ovcharenko's suspicion is substantiated by the following materials of the criminal proceedings, in particular the Protocol of NSRD (covert investigative actions) dated June 14, 2023, the Protocol of interrogation of a confidential informant dated November 30, 2023, the Protocol of NSRD dated October 10, 2023, the Protocol of NSRD dated October 9, 2023, the Protocol of NSRD dated January 3, 2024, the Protocol of temporary access to materials of the criminal proceedings, last digits 086, the Protocol of NSRD dated November 10, 2023, the Protocol of NSRD dated July 11, 2023, regarding Ovcharenko, the Protocol of NSRD of the same date regarding Stepanova, and the Protocol of NSRD of the same date regarding Stupnitsky.
However, Investigator Savenko does not attach the relevant evidence together with the motion, instead asking the investigative judge and the defense to take his word for it. Thus, the substantiation of suspicion is not confirmed by anything factual, but only by the authority of the SBU, to which the Solomiansky Court, incidentally, shows great respect.
I also want to note that the motion is filed with a violation of the deadline. I want to emphasize that the investigative judge has no legal grounds to satisfy a motion filed after the deadline has passed, and neither the investigator nor the prosecutor raises the issue of restoring this deadline. This is a separate and sufficient reason for refusing to grant the motion. I request an assessment of this circumstance in the deliberation room.
As for the substantiation of suspicion, based on the formulation we see in the suspicion report, according to the investigator's opinion, corroborated by the prosecutor, after February 24, 2022, Viktor Vyshnevetsky decided to create a criminal organization with the aim of taking actions aimed at undermining Ukraine's information security. For this purpose, Vishnevetsky recruited four individuals into the criminal organization: Chertylin, Zoshchuk, Ovcharenko, and Stupnitsky, whom he informed of the criminal plan and assigned roles as organizers of separate structural units. Each participant consented to committing crimes, in which the pre-trial investigation authority suspects each of them, including Ovcharenko.
Subsequently, in order to implement the criminal plan, Chertylin, Zoshchuk, Ovcharenko, and Stupnitsky recruited Stepnova, Tiulkina, Ovcharenko (Andriy "recruited" his former wife into the criminal organization), Bobechko, and Zabudko at different times. While executing their criminal plan, the participants of the criminal organization prepared and posted publications on the UOJ media resource page, which allegedly incited religious enmity in society and assisted Russia in conducting subversive activities against Ukraine in the information and religious spheres.
To explain to the investigative judge the absurdity of these formulations, it is necessary to go back several years in history to see how the UOJ was formed and what purpose it was created for.
The fact is that from the very beginning of Ukraine's independence, religious conflicts arose on its territory between the canonical religious association, which is the Ukrainian Orthodox Church, and non-canonical religious associations, which were the Ukrainian Orthodox Church of the Kyiv Patriarchate and the Ukrainian Autocephalous Church. At different times, these conflicts reached different scales. Starting from 2015, the Ukrainian Orthodox Church fell out of favor with Mr. Poroshenko, the then-president of Ukraine, who initiated the process of obtaining the Tomos. We all know this, it is common knowledge. The Tomos was received in December 2018, in the same year a new religious association was created – the Orthodox Church of Ukraine.
From this moment, the main national channels, individual journalists, and officials began to promote the idea in society that there are two religious organizations in Ukraine: one "correct" religious organization - the Orthodox Church of Ukraine, which is self-sufficient, independent, patriotic, and Ukrainian, and the other, "incorrect" one – the Ukrainian Orthodox Church, which is fully dependent on the Russian Orthodox Church, which works for the enemy, and so on. These narratives began to be imposed on society.
After 2022, when a full-scale war began in Ukraine, such messages in society intensified through the mass media and individual officials. There was widespread accusation of believers of the Ukrainian Orthodox Church, priests, bishops, and leaders of this association in collaborationism, treason, stories about "Moscow priests"...
So, the UOJ was created in 2015 precisely to cover events in the religious sphere, particularly regarding religious discrimination in Ukraine. This was the sole and primary purpose of the publications, which are now being blamed and marked in suspicion, thereby showing that the state is employing double standards towards religious organizations - implying that "we take away the Kyiv-Pechersk Lavra (the majority of publications are related to the Kyiv-Pechersk Lavra) from the 'wrong' religious organization and immediately give it to the 'right' one." Further, the Orthodox Church of Ukraine begins to serve in the Kyiv-Pechersk Lavra. At the same time, the head of the Ternopil administration declares: "Give us the Pochayiv Lavra, and we will find a way to remove the monks from the Lavra."
The UOJ writes about all this, but now these publications are attributed to inciting religious hatred and assisting the aggressor state in subversive activities in the information sphere.
The European Court of Human Rights (ECHR) has repeatedly pointed out that, according to Article 10 paragraph 2 of the Convention, freedom of expression applies not only to information and ideas that are considered innocuous or are perceived favorably or indifferently but also to those that offend, shock, or disturb the state or a certain part of the population. These are the requirements of pluralism, tolerance, and broad-mindedness, without which a democratic society cannot exist.
Although the press should not overstep certain ethical boundaries and threaten the rights of others, its duty is to disseminate information and ideas on all matters of public interest.
Therefore, the powers and practices of national authorities in controlling the information space, censorship, and influencing journalists are limited by the interest of democratic society. This interest lies in allowing the press to fulfill its vital role as a watchdog of civil society.
The task of the press is not only to convey information and ideas, but the public also has the right to receive them. If it were otherwise, the press could not play the role mentioned. This is the point of consideration in paragraph 42 of the ECHR Decision in the case of Coral Visenau v. Azerbaijan and paragraph 48 of the ECHR Decision in the case of Bed v. Switzerland.
Thus, the UOJ journalists had all legal grounds to cover events that occurred in the religious sphere of Ukraine during 2021-2023. Publications might have been disliked by some, shocked others, or even offended. But this is the price for the right to call oneself a democratic society.
The fact of criminal prosecution for political motives of Ovcharenko is confirmed by the formulations in the suspicion report, which, in particular, state that the goal of the criminal organization, in which Ovcharenko allegedly participated, was the destruction of all attributes of the Ukrainian state, including the Orthodox Church of Ukraine. That is, the investigation associates the religious association "Orthodox Church of Ukraine" with the attributes of the Ukrainian state. However, according to Article 20 of the Constitution of Ukraine, the state symbols of Ukraine are: the state flag, the state emblem, and the state anthem of Ukraine, and Article 35 of the Constitution of Ukraine enshrines the principle according to which the church and religious organizations in Ukraine are separated from the state. Thus, the state, represented by the SBU, had no right to protect one religious association while destroying another.
The suspicion report regarding Ovcharenko's treason is based on the conclusions of a comprehensive psycho-linguistic examination. The examination, in turn, contains conclusions only regarding the goals allegedly pursued by specific publications. In particular, the examination indicates that the publications placed on the UOJ media resource page are purportedly intended to deliberately influence certain groups of the population of Ukraine, to demoralize the people and the army, to create informational prerequisites for social upheaval in the country. They are also allegedly aimed at undermining the moral spirit of the population and the army of Ukraine and actively implanting in the consciousness of the country's population the idea of the incorrectness of Ukraine's current external and internal political course.
It saddens me to read the formulations of these experts, psychologist, and linguist, but I want to draw the respected court's attention to the fact that the morale of the population and the army of Ukraine is undermined in every case when society learns about any fact of corruption among the highest military-political leadership of Ukraine. I know many cases where people refuse to serve in the army, citing the reason that "they buy eggs there for 17 hryvnias, and we have to give our lives for this country." That's the kind of demoralization that occurs. And public opinion about the incorrectness of Ukraine's external and internal political course is reinforced every time society learns about the ineffectiveness of certain management decisions of the current authorities.
Obviously, any journalistic publication that objectively criticizes the current authorities may have certain negative consequences in the state and society. According to the logic of the investigation, any journalistic publication in which the current authorities are portrayed in a negative light or which covers sensitive issues for Ukrainian society is considered assistance to the Russian Federation in conducting subversive activities against Ukraine. However, a democratic country is distinguished from a totalitarian state precisely by pluralism of opinions and freedom of speech. Repression against journalists is the first and most important step towards building totalitarianism and dictatorship in the country.
It is worth noting that the pre-trial investigation authority holds Ovcharenko criminally liable twice for the same act, which is a direct violation of Article 61 of the Constitution of Ukraine. The investigation claims that certain publications were duplicated on federal channels of the Russian Federation. Then, according to the logic of the investigation, organizing an illegal rally on a pedestrian crossing in Ukraine, which will be broadcast by Russian federal channels, should be qualified under Articles 111 and 217 of the Criminal Procedure Code of Ukraine.
<...> Ovcharenko did not have any relations with representatives of the Russian Federation and did not discuss with them any plans to assist the Russian Federation in conducting subversive activities against Ukraine. It is also worth noting that Ovcharenko communicated with Viktor Vyshnevetsky, whom the investigator and prosecutor named as the founder of the criminal organization, only twice in his life. During the first meeting, the question of the functioning of various media in Ukraine was discussed. During the second meeting, recommendations were exchanged on how to attract a wide audience to Christian themes.
As for Chertylin, who, according to the investigator and prosecutor, was the organizer of a structural unit and who Vyshnevetsky brought to work together with Ovcharenko, the latter was not acquainted with him at all and never communicated with him. How could he possibly lead a criminal organization in which the leaders of structural units did not know each other, and the leader of the criminal organization communicated with the leader of the structural unit of this organization only twice in his life? In which no plan for committing crimes was ever discussed? In which Ovcharenko never gave his consent to the commission of serious and especially serious crimes? Yet somehow they are members of a criminal organization? It's very strange and very unclear.
As for the suspicion of state treason and inciting religious hatred, it is worth noting that Ovcharenko is suspected in 34 episodes. Each episode concerns a separate publication posted on the UOJ resource page. However, as indicated in the suspicion message itself, according to the investigation, Ovcharenko was only involved in six publications. The pre-trial investigation authority notes that Vishnevetsky, being the leader of the criminal organization, instructed Ovcharenko and other journalists to prepare the text of six publications, namely: "Supporters of the OCU seize the Archangel Michael temple in Bilohorodka." Also, the publication: "Deputies of the Rivne City Council take away land plots from UOC under churches." The third publication: "We are against the blackening of crosses: Macedonians about refusing to serve with the OCU." The fourth publication: "Chernivtsi diocese reports on impending storming of the church in Zadubrivka." The fifth publication: "In Novy Korets, Rivne Diocese, OCU supporters seize the UOC church." And the sixth publication: "In Bila Tserkva, believers protest against the transfer of UOC cathedral to OCU."
Vyshnevetsky allegedly instructed Ovcharenko to prepare the text for these six publications. However, the suspicion message contains no assertions that Ovcharenko took any actions regarding the preparation, coordination, editing, or posting of these publications. If Ovcharenko did not prepare the text, did not edit it, did not post it, then what was his actual role in these episodes? What did he actually do that he is accused of committing a particularly serious crime? Based on the text of the suspicion, this remains unclear.
Let's suppose that in these formulations, we are taking the position held by the pre-trial investigation authority, i.e., in accordance with Article 30 of the Criminal Code of Ukraine, the organizer of a criminal group or organization shall be criminally liable for all criminal offenses committed by the organized group or criminal organization if they are covered by their intent. Other participants in the organized group or criminal organization shall be criminally liable for criminal offenses in the preparation or commission of which they participated, regardless of the role each of them played in the criminal offense.
If only six episodes involving Ovcharenko are mentioned in the suspicion message, then it is unclear why Ovcharenko is suspected in 34 episodes, even if the pre-trial investigation authority does not assert that he was involved in these episodes. Obviously, in this case, the suspicion is not justified under the following articles: Part 2 of Article 111, Part 4 of Article 128, and Part 3 of Article 161 of the Criminal Code of Ukraine.
Ovcharenko had no intent to provide assistance to the Russian Federation and its representatives in conducting subversive activities against Ukraine. Ovcharenko did not have any relations with representatives of the Russian Federation and never discussed with them any plan to assist the Russian Federation in conducting subversive activities against Ukraine. The suspicion message contains no assertions about Ovcharenko's involvement in preparing, editing, coordinating, or disseminating materials that justify or deny Russian armed aggression.
Share this article because making everything public gives us hope that the court will finally return to the path of legality, and the judges will listen not only to the facts of innocence presented by the arrested journalists but also to their conscience.
